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 Att. 1

1 2 3 4 5 6 7 8

QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP Michael T . Zeller ( Bar No . 196417) michaelzeller @ qulnnemanuel.com 865 South Figueroa Street, 10th Floor Los Angeles , California 90017-2543 Telephone : [phone] Facsjmile : 213) 443-3100 Charles K. erhoeven (Bar No . 170151) charlesverhoeven @ quinnemanuel.com 50 California Street, 22nd Floor San Francisco ; California 94111 Rachel Herrick Kassabian ( Bar No. 191060} rachelkassabian ^a, quinnemanuel.com 555 Twin Doiphin`brive, Suite 560 Redwood Shores , California 94065

9 ^ Attorneys for 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 05753 AHM (SHx)] DISCOVERY MATTER Hon. Stephen J. Hillman REPLY DECLARATION OF RACHEL HERRICK KASSABIAN IN SUPPORT OF GOGGLE INC.'S MOTION FOR A DOCUMENT PRESERVATION ORDER TO PREVENT FURTHER SPOLIATION OF EVIDENCE BY PERFECT 10, INC. Date: January 15, 2010 Time: 10: 00 a.m. Ctrm: 550 Discovery Cut-off: None Set Pretrial Conference Date : None Set Trial Date : None Set PUBLIC REDACTED

i3 PERFECT 10, INC., a California corporation, 14 Plaint 1S vs. 16 GOGGLE INC. a corporation; and 17 DOES 1 through 100 , inclusive, 18 Defendants. 19 20 21 PERFECT 10, INC., a California corporation, Plaintiff, vs. AND COUNTERCLAIM

22
23

24 AMAZON.COM, INC., a corporation; A9.COM, INC., a corporation; and 25 DOES 1 through 100, inclusive,

26 Defendants. 27
28
01980 .5132013267710.1 I

REPLY DECLARATION OF RACHEL HERRICK KASSABIAN

Dockets.Justia.com

1 2

T, Rachel Herrick Kassabian, declare as follows: 1. I am a member of the bar of the State of California and a partner with

3 Quinn Emanuel Urquhart Oliver & Hedges, LLP, counsel for Defendant Google Tnc. 4 ("Google ") in this action. I make this declaration of my personal and firsthand 5 knowledge and, if called and sworn as a witness, could and would testify competently 6 thereto. 7 2. Attached hereto as Exhibit A is a true and correct copy of excerpts of the

8 transcript of the deposition of Nadine Schoenweitz , taken on October 16, 2009. 9 3. On October 27, 2009 , shortly after Ms. Schoenweitz's deposition,

10 counsel for Google initiated meet and confer with Jeff Mausner (who is representing 11 12 both Perfect 14 and Ms. Schoenweitz) regarding A true and correct

13 copy of Google's October 27, 20091etter is attached hereto as Exhibit B. Mr.

14 Mausner did not provide a substantive response to Google's meet and confer efforts
1 S until nearly two months later, by letter dated December 22, 2009 {a true and correct

16 copy of which is attached hereto as Exhibit C), after Google already had f led the
17 present motion. 18 4. Attached hereto as Exhibit D is a true and correct copy of excerpts of the

19 transcript of the deposition of Amy Weber , taken on November 11, 2009. 20 21 22 5. Attached hereto as Exhibit E is a true and correct copy of excerpts of the

transcript of the deposition of .Amber Smith , taken on November 19, 2009. 6. On October 6, 2009 , this Court ordered Perfect 10 to produce certain

23 financial documents , including Perfect 14 ' s missing monthly financial reports (to the

24 extent such documents exist). True and correct copies of excerpts of the Court's
25 October 6 Order ( Docket No . 560) (ordering the production) and the corresponding 26 Joint Stipulation (Docket No. 408) {identifying the several dozen specific missing 27 monthly reports} are attached hereto as Exhibit F . However , Perfect 10 did not 28 produce any of those missing financial reports in response to the Court's Order.
01980 . 5132013267710.1

REALY DECLARATION OF RACHEL HERRICK KASSABIAN

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1

Google met and conferred with Perfect 10 regarding these still -missing fnancial reports on various dates beginning on November 4, 2009. True and correct copies of that meet and confer correspondence are attached hereto as Exhibit G. As of the date of this declaration , Perfect 10 has confirmed that none of these missing reports currently exist, and that the missing reports from 2007 were never generated in the frst place . However , Perfect 10 has not confirmed whether the remaining missing monthly financial reports (including for the years 2004 , 2005 , 2046, 2008 and 2009) existed at one time and were destroyed , or were never generated in the first place.

9

7.

At page 3 of Perfect 1O's opposition brief ( Docket No. b90, f led under

lOl seal), Perfect 10 claims that after it had given Google notice that it had inadvertently
11 produced two allegedly privileged emails , Google ignored that notice and filed those

12 emails as an exhibit to Google's motion anyway ( citing Exhibit N to my previous 13 declaration , .Docket No . 6$6, f led under seal). This is incorrect . After receiving 14 Perfect 1O's December 9, 2009 email regarding this allegedly inadvertent production 15 (a true and correct copy of which is attached hereto as Exhibit H}, Google removed 16 the allegedly privileged content described in Perfect 1O's December 9 email from that 17 exhibit by ( 1) removing the first email Perfect 10 claimed was completely privileged 18 and (2) redacting the allegedly privileged portion of the second email . This can be 19 seen by simply looking at Exhibit N to my previous declaration , which has a large 20 redacted portion 21 Google did not use or f Ie any of the allegedly privileged material

22 Perfect 10 described in its December 9 email. 23 I declare under penalty of perjury under the laws of the United States of

24 America that the foregoing is true and correct . Executed January 6 , 2010 at San 25 Francisco , California. 26 27 28
D l 480 ,5 ] 320132677E 0.1

Rachel Herrick Kassabian
_ -2REPLY DECLARATION OF RACHEL HERRICIC KASSABIAN ^^

E XHIBIT A

EXHIBIT A: Fil e d U nd er Seal P urs u a n t t o Protective Order

EX HIBI T B

EXHIBIT B : Fil e d U nd er Sea l P urs u ant to Protective Order

EXHIBIT C

EXHIBIT C: Fil e d Un d er Seal Pu rs u a n t to Protective Order

EXHIBIT D

EXHIBIT D : Fil e d U nd er Seal Pu rs u a n t to Protective Order

EXHIBIT E

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Perfect 10 -- the ^oogle^Xitigation, correct? A. IEm gaining speed in the last month or two.

x didn't even know it was in existence. X. mean, I didn't know it had happened. Q. ba you leave an understanding as to whether

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conc^.usion. ambiguous. itself .

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I, Kathleen ^, Ba^cney, a Certified Shorthand k^epaxtex, do hereby certify:
That prior to being eXamined, the witness in the faxega^.ng proceedings was by me duty sworn. to testi^'y to the truth, the._whol.e truth, and nothing but the truth; That said proceedings were taken before ate at the t.i^ne and place therein set fprth and were ta3cen down by ane a.m shorthand and thereafter transcribed into typewriting under my direction and supe rva. s ian Z further certify that T a.^t neither counsel tor, nor related to, any party to said proceedings, nar in anywise ^.nterested in the outcome thereof. Tri witness ra'her-eaf, T have hereunto subscxa.bed my name .

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UNITED STATES DISTRICT CQURT FOR THE CENTRAL DISTRICT OP' CALIFORNIA WESTERN' DIVISION PERFECT 1 Q, INC., a California
COrpOratiOn,

Case No. CV05-4753 AHM SI'!x CV04 9484^AHM (SHx) C SS O

Plaintiflf, v. AMAZON.COM, IN' C., a corporation; A4.COM INC. a corporation; ALEXA. ^NTEI^NET INC., a

^3 14 IS 16 I7 I8 19 20 21 22 23 24

co oratiazl, and DOSS 2 tk^rou^ l 0, ilac^usive, Defendants. PERFECT I0, INC., Plaintifif,
v. GOOGL.E, INC., a corporation, and DOES 7-100, inclusive

TO^COMPEL PERFECT Itj TO PROD^TCE COMPLETE AND UNRED.ACTED FINA1^iCIAL DOC^CTMENTS AND O 'I'REIt DAMAGES-RELATED DOCUMENTS ANrD AMA^OlY.COIVJ AND ALEXA I'NTERNET'S .IOINDE^. THEREIN
^I©n. Stephen J. Hillman Date: S tember 22, 2009 Time: 1^0^ A.M.

] ORDER GRANTING PART GOOGLE INC,'S MO'T'ION

Cour#^oorn: SSO

Discovery Cutoff: Nane Set Pretrial Conference hate: None Set Trial Date; None Set

Defendants.

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[PItOPOSED^ ORDER CASE NO. CVOS-4753 AHM (SHx) CbN50LIDATED WI'T'H CV049484 AHM (SHx) ^

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ORDER

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On September 22, 2009, the Court heard argument on various discovery matters raised in Defendant Gaagle Inc.'s I1^otion to Compel Perfect IO (I) To Produce Dacumen:ts, (2) To Comply With The Protective Order, and (3} Ta Affix Document Control Numbers To Its Document Praducti^n, including disputes relating
to financial documents and certain related issues arising from the planned deposition of Perfect 10's accountant Bruce Hersh.t Defendants Arnazon.com and Alexa.com filed an application to join in portions of that motion and to raise these related issues, and which the Court hereby GRANTS. Having considered the parties' respective briefs and oral argument, and good cause existing therefore, the Court HEREBY ORDERS that Google's Motion and the Amazon Defendants' joinder therein is GRANTED IN PART AND DENIED IN PART, as follows: 1. Perfect 10 is oxdered to produce copies of all of its periodic and annual

financial statements and tax returns to the extent such documents exist, including those in the possession of its outside accountant Bruce Hersh, in complete and unredacted form, with the fallo^vving two exceptions:

a.

With respect to medical expense, the names of patients and 'PiTith respect to credit card expenses, Perfect 10's credit card

treating physicians may be redacted; b. numbers may be redacted. Perfect 10 must produce such documents in^ mplete and unzedacted farm (with the two exceptions noted above) by October ^', 2009, ` Google only asked the Cnuzt to rule on Issues I, VII, VIII, and IX at the September 22, 2009 hearia^g, sa the Court did not reach Issues II -'VI presented in the parties' Joint Stipulation On Google Inc,'s Motion to Compel Perfect IO (1) To Produce Documents , (2} To Comply With The Protective Order, and (3) To Affx Document Control Numbers To Its Dncurnent Production This Order roles an Issue I in the aforementioned Joint Stipulation (and floe related ' ues implicated by the upcoming deposition of Mr. Hersh).

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not already been produced, and to the extent that they exist and can be located with a reasonable search,l7y October 2^, 20Q9. The foregoing is made without prejudice to any defendant seeking additional documents responsive to the document requests considered at the hearing oz requested in deposition subpoenas served upon accountant Bruce Hersh. iT TS SO ORDERED. Date: / d - 6 · C1
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United States Ivla^istrate Fudge

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X f^AG^SEL LISTING ON FOLLO'V^'ING 2 3 4 S 7 S s UNITED STATES DISTRICT COUI2.T CENTRAL DISTRICT OP CATfTFOI^.NIA CASE CIO. CV 04-9484 AI^^SfT^) r Consolidated with Case No. C OS( ^E753 AfTIvT (SHx)] DIESCQ^RY MA'X~TER J4I1^IT STl[PULATXUN E)1V GQOGLL^' YNC.{S 1VIOTZUN TO CQMPEL PERFECT 1Q 1 TU PRODUCE DOCUII^ENTS^ ^{2 TD ( O^E^ I7^ DUC U NT ^ C1N'^ U^ R PRODUCTYUN
COlY^PL'Y VVYTH PRpTEC^TI^E NUMBERS TO YTS DOCUIVIENT

10 PERFECT Y0, INC., a California corporation , X1
Plaintiff,

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vs.

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GOOGLE INC. a corporation ; and lq- DOES 1 tl^roug^ 100, inclusive,

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vs.

Defendants. AND COUNTERCLAIIVI 10, II^IC., a Califprnia

Plaintiff,

floe . Stephen J. ];Tillman

2I AMAZQN.CC7M, INC., a cazpora#ion; 22 DOES 1 through IQO, mclusi^ve, 23 ^4 2S 25 2? 2$ Iefendants.
A9.COIVI, INC. a corporation,; and

' "Time: 2:40 P^ Crtrm,: S50

Date:

June 1 2009

Discovery Cutoff None Set Pretrial Conference Date; Nave Set Trial Date : Nave Set PU^IfJYC REDACTED

Case No_ CV 04-9'3$4 AHM (SHx} [Consolidated with Casa rlo. CV ..05753 AHM {Slix}] _,._,._.. 3Q13VT 3'rlPULATIDN ON GOOGLIr'S M4TlQ1V'r0 pptvlPFG ^

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Document 408

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1 reports Perfect 10 has produced to Goode are certain monthly financial statements, 2 Perfect 10 has refused to produce -- or explain its reasons far not producing -- aver 3 four years' worth of tI·iese mo>«thly financial reports. Second, many of the reports 4 (and tax returns) that Perfect 10 has produced are substantially redacted based on 5 improper claims of irrelevance and confidentiality -- claims that axe directly 6 contradicted by its clai><·n for monetary damages arad tlae ternrts of the Protective 7 Order in this case. Thixd, the financial statements that Perfect 10 has produced are 8 suxnrnaries of Perfect i0's financial condition, necessarily based on other financial 9 doculx ^ ents that Google must have to assess Pez`fect 10's claimed damages. Perfect I4 XO has no basis for withholding #hese source documents. Per#'eat 10 should be 11 compelled to produce corriplete and urlredacted copies of its tax returns, monthly 12 financial statements and other supporting documents related to the information I3 summarized in those monthly financial statements. 14 15 16 2. Perfect 10 Has Failed To Froduce Financial Re orts Cayerin^ Many Months Perfect IO's production of financial documents consists of select monthly However, there are at least S I such

I7 filancial statements da#ing back to 1997,

18 monthly financial statements that are still missing from Perfect 10's production. See

I9 ICassabian Dec!. ^ 51, and at Exs. HH & II. Specifically, Perfect 14 has produced no 20 monthly financial statements for the following months: 21 1997
22 23

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

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24 X999 25 2000 26 27 2001

January, February, March, April and 1VIay
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February; June, July, August and October
June and August

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February January and February

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2005

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Februar}^,1VIay, June, August, October and November
January, February, March, April, May, June, July, September, October

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During the meet and confer process, Perfect X 0 refused tv confirm whether it

11 has these missing financial statements in its possession, and if not, what happened to 12 them. These are obviously critical issues. Far example, if Perfect 10 destroyed the
13 financial records just prior to or during this litigation, then GoogIe is entitled to 14 pursue spoliation sanctions against Perfect l0, and to ask the Court to strike Perf^t 15 10's clairr^s of infringement andlor far damages (to the extent perfect l0 has nvt X6 waived there already}. Perfect 1Q should be ozdered to produce these doct^rnents 17 without further delay, or to submit a sworn affidavit explaining what happened to 18 these documents, and why it was not able to locate and produce these doc^tinents 19 :that clearly existed at one point in tirr^e. See Buchanan, 2fl^ F.R,D. 123, 125 (D. 2Q Md, 2002}; Rockwell Int'I Cow. v. H. V^ol^e_Iron & Metal Cc^, 576 F.Supp. 511, 21 S 12 ('UV.17. Pa. 1980; p'ed. R. Ciy. P. 34(a). 22 Perfect 18's P^roducfivn Contains Tm r© er Redackivns 3. 23 i Many of the. financial statements and ta^c returns that Perfect 10 did produce 24 are heavily redacted, rendering them useless in assessing Perfect 10's financial 25 'condition, P'or instance, Perfect i0 has redacted categories of reformation highly 26 ^relevar^t to Perfect 10's claims of damages, 27 2S
.^6_ Caso No. CV 04^94B4 AHM (SHa} [Car^solidated wish Case Too. CV OS-4753'ARM (S^Ix)1

^AGE ^ -

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Case 2:0^

·08484-AHM-SH

Document 408-2

,.'~^ E"^led 0510712009

Page 58 of 58

1 PP;1tFECT IO'S CONCI.I}SION 2 For the reasons set forth above , Govglt:'s motion should be denied in its

3 entirety . Google should be ordered to reimburse Perfect 10 for the fees it has bter^ 4 forced to io.cuz iu opposing an unnecessary motion. 5 d DATED: May 6, 209 7

QU'1T^N EMANUEL URQUHART QI.IVER & HHEDGES. LLP By

9 10 11 DATED; May f>, 2009 Z^ 13 ^^ 15 16 1'7 18

Rachel HenriclC ICassabian Attorneys for f?efex^dax^t Goo^ie Inc. THE LAW OFFICES OF JEFFREY N. MAUSNER

By Is/, reffrey N. Mausner (with permission}
Jeffrey N.1Wlausner Valene E, Kincaid

Attorneys for Plaintiff Perfect 10. Inc.

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25

26 27
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_ ,Y Case IVo. CV 04 - 9484 A^1M (5Hx) [Cor+solidated ^ 11with Case ^fo. Cy E}5.4753 AHM (5Hx}] -_ _ d0lTVT 5'FIPLlLA774N aTV GoOGLE'S MQT101+7 TO COMPEI,^

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EXHIBIT G

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Thomas Nofart
From : Sent : To: Cc: Subject : Rachel Herrick Kassabian Tuesday, January 05, 2C^90 9:24 I'M Jeffrey Mausner 'Jansen, Mark T. '; trcahn@townsend. com; [e-mail]; 'Steiner, i;lham F.'; 'Valerie Kincaid; Thomas Nolan; Michael Teller; Brad R, Love RF: Perfect 70, Ine. v. Google Inc.: Production of Financial Documents

Jeff,
You still have not answered our questions. 1 will restate them below for ease of reference -^. With regard to the December 31, 2001 and june 30, 2004 financial statements, are you saying that the original unredacted versions have been lost or destroyed? That's what it sounds like you are saying -^ please confirm if this is NOT Che case. 2. For each of the following missing monthly' fi^.ancial statements {other than the 2007 statements, please identify which specific statements (1} were lost or destroyed (and hawJwhen), and which (2) were never created in the first place: 1997
1998

January, February, March, April, May, .lone, July, September and October
November

1999 2000

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

2.001 2002 2003 2004 2005 2006 ZD07

January, February, March, April and May February, June, July, August and October June and August March and April February January and February February, Mcy, June, ^4ugust, October and November ^^,^`^^^ t ^^:k^ =^^ yes i^^^^l^:^.atn^^ ^ .^^^^' e^;

2008

January, February, April, July, October, and November

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2009

January, February; April, June, July, and August

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These questions Dave been outstanding tar six weeks . Your prompt response by the close of business today would be appreciated, Rachel Herrick Kassablan ^ Part»er Quinn ^rnanue ! Urquhart i3liver ^ Hedges LLP 555 Twin [Dolphin Drive, Suite 560 Redwood Shores; CA 94065 650,807.5Q45 Direct 650.801.51)00 Main 650.8D^.5^00 Fax rachelkassabian^guinnernanuei.corn www. quinnemanuel.com

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NOT1CEn: The infarmalion coniaineCi In this s-matt message is intended only for ttie personal and conFdentia3 use of lyre recipient( s) named above . This massage may bB an attarneyClient romniunication ancl1ar vrurk productand as such is privieged and ront3dentiar . Tf the re=ader of thts message is not the i ntended recipient or anent responsible for delivering t to the intended recipient , you arc hereby notified U-rat you have received this document in error and ii^at any revievr, dissemination, distribution , or copying of this message is stri4f[y prohibited. Ir you have received this rommunita6on in error, please notify us immettialey

by a-mail, and delete the origlnai message.

I~rarn ; 3efi=rey Mausner [mailto:[e-mail]) Sent : Tuesday, January 05, 2010 11:28 AM Tu: Racttef Herrick Kassabian Cc. 'Jansen, Mark T. '; [e-mail]; [e-mail]; 'Steiner, Fwlham F.'; `Valerie Kincaid'; Thomas Nolan; Michael T Zeller; acid R. Love Sultject : RE: perfect 10, Inc. v. Google Inc.: production at Financial Documents

R.acheI: On November 23, 2449, Perfect 14 responded to Google'= informal discovery requests . That response included answers to what you asked in your November 25, 2449 request for additional informal discovery . However , in an ongoing e££ort to respond to Cxovgle ' s inquiries, we will repeat what we said already, and see if there is anything more we can do, With regard to the December 31, 2441 and June 30, 200 financial statements, Perfect 14 could riot locate unredaeted copies. Of couxse, we checked with Mr. Hersh's office. Please identify any redacted information that Google believes is relevant and not discernible from other sources. As you know, Perfect 10 provided Google with unredacted statements before and after those dates. Google has aceountantslexperts who know if there is'any redacted information that is not in those previous and subsequent statements. Ys there something Google believes is missing? With regard to the 2007 monthly statements that ware not produced, those documents were not generated, A f nancial statement is not generated by Perfect 10's accountant every month. Once again, Perfect 14 produced statements for the previous and subsequent months. Have Google'= accountants/experts identified something specific they believe is missing?

Perfect 10 produced its existing tlnancial statements, therefore, there is nothing more for it to do.

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Also, hove does any of this relate to the pending motions for document preservation orders? Graogle has not raised any such issue . Jeff.

Frain: Rachel Herrick Kassabian [ Iriaflto:rachelkassablan @ qulnnemanuel.cam] Sent : Monday, ,January 44, 2014 2;32 PM Ta: 'Jeffrey Mausner' Gc: 'Jansen, Mark T. `; '[e-mail]'; '[e-mail]'; 'Steiner, Elham F.'; 'Valerie Kincaid'; Thomas Nolan; M[chael T Zeller; Brad R. Love Subject : RE: Perfect 14, Tnc. v. Gaogle Inc.: Production of Financial i3acuments Jeff,
It has Been nearly six weeks since we sent you the November 25`"email below. I'10 still has not responded, Given the pendency of Google's document preservation motion and the upcoming hearing on same , it is imperative that P10 respond now. Please do so by noon tomorrow, January 5.

Rachel Herrick Kassabian ^ Aartner
Quinn Emanuel Urquhart Oliver & Hedges LLP 555 Twin Dolphin Drive, Suite 580 Redwood Shares, CA 94055 654.801.5045 Direct 654.801.5000 Main 650.$01.6104 Fax rachelkassabianCcOquinnemanue],^ooE7i

www. q uin neman uel,com.
NOTICE: 'Ihe information contained in th+s e-mail n3essage is intended only for the personal and confidentiaE use or the reap+ent(s} named alwve. This message rrtay be an attorney^client communication and(or worl; produck and as such is privileged and confidential. ?r tl^c reader of this massage is not the intended reclplent nr agent responsihle for delEve; ing it Lo the intended reclpie+it, you arc iierehy notified t1^at you have received this document in error and that any review, dissemination, distribution, or cniaying of this nsessage Is strictly prohihii:ed. If you have receivetl this commcmiration in error, please r=vtity us in3mediately by a-mail, and delete the or+ginal message.

From: Thomas Nolan Sent : Friday, December 11, 2009 1:02 PM Ta: 'Jeffrey Mausner' Cc: 'Jansen, Mark T. `; '[e-mail]'; '[e-mail]'; 'Steiner, Elham F.'; Rachel Herrick Kassabian; 'Valerie Kincaid' Subject: RE: Perfect i4, Inc. v. Google Inc.: Production of Financial !?acuments Jeff, Please respond to this email.
Best Regards, Thnrttas Nolan
Assaaare, Quinn Emanuel Urquhart Oliver & hedges LLP. 855 5. Figueroa St 1Utt7 Floor Los Angeles, Ca 90017 213-4q3-3865 t5in:ct 213.M1433000 Main otfiice luumber 213,443.310© FAX thornasnoian t"i`quinnemanuel.com www.qulnnemanuel.com . NOTICE; The information contained in ibis e-mail message is intended only Cnr the personal and confidential use of ifie reclpient(s} named above. This n+essa may be an atSorney-Client Cvnzmunicalion andJcr work product and as such is privileged and confidenl+ai. ]f the readerreFil ;}i^ ^gs^age is not the intruded ' 3pIiI7 F f3 !

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recipient or agent responsible fpr delivering if to\to.,: ^^ritended rerlp[ent, you are hereby notified that you hive eceived this da^umenl' in error and that any review, disserninarion, distribution, ar cppying of this message is sl'rietly prohibited. if you have received this rbnimssnit^^lion m error, please notify us immediately by a-mail, and delete file ariginaf message.

1

l=rx>'rn : Rachel Herrick Kassabian
Sent : Wednesday, November Z5, Z409 17,:15 AM -^ To: 'Jeffrey Mausner'; Thomas Nolan Cc: 'Jarisen, Mark T. `; '^trcahnC^townsend.corn'; '[e-mail]'; 'Steiner, Elham F. ; 'Valerie Kincaid' Siub,^ect ; RE: Pertect 1D, Inc. v. Goggle Inc.: Production of Financial Documents

Jeff,
Thanks for your email. With regard to the i3eeember 31, 20D1 and June 3Q, Z004 financial statements, are you saying that the original unredacted versions have been lost or destroyed? And has P10 checEced with Mr. Hersh's office tv see if he maintained copies?

Please also identify: ^^} which of the missing financial statements were generated, but iost ar destroyed (and what happened to those documents, and
^2) which ofthe rrtissing financial staterents were never cr>?ated in the first place.

Thanks, Rachel
Rachel Flerrlctc Kassahian ^ Partner
Quinn Et^anuel Urquhart Oliver & Hedges LLP 555 Twin Dolphin Drive, Suite 56D Redwood Shores, CA 94065 65D.801.5005 Direct 65D.801.50DD Main 650.801.5'1 DD Fax rachelkassabianr^guinnemanuel.cum
www.QUinnemanuel.com Nt37TCE: -f he inFnrmatipn canlained in this a-mail message Is IntenJed only !nr the ryersanaf and tonfiden6al use of tl3e recipients) named above, l"hls nie;s^7ge may be an attorney-client cAminunicaiion and/or work product and a5 5^d^ is privileged and conridenl^al. if the reader uF this n'= essage is not l^he intended reapient or agent responsible for delivering it to the intended recipient, you are hereby nptified iliac you have received this doniment in error and that any review, disseminadon , distribution, or CApying of tlti5 message is strickfy prohibited, ft you gave received this cominun3ratinn in error, please notify us immediately bye-mail, and delete the original message,

FirOltl : Jeffrey Mausner [mailCo:[e-mail]] Sent : Monday, November 23, 2009 7:37 AM

To: Thorti^as Nolan
Ce: '7ansen, Mark T. ; [e-mail]; [e-mail]; 'Steiner, Elham F.'; Rachei Herrick Kassabian; 'Valerie Kincaid` Sahject: RE: Pertect 1D, Inc. v. Google Inc.: Production of Financial.Dacuments

Rachel : This is in response to your letter dated November 4, 2009 regarding financial statements. Per the Court ' s Qctvber 6 order, Perl"ect 1 fl produced the f nancial statements the

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Court ordered it to produce "to^the extent such documents exist." {See October 6, 2009 Order, paragraph 1.} With regard to the December 31, 2001 and June 30, 2004 financial statements, Perfect 10 only has the copies it produced. 'We have been unable to locate unredacted copies.

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'With regard to financial statements that Perfect 10 did not produce for relatively recent years (for example 2007}, those documents don't exist because they vcrere not generated. Jef£

From: Thomas iValan [rr^ailto:[e-mail]] Selnt : We=dnesday, E^ovemfier 04, 2x09 11:54 AM ^"v: Jeffrey Mausner Cc: `Jansen, Mark T. '; ti'[e-mail]; [e-mail]; Steiner, Efham F.; Rachel Herrick Kassabian; 'Valerie Kincaid' Subyect : Perfect 10, Inc. v. Google Inc.: Production of Financial Documents Jeff, Please see the attached.
Best Regards,
Thomas Nolan Assadake,

Quinn E=manueE iJrquhart Oliver & Fledges LLP.
865 S. Figueroa 5t 7Otit Floor Los Angeles, Ca 90097 213-443-3885 Direct 2'13.443.3000 Main Office number 273.443.3300 FAX thomasnalanCa'7cluinnemanuel.com

www,euin nemanusl.com
N^TlCE: Thy inforntaiion contained in this a-mal[ message is intended only for the pe:sonaf and tonf^dential use of the recipient ( s) named above . 11us message may be an attorneyrlisnt communication andlarwork produttand as such 1s privileged and confidential . If die reader of this ntessage is not the intended reaplent or agent responsible for delNering it to fire Itttended recipient, you are hereby notiFled that you have srceived this document In error and that any revievr , disserninaGon , distribution, or copying of this message i s strictly prohibited . !f you have received this communication in error, please notify us Irrnnediately by a-mall , and delete Ute ariy3tic^1 rtressayc:.

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^1llllll ^111^IIAli! trial lawyers [ ^iRcolt ualle3r
555 'l'o'in Dutpltin T)rit'c, Suite 560, Redwno^r Shores. C^fifolnitt 910b5 ^ Tae: (GSO) Rol-SObU rax: {GSG) sot-11110

Wtur>;R's DrkzECr Dzu. No. (654} 841-5405
Wxr1'ER'S TISTCRNCr ADDRESS cachelrcassabian ® quinnemanuel.¢am

November 4, 2009
VIa E^MArtJ & CT.S. Malt, Jeffrey N. Mausner, Fsa. Warner Center Towers 2180D Oxnard Street, Suite 910 Woodland Hills, CA }1367 [e-mail]

Re: !'eYfec110, Inc. v. Goagle 1'nc.: Production of Financial Documents Dear Jeff: In reviewing Perfect 10's October 15, 2009 production of its unredacted financial statements and tax returns pursuant to the Court's October 6 Order, we have discovered that Perfect 10's June 30, 2004 and December 31, 2001 financial statements still contain several impermissible redactions, including numerous redactions concerning the Beverly Park property. We presume this was an, inadvertent oversight, as these two monfihly statements appear to lie unchanged from those versions pradueed by Perfect IO earlier in this litigation. Please produce complete and unredacted versions ofPerfect 10's financial statements for June 30, 2004 and December 31, 2001, consistent with the Court's October 6 Order. Additionally, Judge Hillman's October 5 Order obligates Perfect 10 to produce "all of its periodic and annual financial statements . , . to the extent such documents exist." Id In previous letters to Perfect 10 dated March 18, 2008 and August 28, 2008, Google noted that in spite afthe fact that Perfect 10 maitTtains its f nancial statements on a monthly basis, there were numerous gaps in Perfect I0's production. These deficiencies were neither corrected nor explained by the October 15, 2009 production. As just one example, for the year 2007 (during the pendency of this litigation), Perfect l0 failed to produce financial statements far the months of February, May, June, August, Ocfiober, and November. Please produce all afthese missing financial statements (as itemized in Google's March 18, 2008 and August 2$, 2008 correspondence). if
qulnn ellranuel urquttatt auuer a kegges, Ifp
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such documents are no longer in Perfect l U's possession , custody or confrol (including in Mr. ^iersh's files}, please explain what happened to them. _ Please provide all of the above- referenced dvcurrJents and information on or before November 9, 20Q9. Very Eruly yflurs,
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Rachel Herrick KassaFrian

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01980 . 5 ] 3Z0l3 i 84187.4

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EXHIBIT H

EXHIBIT H : Filed Under Seal Pursuant to Protective Order