Perfect 10 Inc v. Google Inc et al

Filing 701

REPLY in support of MOTION for Order for Document Preservation to Prevent Further Spoliation of Evidence by Perfect 10, Inc. #654 [PUBLIC REDACTED] filed by Counter Claimant Google Inc, Defendant Google Inc. (Attachments: #1 Reply Declaration of Rachel Herrick Kassabian in Support Thereof, and Exhibits A-H Thereto [PUBLIC REDACTED])(Kassabian, Rachel)

Perfect 10 Inc v. Google Inc et al

Doc. 701

1 2 3 4 5 6 7 8

QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP Michael T. Zeller ( Bar o. 196417) michaelzeller @ quinnemanuel.com 865 South Figueroa Street, 10th Floor Los Angeles , California 90017-2543 Telephone : [phone] ) 443-3100 Facsimile: Charles K. erhoeven { Bar No. 170151) charlesverhoeven @ qulnnemanuel.com 50 California Street, 22nd Floor San Francisco California 94111 Rachel Herrick Kassabian (Bar No. 191060} rachelkassabian quinnemanuel.com 555 Twin Dolphin rive , Suite 560 Redwood Shores, Callfornia 94065

9 Attorneys far Defendant GOGGLE INC. 10 11 12 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CASE NO. CV 04-9484 AHM {SHx) Consolidated with Case No. CV OST 753 AHM (SHx}] DISCOVERY MATTER Hon. Stephen J. Hillman GOGGLE INC.'S REPLY IN SUPPORT OF ITS MOTION FOR A DOCUMENT PRESERVATION ORDER TO PREVENT FURTHER SPOLIATION OF EVIDENCE BY PERFECT 10, INC. Reply Declaration of Rachel Herrick assabian filed concurrently herewith] Date: January 15, 2014 Time: 10:00 a.m. Crtrm.: 5 S 0 Discovery Cutof:F: None Set Pretrial Conference Date: None Set Trial Date: None Set PUBLIC REDACTED

13 II PERFECT 10, INC., a California corporation, 14 Plaintiff, 15 vs. 1b GOGGLE INC. a corporation; and 17 DOES 1 throug^i 100, inclusive, 18 19 AND COUNTERCLAIM 20 21 22 23 vs. PERFECT 10, INC., a California corporation, . Plaintiff, Defendants.

24 AMAZON.COM, INC., a corporation; A9.COM, INC. a corporation; and 2S DOES 1 throug^I 100, inclusive, 26 27 28
0198RS 13ZO132G8837.1

Defendants.

GOOGLE'S REPLY IN SUPPORT OF ITS MOTION FOR A DOCUMENT PRESERVATION ORDER

Dockets.Justia.com

1 2 3

TABLE OF CONTENTS
Page

4 PRELIMINARY STATEMENT ............................................................................... 1 S ARGUMENT ............................................................................................................ 1 6 1. 7
O

P 10' S OPPOSITION BRIEF DOES CONTEST THAT RELEVANT DOCUMENTS HAVE BEEN DESTROYED ................................................1 A. P10 Does Not Dis^aute _ Or Even Address - T^s F. rnnlnvee
^cr---^-- ^------^^--- - ^'--^----- 'T'--'-^-------- T^--^

.....................1 9 10 11 C. 12 13. 14 H. 15 16 III. P X O DOES NOT CONTEST THAT IT FAILED TO TAKE STEPS NECESSARY TO PRESERVE RELEVANT DOCUMENTS ........................7 NONE OF P10'S COUNTERARGUMENTS HAVE MERIT ........................ 8 D. Other Key P10 Witnesses Lost Or Destroyed Documents During This Litigation As Well .........................................................................4 P 10's Failure To Preserve Documents Also Extends To Its Own Financial Records .................................................................................5 B. P10 Admits That Additional Document Destruction Has Occurred With Respect to Documents Stored on Ms. Augustine's Computer ..............................................................................................3

17 CONCLUSION ......................................................................................................11 18 19 20 21 22 23 24 25 26 27 2$
O 1980 . 5 { 32013206837. [

GOOGLE'S REPLY IN SUPPORT OF ITS MOTION FOR A DOCUMENT PRESERVATION ORDER W!r

1 2 3

TABLE OF AUTHORITIES Page Cases

4 ETrade Securities v. Deutsche Bank AG 23 2 inn. 2 .........................................................................8 5 Hamilton v. Si nature Fli ht Su ort Cor . 2 23 a . ec. 2 , 2005 ) .....................................................8 6 7 Leon v. IPX S s. Cor . ^ t ^r. 2006 ) ................................................................................ $ 8 Yn re NTL, Tnc. Securities Litigation 244 F.R.D. 179 (S.D.N.Y. 2007) ..........................................................................5 9 10 Pueblo of La una v. U.S., e e . C1.2004} ......................................................................1, 10 11 Realnetworks Inc. v. DVD Co Control Assn Inc., 2 2 ,at a. ay ,2 9} ..........................................10 12 I3 14 15 Silvestri v. General Motors Cor . 2 ir. 2 .3 3t ...............................................................................5 Turner v. Hudson Transit Lines Inc., ...........................................................................5

16 United States v. Chen, t Cir.1996) ................................................................................9 17 United States v. ChevronTexaco Co 21 upp. 2 a . 02) ................................................................9 18 19 Zubulake v. UBS Warbur LLC 22^ 03) ...........................................................................5 20 21 22 23 24 25 26 27 28
O l 980 . 5132013268337. I I

.. GOOGLE'S REPLY IN SUPPORT OF ITS MOTION FOR A DOCUMENT PRESERVATION

1 2

Preliminary Statement P10 has now admitted that documents held by key custodians in this case

3 have been lost or destroyed. P10 also has refused to describe the full scope of that destruction, nor has P 10 identified what steps it has taken (if any) to preserve 5 relevant documents. Instead, P10 attempts to draw the Court's attention away from 6 its document preservation failures by levying false accusations against Google, and 7 i insisting that a "mutual preservation order" is the answer. It is not. Preservation 8 orders are issued only as necessary, and only far goad cause shown. P I0's

4 Opposition leaves no doubt that P14 has failed to honor its obligation to preserve 14 relevant evidence; and that absent a preservation order additional documents are in 11 danger of being lost or destroyed. By contrast, P10 has presented no basis far a

12 similar order against Google. P10's reactive posturing has wasted this Court's time, 13 and its groundless "best defense is a good offense" litigation strategy should be 14 rejected out of hand. A document preservation order against P10 should issue. 15 1d I. 17 18 Argument P10'S OPPOSITION BRIEF DOES CONTEST THAT RELEVANT DOCUMENTS HAVE BEEN DESTROYED. P10 does not dispute that emails and other documents of key PIO custodians

19 have been last or destroyed during the pendency of this case, warranting issuance of 20 a document preservation order. See Pueblo of Laguna v. U.S^,, 64 Fed. C1. 133, 138 21 (Fed. Cl. 2004} (document preservation order warranted where proponent shows that

22, opposing party has lost or destroyed evidence in the past or has inadequate retention 23 procedures in place). 24 25 26 27 28
01980 . 5 l32 Qt3268837.1

A.

P1.0 Does Not Dispute - Or Even Address - Its Employee Wendy Augustine's Sworn Testimon That

Ms. Augustine testified under oath that

GOOGLE'S REPLY IN SUPPORT OF ITS MOTION FOR A DOCUMENT PRESERVATION ORDER

1;

. See Declaration of Rachel Herrick Kassabian

2 dated December 2, 2009 (Dkt. Na. 65 $) ("Kassabian Decl.") at Exh. H (Augustine 3 Deposition Transcript at 103:20-104:18). 4 address this testimony. PTO's Opposition brief does not even

Indeed, P10 submits an opposing declaration from

5 Ms. Augustine, yet nowhere in that declaration does Ms. Augustine retract or even b address her prior sworn testimony that 7 See Declaration of Wendy Augustine dated December 10, 2009

8 {"Augustine Decl.") (Dkt. Na. 661). P10 also submits a declaration from its counsel 9 Mr. Mausner, yet nowhere in that declaration does Mr. Mausner contest his IO September 8, 2009 letter to Goggle confirming that 11 See Declaration of Jeffrey Mausner dated

12 December 10, 2009 (Dkt. No. 662); compare Kassabian Decl., Ex . B (9/8/09 letter 13 14 15 16 Instead, P10 offers that the admittedly-deleted emails may (or may not) be from Mausner). Thus, is it undisputed that

17 recoverable through some sari of unspecifed "backup system" P10 claims to 18 maintain. Joint Stipulation on P10's Motion for a Mutual Document Preservation I9 Order ("Opp.") at 2.2 Yet P10 provides no details whatsoever regarding that system, 20 such as what time periods and custodians it covers. See Declaration of Norman 21 ^ Zada dated December 10, 2009 ("Zada Decl ."} at ¶ 3 (Dkt. No. 663). Nar does P10 22 23 24 25 26 27 28
U1980 .5 1 3 2013 2 6B837.] I

^ See Google's Motion (Dkt. No. 657) at 13-14 (explaining Ms. Augustine's role as a critical witness in this case). z As the Court is aware, P 10 fled its "opposition" to Google's Motion in the form of a purported "Joint Stipulation" which includes bath P 10's opposition, and P10's separate motion for its own document preservation order. For ease of reference, Google refers to the Joint Stipulation filed by Google on December 11, (footnote continued)
-G-

GOOGLE'S REPLY IN SUPPORT OF TTS MO'T`ION FOR A DOCUMENT PRESERVATION ORDER

1

explain why it is that, in the more than four months since Google first raised this

2 issue in meet and confer, P10 has not been able to recover even a single one of the 3 lost emails (if in fact they are recoverable). See Kassabian DecI., Exh. A (Google's 4 8125109 meet and confer letter first raising issue of lost P10 emails). 5 P10 cannot play hide the ball with the Court, the way it did with Google

6 during meet and confer. PIO should be ordered to provide the information Google 7 requested in its moving papers, including a complete explanation of what documents 8 were last during what time period and for which custodians, and what portion of 9 these documents (if any} have been or can be recovered from backup sources. See 10 Google's Motion at 19-20. 11 12 13 B. P10 Admits That Additional Document Destruction Has Occurred With Respect to Documents Stored on Ms. Au^ustine's Computer. In its Opposition, P10 admits to additional document destruction involving

1 ^1 Ms. Augustine -^ specif tally, that Ms. Augustine "lost everything on her hard drive, 15 in the fall of 2008," 3 "most likely from a virus." See Opp. at 2; Zada Decl. ¶ 2. P10 16 does not identify the time period of the document Ioss, which it could have done by 17 confirming when (before the fall 2008 hard drive failure} Ms. Augustine's electronic 18 documents were last gathered and produced. P10 again speculates that these lost 19 documents may (or may not) be recoverable through some sort of unspecified 20 21 22 2009 {Dkt. No. 657) as Google's "Motion," and the Joint Stipulation filed by P10 on December 1^, 2009 (Dkt. No. 690) as P10's "Opposition" ("Opp."). 23 3 P 10 submits contradictory declarations from Dr. Zada and Ms. Augustine 24 which only raise further questions regarding what was lost, why and when. First, Dr. Zada declares that "all of the information on [Ms. Augustine's] hard drive was 25 lost." Zada Decl. ¶ 2. By .contrast, Ms. Augustine declares that a computer 26 technician "was able to retrieve emails dated September 17, 2008 and after" from 27 that same computer. Augustine Decl. ^ 5. P10 should be ordered to submit the comprehensive declaration Google has asked far in its moving papers. 28
01980 .5132Q132G8837,1

__^ GOOGLE'S REPLY IN SUPPORT OF ITS MOTION FOR A DOCUMENT PRESERVATION ORDER

1

"backup system," see Opp. at 2-3), but provides no further information. This is yet

2 another reason why Google's motion should be granted. 3 4 5 C. Other Key P10 Witnesses Lost Or Destroyed Documents During This Litigation As Well. In addition to Ms. Augustine, Google has recently learned that various P10

6 independent contractors also have lost or destroyed documents during this litigation. 7 As the Court will recall, P10 is asserting publicity violations on behalf of nine 8 individuals (the "Nine Models"). Google has begun its depositions of the Nine

9 Models and has learned that key documents relevant to those publicity claims,
10 including contracts and assignments of rights, have been lost or shredded during 11 recent years. See Reply Declaration of Rachel Herrick Kassabian ("Kassabian

12 Reply Decl."), filed concurrently, at Exh. A (10116109 Schoenweitz Deposition 13 Transcript at 54:23-25 14 15 16 ); id. at 55:9-14

17

;^ see also

18 Kassabian Reply Decl., Exh. D (11111/09 Weber Deposition Transcript at 68:3-14)

19

; id Exh. E (11/19/09 Srnith Deposition Transcript at

20 19:17-20:15 and 25:24--26:2) ^.
21 22 23 24 25 26 27 2$
OI980 .5132^13268837.1 -4-

Google initiated meet--and-confer efforts regarding Ms. Schoenweitz's destruction of documents by letter dated October 27, 2009. Kassabian Reply Decl. ¶ 3 and Exh. B. P10 refused to provide a substantive response to GoogIe's Ietter for nearly two months, until December 22, 2009, after Google filed the instant motion. Id. ^ 3 and Exh. C. In that December 22 letter, Mr. Mausner's office (which is representing both P14 and Ms. Schoenweitz did not dis ute Ms. Schoenweitz's testimony that Id. at ¶ 3 & Exh. C.

a

GOOGLE'S REPLY IN SUPPORT OF ITS MOTION FOR A ^I)^OCUMENT PRESERVATION ORDER

1

P10 knew that documents related to these models' publicity rights would be

2 ^^ relevant to its litigation purportedly asserting those rights, yet apparently failed to 3 take steps necessary to preserve such documents. A document preservation order 4 ^ against P10 should issue for this reason as well. See, e .^., In re NTL, lnc. Securities, S ^ Litii?ation, 244 F.R.D. 179, 194 (S.D.N.Y. 2007) (preservation obligation extends to 6 the `key players ' in the case,") {citing Zubulake v. UBS Warburg LLC^,, 220 F.R.D. 7 212, 218 (S.D.N.Y 2003)); Silvestri v . General Motors Carp ., 271 F.3d 583, 591 8 {4th Cir. 2001) ("lf a party cannot fulfill this duty to preserve because he does not

9 own or control the evidence, he still has an obligation to give the opposing party
10 notice of access to the evidence ar of the possible destruction of the evidence if the 11 party anticipates litigation involving that evidence,"). See also Turner v. Hudson

12 Transit__Lines, lnc^ 142 F.R.D. 68, 73-74 (S.D.N.Y. 1991) {"a party's discovery 13 obligations are not satisfied by relying on non-parties to preserve documents"). 14 15 16 D. P10' s Failure To Preserve Documents Also Extends To Its Own Financial Records. And further, even though P10 was specifically ordered to produce its periodic

17 financial statements by the Court's Order dated October 6, 2009 (Dkt. Na. 560}, P10

18 has failed to produce financial statements for many months ( including months 19 during the pendency of this litigation), and has now acknowledged that some of

2a'
21 22 23 24 25

those documents "do not exist." Specifically, P10 has failed to produce monthly financial statements for the following months: 1997 January, February, March, April, May, June, July, September and October 1998 November

1999
2000

April, May, June, July, August, September, October and November
January, February, April, May, June, July, August, September, October, and November

2s
27

28
41984 . 51324l3Z68837.1 -5GOOGLE'S REPLY IN SUPPORT OF ITS MOTION FOR A DOCUMENT PRESERVATION ORDER

1

2001

January, February, March, April and May February, June, July, August and October June and August

2 2002 3 2003 4 2004 5 2005 6 2006 7 2007 2008 9 2009 10 11

March and April
February January and February February, May, June, August, October and November January, February, April, July, October, and November January, February, April, June, July, August, September, October, November, and December

12 See Kassabian Reply Decl., Exh. F (excerpts of Joint Stipulation on Google's 13 Motion to Compel (Dkt. No. 408) at 25-26}. During recent meet and confer, P 10 14 vaguely asserted that the missing documents "do not exist," and confirmed that the 15 missing statements from 2007 were never created. Id. ¶ 6 & Ex. G. But P10 has 16 steadfastly refused to conf rm specif cally which of the remaining dozens of missing 17 statements (1}were never generated in the first place, or (2) were generated, but lost 18 or destroyed during this Iitigatian. ld. P 10 also recently informed Google that the 19 original copies of two of its monthly statements (for December 2001 and June 2004} 20 which were produced but only with redactions, no longer exist either. ld. Google 21 asked P10 to advise if these complete and unredacted statements were not lost or 22 destroyed during this litigation, and P 10 did not respond. zd. 23 The record is replete with instances in which relevant P10 documents have

24 been lost or destroyed during the pendency of this action. A document preservation 25 ^ order is necessary. 26 27 28
03980 .5132013266837.1
-^7-

GOOGLE'S REPLY IN SUPPORT OF ITS MOTION FOR A DOCUMENT PRESERVATION ORDER

1 II. 2 3

P1.0 DOES NOT CONTEST THAT ^T FABLED TO TAKE STEPS NECESSARY TO PRESERVE RELEVANT DOCUMENTS. Not only does P10 concede the actual loss and destruction of documents, but

4 ^ its Opposition also does not contest that it failed to take any steps necessary to 5' ^ preserve documents, such as by giving document preservation instructions. See

6 Motion at S-8. Indeed, Ms. Augustine-the primary custodian of P10's copyright 7 records-testified that 4 {quoting Augustine Deposition Transcript). See Motion at All three of the Nine Models who

9 have been deposed to date testified similarly 10 11 12 13 See^e.^., Kassabian Reply Decl., Exh. A (Schoenweitz Deposition Transcript at 75 :11-18
5

Thus far, the only evidence of any preservation instruction of any kind from

14 P10 to anyone is from P10 part-time employee Sheena Chou, who testifed that 15 16 Motion at S-8.

17 This is insuff cient. All litigants-including P10-have an obligation to preserve 18 relevant documents. Since P10 has not honored this obligation voluntarily, the

19 Court should order P I0 to do so now. 20 21 22 23 24 25 }; id Exh. E (Smith Deposition Transcript at 79: 8-I 1 ("Q. Did anyone tell you that you needed to preserve documents that related to the Perfect 10 27 versus Google litigation ? A. No."}}. 28
41980 .5132413268837.! -7^ GOOGLE'S REPLY IN SUPPORT OF ITS MOTION FOR A DOCUMENT PRESERVATION ORDER

Ms. Weber and Ms. Smith

eber

26

1 2

I)1J1.

NONE OF Pl0'S COUNTERARGUMENTS HAVE MER)(T. Instead of addressing its failure to preserve documents directly, P10 raises a

3 series of unsupported claims and other distractions. First, P 10 audaciously asserts 4 that Google did not meet and confer prior to filing this motion. Opp. at 22-23.

S Nothing could be further from the truth. Google sent repeated letters and emails to 6 P10 dating back to August 25, 2009, asking P10 to confirm that it would take steps 7 ^ necessary to S 9 Decl., Exh. A. ensure that no further document destruction occurred. Kassabian Google also asked P10 to disclose the scope and extent of P10's Pl0 completely ignored Google 's letters for more than

10 document destruction .

11 three months. See Kassabian Decl. ¶ 10. It was only after Google filed this motion 12 that P10 provided at least some of this information, and even then only via its 13 opposition papers. See Zada Decl. ¶ 2 (partially explaining loss of Augustine

14 emails ); Augustine Decl. ¶ 5 (stating that after her August 2009 deposition, 15 Ms. Augustine instructed a technician to modify the settings on her computer to 15 prevent further email deletion). P10 should be sanctioned for its obstinate and

17 groundless refusal to participate in the meet and confer process, which obstinance 18 left Google with no choice but to file this motion. 19 Second, P10 insists that the documents that have been lost or destroyed are

20 ^ "irrelevant." Opp. at 2. P10 has no basis to claim that the emails Ms. Augustine 21 ^ lost are irrelevant, because P10 does not know which emails have been lost. Indeed, 22 when documents are lost, inferences regarding relevance are drawn against the party 23 who lost them, not in its favor. See Leon_v_. IPX Sys.__C_ orp,, 464 F.3d 951, 959 (9th 24 Cir. 2006) ("because the relevance of destroyed documents cannot be clearly 25 ascertained because the documents no longer exist, a party can hardly assert any

26 presumption of irrelevance as to the destroyed documents"); Hamilton v. Si nature 27 Flight Support Corp., 2005 WL 3481423, at *b (N.D. Cal. Dec. 20, 2005) ("For 28 purposes of relevance ... courts must take care not to `hold[ ]the prejudiced party to
01980 . 5132U13268837.1

^GOOGLE'S REPLY IN SUPPORT OF ITS MOTION FOR A DOCUMENT PRESERVATION ORDER

too strict a standard of proof regarding the likely contents of the destroyed [or 2 unavailable] evidence,' because doing so `would subvert the ... purposes of the 3 adverse inference, and would allow parties who have ... destroyed evidence to prof t 4 from that destruction."') (citation omitted); E*Trade Securities v. Deutsche Bank S AG, 230 F.R.D. 582, 589-90 (D. Minn. 2005) (selected preservation of documents 6 gives rise to inference that relevant information was Iost}. Similarly, documents 7 related to the nine models' past assignments of their publicity rights to companies 8 other than P10 are indeed relevant to P10's publicity claims-since P10 contends 9 that its assignments are exclusive. See Second Amended Complaint ¶ lb. P10's 10 relevance argument fails. 11 Third, P 10 defends its paltry email production by claiming that it withheld

12 ^ certain emails on privilege and/or work-product grounds-far example, emails 13 between Wendy Augustine { a non-lawyer) and Sheena Chou {another non-lawyer). 14 Opp. at 3-4. As a preliminary matter, such emails presumptively would not be

15 privileged, and P10's opposition brief does not even attempt to justify or 16 substantiate that withholding.6 In any event, the fact that certain unidentified emails 17 may have been withheld (on apparently improper grounds) does not change the fact 18 that other emails have been destroyed. 19 Fourth, P10 argues that "Google has never served a single request ...

20 specifically requesting emails." Opp. at 3, n.2. This is false. As Google pointed out 21 in its moving papers, Google has served dozens of document requests seeking

22 "communications," which term was defined to include emails (ta the extent that 23 P10 appears to be taking the position that all of its internal emails are privileged because P10 currently is engaged in litigation. That is not the law. See, 25 e.g_, United States v. ChevronTexaco Carp., 241 F.Supp.2d 1065, 1069 (N.D. Cal. 26 2002) {"The privilege protects communications between an attorney and her client 27 made in confidence for the purpose of securing legal advice from the lawyer.") (citing United States v. Chen, 99 F.3d 1495, 1501 (9th Cir. 1996}). 28
^ 1984.51320!3268837.1

24

6

CsOOGLE'S REPLY IN SUPPORT OF ITS MOTION FOR A DOCUMENT PRESERVATION ORDER

1j point was not already obvious). See Kassabian Decl. ¶ 1 S {listing examples of such 2 document requests). 3 And fifth, P10 argues that Google has not produced certain documents. Opp. In addition to being untrue (see Google's Opposition to P10's

4 at 24-37.

S Preservation Motion, Dkt. No. 647), what Google has or has not produced is 6 irrelevant to whether P10 has last or destroyed documents.' P10's attempt to draw 7 the Court's attention away from P 10's failings by levying false accusations at 8 Google should be rejected summarily.8 9 At bottom, what P10 does not do in its Opposition is answer the following

10 ^ questions Google posed months ago during the meet-and-confer process, and again I1 12 13 14 15 16 17 18 ]. 9 ^ All of the discovery issues P10 recounts in opposition to the instant Motion (see Opp. at 26-37) have already been filly briefed in P 10's Sanctions Motion and Gaogle's Opposition thereto. See Docket Nos. 633 and 647. Rather than burden the Court by repeating those arguments here, Google respectfully refers the Court to its Opposition at 5-11 {Docket No. 647), and incorporates those arguments by reference as though fully set forth herein. s In seeking what it describes as a mutual preservation order, P 10 erroneously suggests that two cases cited in Google's Motion support the nation that a court can enter a preservation order against a parry without cause. The cases stand for no such thing. The court in Realnetworks Inc. v. DVD Co Control Assn Inc. instructed the parties to cooperate in drafting a document preservation order that would apply only to one parry, the plaintiff, after finding that "Real did not have a preservation !policy in place." 2009 WL 1258970, at * I O (N.D. Cal. May 5, 2009). Similarly, the court in Pueblo of La una only ordered one party -the United States - to preserve documents after finding that failures in its document retention procedures were "pervasive and systematic." 60 Fed. C1. at 139. Since P10 has demonstrated no cause whatsoever, and has not pointed to even a single instance of loss or destruction of documents by Google, a mutual preservation order is unnecessary. in Google's moving papers: · How the settings on established, by whom, and when; P10 email account were

2a
21 22 23 24 25 26 27 28
O1960 .5l320132fi8837,1

GOOGLE's REPLY IN SUPPORT OF IT5 MOTION FOR A DOCUMENT PRESERVATION ORDER

· Whether emails on 2 3 4 S 6 7 S 9 10 11 12 13 · deleted, and if so, how many and when;

PIO email account have been

· The location of any "backup" files for the deleted ^ emails, including , on P 10 computers or

servers, or at an off-site location maintained by any P10 service provider ar vendor; · Whether P 10 gave any document preservation instruction to any P 1.0 employees, contractors, ar other personnel regarding this lawsuit, and if so, when; and Whether the email accounts of any P1O employees, contractors, or other personnel ^ have ever been set to automatically delete emails {and if so, who, when and after how long). P10 should be ordered to answer these questions now, and to immediately

14 take all steps necessary to preserve all relevant documents. 15 16 17 1$
Conclusion P1O has confirmed that it has destroyed documents, and has failed to

implement even the most basic litigation hold or otherwise take steps to ensure that

14 relevant documents were not lost ar destroyed. For all the reasons identif ed in 20 Goagle's moving papers, the Court should issue an order (1) requiring P 10 to 21 'identify the scope, duration and extent of its email deletion activities, and any other

2z
23

document loss or destruction that has occurred, and {2) instructing P1O to immediately take all steps necessary to preserve all documents relevant to this

24 Iitigation, including modifying its computer settings far all employees and officers 25 to remove any auto-deletion instructions.

26
27 28
01980 .5132013268837.1

111 111 111
-11GOOGLE'S REPLY IN SUPPORT OF ITS MOTION FOR A^^DOCUMENT PRESERVATION ORDER

1 2 3 4 5 6 7 8 9 10 lI 12 13 14 15 lb 17 18 19 20 21 22 23 24 25 26 27 28
Oi980 . 5132413268837,E

DATED : January 6 , 2009

QUINN EMANUEL URQUHART OLIVER & EDGES. LLP

By

^^^^1`-,,^ i^.^t,^.^^, ^CL^^^.>L.._.. Rachel Herrick Kassabian Attarnevs for Defendant GOOGLE INC.

_

_ - l 2-

GOOGLE'S REPLY IN SUPPORT OF ITS MOTION FORA DOCUMENT PRESERVATION ORDER