Perfect 10 Inc v. Google Inc et al

Filing 720

DEFENDANT GOOGLE INC.'S SURREPLY re MOTION for Sanctions Against DEFENDANT GOOGLE, INC. - NOTICE OF MOTION AND MOTION OF PLAINTIFF PERFECT 10, INC. FOR EVIDENTIARY AND OTHER SANCTIONS AGAINST DEFENDANT GOOGLE, INC. AND/OR FOR THE APPOINTMENT OF A SPECIAL MASTER #617 Defendant Google Inc.'s Surreply Regarding Plaintiff Perfect 10, Inc.'s Motion for Evidentiary and Other Sanctions Against Google and/or for the Appointment of a Special Master [PUBLIC REDACTED] filed by Counter Claimant Google Inc, Defendant Google Inc. (Attachments: #1 Surreply Declaration of Rachel Herrick Kassabian in Support Thereof, and Exhibits A-F Thereto [PUBLIC REDACTED])(Kassabian, Rachel)

Perfect 10 Inc v. Google Inc et al

Doc. 720

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QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP Michael T. Zeller (Bar No. 196417) michaelzeller @ quinnemanuel.cam $65 South Figueroa Street , 10th Floor Los Angeles, California 90017-2543 Telephone: [phone]) 443-3100 Facsimile : 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 quinnemanuel.com SSS Twin Dolphin rive, Suite 560 Redwood Shores, California 94065

9 Attorneys for Defendant GOOGLE INC. la 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)] DEFENDANT GOOGLE INC.'5 SURREPLY REGARDING PLAINTIFF PERFECT 10 , INC.'S MOTION FOR EVIDENTIARY AND OTHER SANCTIONS AGAINST GOOGLE ANDIOR FOR THE APPOINTMENT OF A SPECIAL MASTER Surrepply Declaration of Rachel Herrick assabian filed concurrently herewith] Hon. Stephen J. HiIIman Date: January 15, 2010 Time: 10:00 a.m. Place : Courtroom 550 Discovery Cut-off: None Set Pre-trial Conference : None Set Trial Date : None Set PUBLIC REDACTED

13 PERFECT 14, INC., a California corporation, 14 Plaintif#; 15 vs. 16 GOOGLE 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 25 DOES 1 throug^ 100, inclusive, 26 27 28
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Defendants.

GOOGLE'S SURREPLY RE. PERFECT` ] 0'S MOT10N FOR EVIDENTIARY AND OTHER SANCT[ON5

Dockets.Justia.com

1 2

TABLE OF CONTENTS Page

3 ^ Preliminary Statement .............................................................................................. 1 4 ^ Argument ................................................................................................................. 2 5 ^ I. 6 A. 7 8 9 C. 10 11 12 E. 13 14 15 16 17 18 19 20 21 22
C. The "Start-Dates" For Google ' s Blogger and AdSense

P10 STILL HAS NOT PRESENTED A LEGITIMATE DISCOVERY DISPUTE, LET ALONE A VIOLATION OF A COURT ORDER ............... 2 Google Has Produced Its "DMCA Lags" in Compliance With the Court ' s Order . ...................................................................................... 2 Google's Production Of Third-Party Notices Complied With the Court' s Order ....................................................................................... 7 Google Has Produced Notices Of Termination As The Court Ordered ................................................................................................ 9 There Has Been Na Discovery Order Violation Regarding Communications With Particular Alleged AdSense Infringers........... 10 Google's Production of Documents Regarding Its Repeat Infringer Policy Complied With the Court's Order ........................................... 11 Google's Production of Internal Reports And Memoranda Pertaining to Certain Custodians Complied With the Court's Order ................................................................................................. 12 Google Has Produced Communications Between Google And Certain Webstte Owners in Compliance with the Court ' s Order ........ 12

B.

D.

F.

G. II.

NONE OF THE ALLEGED "FACTS" P10 CLAIMS ARE "CONCEDED" SUPPORT P10'S DEMAND FOR DISCOVERY SANCTIONS ................................................................................................13 A. B. ^^oagle's Tracking Spreadsheets Is Irrelevant to Discovery Sanctions .................................. 13 The Contents of Google ' s Blogger And AdSense Spreadsheets
Are Irrelevant to Discovery Sanctions ................................................ 14

23 24 25 E. 26 27 28
019 S D .5 13 2013 272 73 6.1

Spreadsheets Are Irrelevant to Discovery Sanctions .......................... 14 D. DMCA Notices Regarding Are Irrelevant to Discovery Sanctians .......................................................................... 14 Purported DMCA Notices Regarding Rapidshare .com Are Irrelevant to Discovery Sancta, ons ...................................................... 15 Google's Substantive Response to The Referenced 28 P10 DMCA Notices Is Irrelevant to Discovery Sanctions ...................................... 15

F.

GOOGLE'S SURREPLY RE. PERFECT 10'S IdIOTION FOR EVIDENTIARY AND OTHER SANCTIONS

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G. H.

Google ' s Substantive Response to the Referenced Three Notices Regarding Blogger Infringers Is Irrelevant to Discovery Sanctions.... 1 S The Production Format Of Google ' s DMCA Spreadsheets Is Irrelevant to Discovery Sanctions, and P 10 Agreed to It In Any Event ................................................................................................. 16 P10's Claims Regarding Its "Adobe Notices " Are Irrelevant to Discovery Sanctions .......................................................................... 16

3' 4'. 5 b III. 7 8 IV. 9 10 11 I.

GOOGLE'S PROCESSING OF P10 DMCA NOTICES SUBMITTED
AFTER THE CLOSE OF DMCA BRIEFING ALSO IS IRRELEVANT TO DISCOVERY SANCTIONS .................................................... AS THE COURT HAS ALREADY INSTRUCTED P10, ITS ARGUMENTS REGARDING CHILLINGEFFECTS.COM ARE MISPLACED, AND HAVE NOTHING TO DO WITH ANY DISCOVERY ORDER ................................................................................. 17

V.

GOOGLE'S "CHARACTERIZATIONS" OF P10'S MOTION ARE
ACCURATE ................................................................................................. 17

12 Conclusion .............................................................................................................. 18 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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TABLE OF AUTHORITIES P. age Cases

4 Access Telecom, Inc v MCI Telecommunications Corp., 197 F.3d 694 (5th Cir . 1999} ................................................................................ 18 5 Sullivan v. City of Sprin^elj , 09 ................................................................................... 18 561 F.3d 7 1st Ir. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Statutes 17 U.S.C. 17 U.S.C. 17 U.S.C. 512 c ..................................................................................................... 8 512 d^ ................................................................................................... . 8 512 i} .....................................................................................................11

Rule 30(b){6) ............................................................................................................9

Rule 56(^ .........................................................................................................1, 18

iii GOOGLE'S SURREPLY RE. PERFECT 10'S MOTION FOR EVIDENTIARY AND OTHER SANCTIONS

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Preliminary Statement Pursuant to the Court's Order dated December 21, 2009 (Dlct. No. 689),

3 Google Inc, submits the following surreply regarding Perfect 10, Inc.'s ("P 10") 4 motion for evidentiary and other sanctions against Google. S Like its moving papers, P10's reply papers fail to address, much less satisfy,

6 the standard applicable to its sanctions motion -namely, the violation of a specific 7 Court order and resulting prejudice to P10. Instead, P10 devotes its reply to two 8 things: (1) rehashing the same unfounded discovery complaints it made in its moving 9 papers , and (2} asserting various inappropriate , untimely substantive arguments going 10 to the merits of Google's DMCA motions for summary judgment , which are currently 11 under submission before Judge Matz . Neither of these strategies succeed. I2. First, as Google's opposition shows, PIO's discovery protests are groundless

13 and do not even arguably satisfy the high burden for imposing evidentiary sanctions, 14 because (among other things) no violation of any court order has occurred. Second, 15 P10's merits-based arguments have no place here (or anywhere else for that matter},' 1b because briefing on Google's DMCA Motions has long been closed-and even if it '' 17 wasn't, P10's arguments lack merit in any event. In these circumstances, P10's 18 primary relief sought----a draconian demand for summary judgment in its favor on the 19 issue of DMCA safe harbor is a model of baseless overreaching. 20 21 P10's reply brief also defeats the alternative relief it claims to be seeking. Specifically, P10's motion alternatively sought sanctions in the form of re-opening

22 briefng on Google's DMCA Motions to conduct discovery that P10 claims Google 23 should have produced years ago. 24 25 have had. However, PIO's reply confirms that P10 _ and thus waives any such claim PIO might Waiver aside, P 10 had every opportunity to make such arguments in

26 opposition to Google's DMCA Motions last summer, but chose not to do so, instead z7 electing to oppose them on the merits and fle its own cross-motion. P10 cannot 28 ^ escape its concession that it needed no further discovery on DMCA issues.
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GOOGLE'S SURREPLY RE. PERFECT 10'S MOTION FOR E^IIDENTIARY AND OTHER SANCTIONS

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P10's latest volley of vitriol aside, the fact remains that Google has complied ^

2 with all Court orders in this case, and P 10 has not demonstrated otherwise. P 10's ^ 3 motion should be denied. 4 5L 6 7 Argument P10 STILL HAS NOT PRESENTED A LEGITIMATE DISCOVERY DISPUTE, LET ALONE A VIOLATION OF A COURT ORDER. In its Opposition to P10's evidentiary sanctions motion (Dkt. No. 647)

8 ("Opp."}, Google identified the relevant standard governing the evidentiary sanctions 9 P10 seeks-----namely, that P10 must establish (inter olio) (1} a violation of a court la order by Google, {2) resulting prejudice to P10, and {3) satisfaction of other factors, 11 including a demonstration that lesser sanctions are unavailable. See Opp. at 1-5.

12 P10's reply (Dkt. No. 659, filed under seal} ("Reply") does not even address this 13. standard, much less meet it. Instead, P 10's Reply merely re-hashes the discovery 14 accusations in its original motion (Dkt. No. 620, filed under seal) ("Motion"}-

15 which brief also failed to address the governing standard. See Opp. at 1-5. The 16 Court need look no further to deny P10's Motion. In any event, P10's scattershot 17 ^ discovery claims are addressed and refuted in turn below. 18 19 20 21 A. Google Has Produced Its "DMCA Logs" in Compliance With the Court' s Order. P10's Reply insists -----again-that Google has not produced its "DMCA log." I, Reply at 6-8. P10 made this same argument in its Motion (at 6-10}, and Google has. opposition papers. See Opp. at 5-8.

22 already demonstrated its falsity in Google'

23 Specifically, in compliance with the Court's May 13, 2008 Order Google produced its 24 DMCA log documents, including "spreadsheet-type" documents and other processing 25 records. See Opp. at 5--8; Declaration of Rachel Herrick Kassabian dated December 26 7, 2009 (Dkt. No. 645} ("Kassabian Decl."} ¶'^ 12, 16 & 17 {explaining production, 27 identifying specific documents produced bearing Bates numbers 28
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GOOGLE'S SURREPLY RE. PERFECT 16'S MOT10N FOR EVIDENTIARY AND OTHER SANCTIQNS

1 2 and referencing sample documents

3 produced); Surreply Declaration of Rachel Herrick Kassabian fled concurrently 4 ("Surreply Kassabian Decl."} ^ 3 (identifying additional processing documents and 5 logs produced bearing Bates numbers 6 P10's incessant arguments to the contrary ignore reality. 7 ,May 13, 2008 Order. 8 P10's Reply goes on to present a disorganized list of twelve gripes P10 has As a preliminary matter, these Google did not violate the ^

9 concerning Google's "DMCA log" documents.

10 arguments contradict P10's prior insistence that Google never produced such 11 documents. Reply at 6-8.^ Contradictions aside, P10's complaints are largely a reMost importantly, none of these Google

12 hash of prior arguments, and not one has merit.

13 complaints implicates any discovery order, much less the violation of one. 14 addresses them below, grouped by subject matter for the Court's convenience: 1S

Objections to Content (N©s. 1, 2, 3, S, 9, 10}: Irrelevant . Pi0 claims that

15 Google's "DMCA log" documents do not include a variety of information P10 thinks 17 they should contain-for example, 18 19 (Nos. 8 and 9), and (No. 2), (Nos. 3 {No. 1),

20 and 10). Reply at 6-7. P10 has made all these claims before {see Motion at 9 and 21 22 23 ' P10 complains in a footnote that certain Bates ranges Google now identifies as 24 part of its "DMCA log" documents were not listed in Google's June 13, 2008 courtesy email. Reply at 6, n.S. P10 is correct -for the unremarkable reason that 2S Google supplemented its production of its DMCA tracking documents in the fall of 26 2008, after Google had provided the June 13, 2008 courtesy email. See Kassabian Decl. ^ 16 (referencing supplemental productions in August and September 2008). 27 This has nothing to do with any discovery order. 2$
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17), and Google has already explained that they are completely irrelevant to the issue

3a
GOOGLE'S SURREPLY RE. PERFECT f 0'S MOTION FOR EVIDENTIARY AND OTHER SANCTIONS

f

1

of discovery sanctions.

Opp. at 6. Specifically, the Court's May 13, 2408 order

2 required Google to produce its DMCA log documents, and Google did so. That P I D 3 might have kept a different type of log or used a different format has no bearing on 4 the fact that Google complied with the Court's Order and produced its DMCA log 5 documents.2 6 Objections to Format ( No. 11 ): False. P1D also objects to the format of

7 Google ' s production , claiming that the documents were "disjointed" and "not 8 searchable ." Reply at 7-8 . Again , P 10 has already presented this argument-

9 verbatim , in fact see Motion at 11:18-19 )-and Google has already shown it to be 10 false . 11 Opp. at b. Google ' s production was made in afully-searchable format

(including the single-page TIFF and JPEG fles^and in a format to which P10's Id . P10's counsel 7eff Mausner submits a Reply

12 counsel expressly agreed.3

13 Declaration attempting to contradict the clear terms of his written agreement to 14 Google's single-page TIFF format of electronic document production , claiming that it 15 1^ 17 18 19 24 21 Although presented in the guise of a "sanctions" motion, P1D's arguments 2 regarding the suff ciency of the content of Google's DMCA tracking documents are a transparent attempt to re-argue the merits of Google's qualification for safe harbor. P10 had all of these DMCA tracking documents in its possession at the time it opposed Google's DMCA Motions, and had a full and fair opportunity to make whatever arguments it wished at that time. Those Motions are fully briefed and under submission before Judge Matz. P10's belated and improper attempt to supplement its prior briefing should be rejected out of hand. Gaogle's DMCA Motions 3 P10 cries that it because of the electronic file format of Google's document productions. Reply at 89. But in fact, P 10 did oppose Google's DMCA Matians an their merits-and also managed to filed its own DMCA motion against Google-without ever raising an objection regarding the format of Gaogle'sa document productions. Nor could it in any event, since P1D agreed to that format. See Opp. at 4. P10's principal holds himself out to be an expert in computer science and technology, and P1D is an extremely experienced litigant. P10 knew exactly what 'it was agreeing to in consenting to Gaggle's production of documents in single-page TIFF format, and cannot now be heard to complain about this standard production format.

22
23 24 25 26 27 28
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GOOGLE'S SURREPLY RE. PERFECT 10'S MOTION FOR EVIDENTIARY AND OTHER SANCTIONS

1 ^ "was only for Google's production on Thursday, May 1, 2008, not for the 2 spreadsheet-type DMCA log specified in Judge Matz's later [May 13) Order." Reply 3 Declaration of Jeffrey N. Mausner dated December 13, 2009 (Dkt. No. 660) ¶ 5. This 4 statement is not credible. At an April 14,^ 2008 hearing, Judge Matz affirmed the

5 Court's February 22, 2008 order requiring Google to produce its DMCA log 6 documents on May 1, 2008 (though Judge Matz's written order did not issue until 7 May 13), and Mr. Mausner acknowledged his awareness of this production deadline S to Google's counsel in writing on more than one occasion. Surreply Kassabian Decl. 9 ¶¶ 6-10 and Exs. C-E. In fact, shortly after receiving Google's May 1, 2008 la production, Mr. Mausner specif cally asked Google to identify (by "bates number or 11 12 of number"} where in that production the DMCA lag dacuments were located. Id. ¶ 12 and Ex . F. Without question , P10 knew of and consented to Google ' s production Although P10's Reply adds a new

13 of its DMCA log documents in TIFF format .

14 objection that some of Google ' s color documents were produced in .jpg format, P10 15 can hardly complain about that format since its own production-the alleged virtues

16 of which P10 has extolled at length-includes large numbers of jpg files. See, e.^., 17 Joint Stipulation on Google's Motion to Compel (Dkt No. 408) at 109-110 {claiming 18 the "superiority of Perfect 10's current production" and referencing particular "jpg 19 files" contained therein). And as Google has already shown, P10 has never even

20 requested-much less obtained a court order that Google produce its electronic 21 document productions in a different format. See Opp. at 6; Kassabian Decl. ¶ I S.

22 Again, no discovery order is implicated here.4 23 24 ^ On Reply, P10 again takes issue with certain unspecified redactions of certain unspecified documents. Reply at 4. Google already explained that (1) the redactions 26 to Google's "lag" dacuments were made to protect the attorney-client privilege (Opp. 27 at 6 n.7), and {2) the Blogger tracking spreadsheet was in fact produced in complete and unredacted form. Id. {citing Blogger Reply at 7:12-14 and n.7). And in any 28 (footnote continued) 25
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GOOGLE'S SURREPLY RE. PERFECT ] 0'S MOTION FOR EVIDENTIARY AND OTHER SANCTIONS

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Objections to Organization (Nos. 4, 5, and I2): Irrelevant . P10 claims that

2 Google's "DMCA log" documents were somehow not "useful" to P10 because they 3 were not organized in a particular way-for example, by placing certain information 4 or other documents "next to" each other. Reply at 7-8. Again, Google has already 5 explained that it produced its documents as they exist at Google, which is all that is b ^ required. Opp. at 6-7. No violation of any court order has occurred. 7 Objections to Production Dates ( Nos. 6 and 7): Irrelevant. P10 next Reply at 7. ^

8 ^ objects to the dates of production of the Blogger and AdSense logs.

9 Again, these arguments are nothing new (Motion at 10 and n.8}, and Google has 10 previously refuted them. Opp. at 7. Specifically, there was nothing untimely about 11 Goagle's production and its supplementation of that production. Indeed, Google

12 produced its DMCA tracking spreadsheets for BIogger before P10 even requested 13 them. Id. P10's new claim that the Court's May 13, 2008 Order (issued months 14 before P10's Blogger claims even were added to the case) required the production of 15 the Blogger DMCA tracking spreadsheets is also belied by P10's statements at the 1b hearing resulting in that Order, in which P10 requested only "a DMCA Iog far 17 search ." Surreply Kassabian Decl., Ex. C (transcript of April 14, 2009 hearing}. And 18 even were P 10 correct (though it is not) that Google should have produced these 19 documents in May 2008 rather than August/September of 2008, P10 could not 20 possibly articulate how this slight delay could warrant a complete denial of Gaogle's 21 DMCA Motions as a sanction . P10 had ample time to review these documents, since 22 Google's DMCA Motions were not filed until July 2009, nearly a year later. Once 23 again, there is no discovery violation here, much less a violation that prejudiced P10. 24 25 26 27 28
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event, no discovery order is implicated by this allegation since P10 has never fled a motion or obtained an order regarding these redactions.

GOOGLE'S SURREPLY RE. PERFECT 30'8 MOTION POR EVIDENTIARY AND OTI-IER SANCTIONS ^

1 2 3

B.

Goole ' s Production Of Third-Part_y_ Notices Complied With the Court's Order.

P10's reply next argues ( again ) that Google should have but did not produce

4 third-party DMCA notices concerning Google's BIogger service. See Reply at 4-12. 5 As before, P10 is still wrong. Google has already shown that P10 never requested 6 third-party Blogger notices, nor did this Court order their production. Opp. at 9-10; 7 see also Kassabian Decl. ^¶ 12 and 17 (referencing Gaogle's production of other 8 third-party natives in response to the Court's May 22, 2006 and May 13, 2008 Orders s As 9' at 10 previously explained, P10 represented to Judge Matz that if it were permitted to add 11 Blogger claims to its complaint, 'would then need to serve Blogger-related

12 discovery requests. Opp. at 7; Kassabian Decl. ¶¶ 20-22, Ex. Q. P10 did not do so 13 until fourteen months later, in September 2009-and even those requests did not ask 14 for BIogger DMCA notices. Opp. at 7; Kassabian Decl. ^( 23. P 10's reply brief

15 completely ignores these glaring facts. There is no discovery order violation here. 16 Notwithstanding the immutable fact that P10 never requested Blogger DMCA

17 notices, P10's reply presses four reasons why it thinks Google should have produced 18 them anyway. These are merely re-packaged versions of P10's prior arguments, and 19 fail for the same reasons previously provided. 20 21 22 23 24 25 26 27 28
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Reply at 5. But Judge Matz has already found otherwise. See July 16, 20.08 Order ("P10 argues vociferously that Google concealed its storage of full-size images during discovery and misrepresented this fact to this Court and the Ninth Circuit. That argument is dubious."). Nar could it even plausibly be true-^Google's acquisition of Blogger was publicly reported in 2003 see e. . http:/IsearchencLnewatch.com/2.161891), and Google's ownership of Blogger is evident on the Blogger website itself. And most importantly, Google was not obliged to produce documents P10 never requested.

7 GOOGLE'S SURREPLY RE. PERFECT IO'S MOTION FOR EVIDENTIARY AND OTHER SANCTIONS

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1

First, P10 claims that Blogger URLs appear in Google search results and that

2 certain Blogger URLs incidentally appeared in certain of P10's 2005 DMCA notices.. 3 Reply at 10. This is correct, but irrelevant-Blogger URLs certainly do appear in 4 Google search results, along with everything else Google indexes, but it does not 5 follow that everything Google indexes is part of P 10's case. Nor is it relevant that an 6 occasional Blogger URL appeared in P10's DMCA notices directed to Web and 7 'Image Search. See Blogger Motion at $ (Dkt. No. 427). P10 sought leave to amend 8 'its complaint to add Blogger claims in July 200$-which it would not have needed to 9 ^^ do if in fact Blogger has always been a part of the case. At that time, P10 professed 10 that i^ the master of its case-did not know that it had Blogger claims against 11 Google until shortly before it approached the Court to seek amendment. See P 10's

12 Motion for Leave to File a Second Amended Complaint (Dkt. No. 297) at 2 (claiming' 13 that P10 "only recently learned about" its BIogger allegations}. Google cannot be

14 sanctioned far not producing documents regarding matters even the plaintiff did not 15 consider to be a part of its case. 16 Second, P10 again claims that its Request No. 51 required the production of

17 Blogger notices. Reply at 10. It did not, and Google has already refuted this claim in 18 detail. Opp. at 9-10. 19 Third, P10 claims for the first time that because Google voluntarily produced

20 some Blogger notices, it should have produced more. Reply at 11. This is irrelevant 21 to P10's demand for sanctions, since again, P10 never requested Blogger notices and 22 ^ this Court never ordered their production. Opp. at 9-10. 23 24 25 6 In this surreply Google refers to its Motion for Summary Judgment re: Safe 26 Harbor under 17 U.S.C. § 512(d) for Web and Image Search (Dkt. Na. 428) as its "Search Motion" and its Motion for Summary Judgment re: Safe Harbor Under 17 27 U.S.C. § 512(c} for its BIogger Service (Dkt. No. 427) as its "Blogger Motion." 28,
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Fourth P 10 claims that Google's production of its Blogger DMCA tracking

2 spreadsheets was not timely, and that P 10 was 3 This has nothing to do with the production of DMCA notices, and is redundant of 4 P10's earlier arguments regarding Google's DMCA logs see p. 6, su ra ,but in any 5 event, P10 is wrong again. Google timely produced its Blogger DMCA tracking

6 sheets in August 2008 -just one month after P10 added its Blogger claims, and 7 before P10 even requested them. Opp. at 9-10. Nor could P10 possibly articulate 8 prejudice from the timing of this production. P10 had several months to review these 9 documents before it deposed Google's Rule 30(b)(6) witness on DMCA issues in 10 November 2008, and nearly a year to review them before Google fled its DMCA 11 Motions in July N09. Opp. at 9-10; Kassabian Decl. ¶¶ 22-23. P10 may have failed

12 to do so, but Google cannot be blamed for that. 13 14 15 C. Goole Has Produced Notices Of Termination As The Court Ordered. P10's Reply repeats its objections to Google's production of "notices of

16 ^ termination." Reply at 12-13; see also Motion at 13. But as already shown, Google 17 did produce such termination notices and other termination documents. Opp. at 10; 18 Kassabian Decl. ¶ 25 & Ex. S (attaching sample produced documents with bates 19 numbers); Surreply Kassabian Decl. ¶ 4 (listing responsive documents produced at 20 21 Decl. (Dkt. Nos. 433-435} 37 and Ex. J .(Blogger spreadshee Poovala ; id. at

22 ¶ 38 and Ex. LL (AdSense spreadshee

P10 also reiterates that

23 Google supposedly violated the Court's May 2006 Order by failing to produce 24 termination notices for Blogger. But again, that Order did not encompass Blogger

25 documents because Blogger was not part of the case in until July 2008-over two 26 years after that Order issued. Opp. at 9-10 and n.13. Nor has P10 ever requested

27 such Blogger documents, much less obtained a Court order compelling them. Id. 28 And in any event the BIogger DMCA tracking spreadsheets provide 01984 ,5132^/327Z736.1

GOOGLE'S SURREPI.Y RE. PERFECT 10'S MOTION FOR EVIDENTIARY AND OTHER SANCTIONS t

}

1 2

. Poovala Decl. {Dkt. Nos. 433-435) ¶ 37 and Ex. J (Slogger spreadshee#^ No discovery order has been violated. Moreover, P10 makes no

3 showing of prejudice suffered from not having more termination documents, nor 4 could it. Goggle has already produced documents showing exactly which repeat

5 infringers were terminated, and when. See Search Motion at 6-7. 6 7 8 9 D. There_ Has Been_ _ No Discovery ___ Order _ Violation Re^ardin^

Communications With Particular Alleged AdSense Infringers. P10 next claims that Gaggle did not produce certain communications with the including and Reply

10 at 13. In fact, P10 admits that Google has produced communications related to these 11 websites. Reply at 13; Reply Declaration of Norman Zada dated December 13, 2009 12 (Dkt. No. 659, filed under seal) ("Zada Reply Decl.") ^ 11 13 P10 speculates

14 ^ that there might be some unidentified additional communications, but does not 15 specify what communications it believes are missing , what those communications 16 might contain , or why or how P 10 was prejudiced in opposing Gaogle's DMCA 17 Motions without them. Google complied with the Court's 2006 Order and produced 18 cammunications with the owners of the websites listed in Request No. 29 "to the 19 extent that ownership information is reflected in Google's records" on April 18, 2006

2a
21 22 23 24 25

at

and on April 26, 2006 at

Surreply

Kassabian Decl. ¶ 2.7 No discovery order has been violated.

26
27 Decl., Ex. H. This is not a basis for evidentiary sanctions.

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10 _ GOOGLE'S SURREPLY RE. PERFECT 10'S MOTION FOR EVIDENTIARY ANI7 OTHER SANCTIONS

1 2 3

E.

Gao^le' s Production of Documents Re^ardin^ its Repeat ^nfrin^er' Policy Complied With_the_Court's Order.

P10's Reply again objects that Google should have, but has not, produced

4 ^ repeat infringer policy documents referencing the phrases 5 Reply at 14; see also Motion at 13-14. P10 is wrong.

6 ^ As Google previously explained, Google collected and produced its repeat infringer 7 documents, including its public-facing terms of service and the actual processing 8 documents reflecting Google's implementation of its repeat infringer policies. Opp.

s
to 11

at 8; Kassabian Decl. ¶¶ 16, 26 (identifying responsive documents produced at -

12
13

14

The Court's May 22, 2009 Order merely required production of

15 ^ "nonprivileged responsive documents " for P.10's Request No. 30, seeking all versions

16 ^ of Google's "repeat infringer policy, from 2000 to the present." That is what Google
17 ^ produced. Google is not required to create documents in response to P10's discovery 18 I^ requests, nor was it required to produce privileged documents. Google has complied 19 with this Order. Opp. at 8-9.g 24 21 22 23 24 25 2b 27 28
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P10 also repeats its ar ument that Google has violated the DMCA by not in its public repeat infringer including the phrases ^ policy. Reply at 14; see also Motion at 13-14. This is a merits argument, not a discovery argument, and thus is irrelevant here. Moreover, it is incorrect. The DMCA only requires that Google adopt and reasonably implement a repeat infringer policy, and inform its subscribers and account holders of same. 17 U.S.C. § 512(1). Google had indeed informed its subscribers and account holders that its policy is to terminate repeat infringers. Poovala Decl. (Dkt. Nos. 433-435 36-39. The DMCA has no requirement that service providers - and P10 cites no authority to the contrary.

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lY GOOGLE'S SURREPLY RE. PERFECT ] 0'S MOTION FOR EVIDENTIARY AND OTHER SANCTIONS

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F.

Goole ' s

Production

of internal

Reports

And

Memoranda

_ Pertaining to Certain Custodians Complied With th a Court ' s_Order. P10 again insists that Google failed to produce certain "reports" or Reply at 15;

4 "memoranda" on particular subjects involving particular custodians. S Motion at 19-20.

Google has already refuted this argument as well-Google

6 searched for responsive documents and produced the 7 documents it located. documents produced at 9 10 11 G. Opp. at 11; Kassabian Decl. ¶ 31 (identifying responsive No discovery order was violated.9

Goode Has Produced Communications Between Gaggle And Certain Website Owners in Compliance with the Court' s Order.

P10 claims that Google has not complied with the portion of Judge Hillman's

12 May 22, 2006 Order requiring production of "communications between Google and 13 ^ the owners of the following websites, to the extent that ownership information is 14 reflected in Google's records: [ list of websites ]" andlor the portion requiring

15 production of "[a]11 DOCUMENTS that constitute or embody GOOGLE's response 16 to any notice or complaint that GOOGLE received from Perfect 10 either directly or 17 indirectly in either 2004 or 2005. Reply at 16. P 10 is again wrong. 18 Regarding the former, Google has already explained that it complied with the

19 Court's 2006 Order and produced communications with the owners of the websites 20 listed in Request No. 29 "to the extent that ownership information is reflected in 21 ^ Google's records " (as the Order states) on; April 1 S, 2006 at 22 and on April 26, 2006 at 23 Decl. ^ 2. 24 25 26 27 28'
01980 ,513201327273 G. l

. See § I .D, supra; Surreply Kassabian

And regarding the latter, as above, Google has also produced these -

Reply at 19 whatsoever for its speculation.

P10 of course has no basis

GOOGLE'S SURREPLY RE. PERFECT 10'5 MOTION FOR EVIDENTIARY AND OTHER SANCTIONS

1 specifically, its DMCA processing documents regarding P10. Kassabian Decl. ^¶ 12 2 and 16 (identifying responsive documents located at 3 4 1^

S Surreply Kassabian Decl. ¶ 3 {identifying additional responsive documents located at 6 7 8 see

9 'also Declaration of Rachel Herrick Kassabian in Support of Google's Opposition to i0 ^' P 10's Motion for a Document Preservation Order (Docket No. 693) ¶14 ("Goggle has 1I ,produced over 1,000 emails from various email accounts regarding its processing of 12 ^ Perfect 10's claimed DMCA notices"). Indeed, even P i 0 admits that some "such 13 ^ communications" have been produced . Reply at 16. 14 II. 1S 16 17 NONE OF THE ALLEGED "FACTS" P10 CLAIMS ARE "CONCEDED" SUPPORT P10'S DEMAND FOR DISCOVERY SANCTIONS. P10's Reply claims that Goggle "has not disputed" a number ofits accusations,

18 and that therefore, Google is precluded from any DMCA safe harbor. P 10 misses the 19 mark , since none of these supposed concessions supports evidentiary sanctions. 20 21 22 23 A. Whether Goole's Tracking Spreadsheets

- Is Yrrelevant to Discovery Sanctions. P10 claims that Google concedes that Gaogle's "DMCA logs" do not contain as P10 defines it. Reply at I7 (repeating Reply

24 at 6, itself repeating Motion at 3). But as Google has already shown, the DMCA does

zs

not require Google to track - as P10 uses the term---Google need only track

26 accounts, and terminate them where appropriate see Opp. at 1 S; Blogger Reply at 9
27 (Dkt. No. S04)). What matters here is that Google produced its DMCA log tracking

28 documents as ordered. See Opp. at 6-7. There is no discovery violation here.
OI980 .513201327273b.1

_13 GOOGLE'S SURREPLY RE. PERFECT 10'5 MOTION FOR EVIDENTIARY AND QTHER SANCTIQNS

s

1 2 3

S.

The Contents of Goo le's Blo

er And AdSense S readsheets Are

Irrelevant to Discovery Sanctions. P10 again repeats a Iitany of alleged "deficiencies" in Google's AdSense

4 spreadsheets, claiming that Google has conceded them. Reply at 17-19. Google has S not, but more importantly, as Google has already pointed out in its opposition brief, 6 P10's complaints regarding the contents of the AdSense sheets go to the merits of the 7 DMCA safe harbor issue and are not in fact a discovery dispute. Opp. at 17-19. The 8 only relevant question here is whether Google produced its "DMCA log" documents, 9 and Google did so. Opp. at b. In any event, Google has already refuted P 1 a's

1a
12 I3 14

accusations regarding the contents of these spreadsheets {Opp. at 17-2Q) and its

11 repeat infringer policy (Opp. at 8-9). C. The " Start- Dates" For Goo^Ie ' s Blo^^er and AdSense Spreadsheets Are Irrelevant to Discovery Sanctions. P10 again insists that because Google's Blogger and AdSense logs begin on

IS particular dates, Google is somehow ineligible for DMCA safe harbor before those

16 dates. Reply at 19; Motion at 16.

As Google has already shown, P10 is wrong

I7 again-Google produced its tracking documents, thereby fulfilling its discovery
18 obligations. See Opp. at 6-7. On the merits, P10 presents no authority that the

19 DMCA requires maintenance of any particular type of "log" document for any

2a
21 22 23

particular period of time. See id.1° D. DMCA Notices Regarding Sanctions. P10 repeats its claim that Google "failed to take action" in response to alleged Are Irrelevant to Discovery

24 ^ DMCA notices received regarding one. 25

26

'° P10's accusation regarding the start date of Google's Blogger log is also false - Google produced BIagger DMCA tracking spreadsheets dating back to 27 -. See Blogger Reply at 6. 28
0198Q .i1320/3272736.1

GOOGLE'S SURREPLY RE. PERFECT IO'S MOTION FOR EVIDENTIARY AND OTHER SANCTIONS

1 _. Reply at 19; Motion at 16. Again, this is irrelevant because (1) to the extent 2 it is a discovery issue, P10 has never served discovery requests regarding Google 3 Groups, nor has any order issued on that subject, and {2) to the extent it is a merits 4 issue, it has no bearing on this discovery sanctions motion. Opp. at 7 n.9. 5 6 7 E. Purported DMCA Notices Re^ardin^ Rapidshare .corn Are

Irrelevant to Discovery Sanctions. P10 again urges that Google produced some DMCA notices received regarding

8 "rapidshare.com," but not others, and that Google should have "take[n] action" in 9 response. Reply at 20; Motion at 12-13 and 17. Google has previously refuted this 10 claim (Opp. at 18). Moreover, because P10 admits that Google produced at least six 11 separate DMCA notices regarding rapidshare.com, P10's claim that it would have

12 discovered "repeat infringers" from production of more such documents falls flat13 the alleged additional notices would have identified the same entity, rapidshare.com. 14 Nor does P10'smerits-based argument that Google should have responded differently I5 to these notices under the DMCA have any place in this discovery sanctions motion. 16 No discovery order has been violated. 17 18 19 F. ^

Goo^le ' sSubstantive Response to The Referenced 28 P10 DMCA Notices Is Irrelevant to Discovery Sanctions.

P10 again points to 28 of its own purported DMCA notices and suggests that

20 Google should have responded to them differently than it did. Reply at 21; Motion at 2I 16-17. This too is a merits issue, not a discovery issue, and has no bearing here. On

22 the merits, Google has already refuted these claims in its DMCA Motions. See 23 24 25 2b Search Motion at 19-24; Blogger Motion at 7-10. G. Goole ' s Substantive Response to the Referenced Three Notices ear ins o^^er nfrin ers Is Irreleva, nt to Discovery, Sanctions. g P10 repeats its claim that Google did not respond appropriately to particular

27 DMCA notices regarding particular Blogger sites . Reply at 21; Motion at 11. Again, 28
41980 .5132413272735.1

GOOGLE's SURREPLY RE. PERFECT 10'5 MOTION FOR EVIDENTIARY AND OTHER SANCTIONS

1 ^ this is not a discovery issue. On the merits, Google has already refuted these clairrls 2 ^ in its DMCA Motions. See Blogger Motion at 7-1D. 3 4 S 6 H, The Production Format Of Goole ' s DMCA Spreadsheets Is Irrelevant to Discovery Sanctions ,_ and P10__^reed to It In Any Event. P10 again objects to the format of Google's document production. Reply at

7 21-22. But as Google has pointed out (including at § I.A, supra and Opp. at 6}, P10 8 agreed to Google's format of production, and Google's electronic documents have all 9 been produced in searchable format. Opp. at 4 and 6. Nor was there ever any Court 10 order an this subject, sa plainly, there could have been no violation of same. 11 12 13 L P10' s Claims Re^ardin^ Its "Adobe Notices " Are Irrelevant _to Discovery Sanctions. Lastly, P10 presents yet another objection to the contents of Gaogle's "DMCA

14 ^ log" documents, 15 Reply at 22. Again, Google produced its log documents as

16 they exist, which is all the Court's order requires. See Opp. at 6. P10' s remaining 17 merits arguments regarding whether Google's processing efforts were expeditious 18 have no place in this discovery sanctions motion, and in any event, Google has 19 already refuted them. See Search Motion at 12-15; Blogger Motion at 10. 20 IIL 21 22 23 GOOGLE'S PROCESSING OF P10 DMCA NOTICES SUBMITTED AFTER THE CLOSE OF DMCA BRIEFING ALSO IS IRRELEVANT TO DISCOVERY SANCTIONS. P 1 D's Reply next discusses the 95 DMCA notices with which P10 bombarded

24 Google in a six^week period beginning on October 16, 2009 . P10 argues that because 25 Google has processed them , they must not be deficient . Reply at 22-23. As a

26 preliminary matter , this is not a discovery issue, and thus is irrelevant here. On the 27 merits , P 10 is wrong because a service provider's attempt to process a defective 28
01480 ,513^0132y2736.1

__

16

GOOGLE'S SURREPLY RE. PERFECT 10'S MOTION FOR EVIDENTIARY AND OTHER SANCTIONS

1 ^ DMCA notice may not be used as evidence that the notice was in fact DMCA- ^ 2 compliant. See, e.^., Search Motion at 23-24; Search Reply at 8-9 (Dkt. No. 505}. 3 IV. 4 5 6 7 AS THE COURT HAS ALREADY INSTRUCTED P10 ITS ARGUMENTS REGARDING CHILLINGEFFECTS.COM ARE

MISPLACED, AND HAVE NOTHING TO DO WITH ANY DISCOVERY ORDER. P10 argues that Google infringes P 10's copyrights by forwarding P 10's This argument is irrelevant here because it

8 DMCA notices to chillingeffects.com.

9 does not even implicate a discovery order, let alone constitute a violation of one. Nor 10 is it in any way relevant to DMCA safe harbor issues. And moreover, the Court has 11 already explicitly instructed P10 at the September 22, 2009 hearing that it cannot

12 raise objections regarding chillingeffects.com as a sidebar to another discovery 13 motion. P 10's arguments have no place here. 14 V. 15 16 GOOGLE'S "CHARACTERIZATIONS" OF P10'S MOTION ARE ACCURATE. Lastly, P10 claims that Google has somehow "mischaracterized" its Motion.

17 Not so. First, P10 argues that its Motion is not a "sur-reply." Reply at 24. This is 18 facially incorrect. 1n both its moving and reply papers, P10 presents a wide variety of I9 substantive arguments going to the merits of the DMCA safe harbor issue-^---for 20 example, the sufficiency of Google's repeat infringer policy, the contents of P10's ^ 21 DMCA notices , and tlae adequacy of Google's responses to various DMCA Notices.

22 See, e . i7., Motion at 1-2, S, 7; Reply at 2, S, 14-15. None of these arguments have any 23 place here, and are inappropriate , untimely and meritless in any event, as Google has 24 previously explained. See, e . ^., Opp. at I4. 25 2f Second , P10 claims that it Reply at 24. But P10's Motion of course does seek

27 additional discovery, in the form of additional documents that P10 believes (1) exist, 28 and {2} should be produced now. See Motion at 1-b. Nevertheless, not only did P10 ^
O1980 .5E3^0I3272736.E

GOOGLE'S SURREPLY RE. PERFECT 10'S MOTION FOR EVIDENTIARY AND OTHER SANCTIONS

1

waive any claim to additional discovery by failing to bring a Rule 56(f} motion in the

2 first instance, it now expressly disclaims relief under Rule 56(f) as well. For both 3 reasons, P10 has waived any claim to reopen briefing on Gaogle's DMCA Motions' 4 following pursuit of additional discovery. See Access Telecom, Inc. v. MCI

5 Telecommunications Corp., 197 F.3d 694, 7I9 (5th Cir. 1999) (plaintiff "waived the 6 issue of inadequate discovery" by failing to file a Rule 56(f} motion}; Sullivan, v,... City 7 of Springfield, 561 F.3d 7, 16 (1st Cir. 2009} (plaintiffs could not argue that summary

.

g judgment was premature when "they aff rmatively requested that the court resolve the
9 case on the existing evidence"). 10 11 Third, P10 insists that its request for a special master is appropriate. It is nat. P10 has failed to demonstrate the need far a special master to rule on this motion, as

12 Google has already shown. Opp. at 20-21. P10 does not even address the relevant 13 standards for that determination, much Less articulate any reason why this Court is 14 somehow incapable of ruling on discovery matters. Plainly, the Court is more than 15 qualif ed to determine the scope of and compliance with its own discovery orders. 16 Indeed, Judge Matz has already implicitly rejected the "special master" proposal by ^ 17 transferring this Motion to the Court for determination as it deems appropriate. See 18 Surreply Kassabian Decl., Ex. A (December 16, 2009 Order (Dkt. No. 684}}. 19 20 Conclusion Google respectfiilly requests that P I O's Motion be denied andlor stricken in its

21 ^ entirety, and that P10 andlor its counsel be sanctioned in the amount of $5,004 for ^ 22 subjecting this Court to yet another baseless , groundless , and improper filing. 23 DATED: January 8 , 2010 24 25 26 27 28
O1480.5E32a13272736.f

QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP

Rachel Herrick Kassabian Attorneys for Defendant GOOGLE INC.

GOOGLE'S SURREPLY RE. PERFECT IO'S MOTION FOR EVIDENTIARY AND OTHER SANCTIONS