Perfect 10 Inc v. Google Inc et al

Filing 728

RESPONSE IN SUPPORT of MOTION for Order for Document Preservation to Prevent Further Spoliation of Evidence by Perfect 10, Inc. #654 Defendant Google Inc.'s Response to Plaintiff Perfect 10, Inc.'s Evidentiary Objections to the Reply Declaration of Rachel Herrick Kassabian in Support of Google Inc.'s Motion for a Document Preservation Order to Prevent Further Spoliation of Evidence by Perfect 10, Inc. filed by Counter Claimant Google Inc, Defendant Google Inc. (Attachments: #1 Supplemental Declaration of Rachel Herrick Kassabian in Support Thereof, and Exhibits A-J Thereto)(Kassabian, Rachel)

Perfect 10 Inc v. Google Inc et al

Doc. 728 Att. 1

QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP Michael T. Zeller Bar o. 196417) 2 3
mi chaelzel l er@quxnnemanuel . com 865 South Figueroa Street, 10th Floor Los Angeles, California 90017-2543 Telephone: [phone]

213 443-3100 4 Facsimile: Charles K. erhoeven (Bar No. 170151 } charle sverhoeven@quinnemanuel . com 5 50 California Street, 22nd Floor 6 San Francisco California 94111 Rachel Herrick Kassabian {Bar No. 191060) rachelkassabian quinnemanuel.com 7 555 Twin Dolphin rive, 5th Floor 8 Redwood Shores, California 94065
9 Attorneys for Defendant GOOGLE INC. 10 11 12 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CASE NO. CV 04-9484 AHM (SHx} Consolidated with Case No. CV 05^753 AHM {SHx)^ DISCOVERY MATTER Hon. Stephen J. Hillman SUPPLEMENTAL DECLARATION OF RACHEL HERRICK KASSASLAN IN SUPPORT OF GOOGLE INC.'S RESPONSE TO PERFECT 10 INC.' S EVIDENTIAI'tY OBJECTIONS TO THE REPLY DECLARATION OF RACHEL HERRICK KASSABIAN Date: January 15, 2010 Time: 10:00 a.m. Ctrm: 550 Discoverer Cut-off: None Set Pretrial Conference Date: None Set Trial Date: None Set

13 PERFECT 10, INC., a California corporation, 14 Plaintiff, 15
vs.

16

GOOGLE INC. a corporation; and DOES 1 throug^i 100, inclusive, 17 18 Defendants. 19 AND COUNTERCLAIM 20 21 PERFECT 10, INC., a California corporation,

22 ^ Plaints 23 vs. 24 AMAZON.COM, INC., a corporation; A9.COM, INC. a corporation; and 25 DOES 1 through 100, inclusive, 26 ^ Defendants. 27 28
01480 . 5 ] 32013280634.1

SUPPLEMENTAL DECLARATION OF RACHEL HERRICK KASSABIAN

Dockets.Justia.com

1 2

I, 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 Inc. 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 I! thereto. 7 2. Attached hereto as Exhibit A is a true and correct copy of excerpts of

8 ^ Google's First Set of Requests for the Production of Documents. 9 3. Attached hereto as Exhibit B is a true and correct copy of letters from

10 myself to Jeffrey Mausner dated January 29, 200 $ and March 18, 2008, respectively. 11 4. Attached hereto as Exhibit C is a true and correct copy of excerpts of my

12 Declaration dated May 6, 2009 ( Dkt. No. 408). 13 5. Attached hereto as Exhibit D is a true and correct copy of excerpts of the

14' Joint Stipulation on Google Inc.'s Motion to Compel Perfect 10 (1 } to Produce 15 Documents , {2) to Comply with the Protective Order, and (3) to Aff x Document 16 Control Numbers to its Document Production (Dkt. No. 40$). 17 6. Attached hereto as Exhibit E is a true and correct copy of excerpts of the

18 Court's Order dated October 6, 2009 (Dkt. No. 560). 19 7. Attached hereto as Exhibit F is a true and correct copy of a letter from

20 Mr. Mausner accompanying Perfect 10' s document production dated October 15, 21 2009. 22 8. Attached hereto as Exhibit G is a true and correct copy of excerpts of my

23 Declaration dated January 6, 2010 (Dkt. No. 701 }. 24 9. Attached hereto as Exhibit H is a true and correct copy of a letter from

25 ^ myself to Mr . Mausner dated November 4, 2009. 26 10. Attached hereto as Exhibit I is a true and correct copy of an email

27 exchange between myself, Mr. Mausner and others , beginning on November 4, 2009 28 and ending on January 5, 2010 . The email exchange concerns Google ' s efforts to
0198D .51320I328D634. [ ^ -_ -i-

SUPPLEMENTAL DECLARATION OF RACHEL HERRICK KASSABIAN

1 ^ further meet and confer with Perfect 10 regarding Perfect 10's incomplete production 2 of monthly financial reports. On page 3 of that email exchange, in my email to Mr. 3 I Mausner dated January 4, 2010, I specifically informed him that "[g]iven the 4 pendency of Google's document preservation motion and the upcoming hearing on 5 (I same, it is imperative that P 10 respond now" to my earlier meet and confer letters and 6 emails regarding the missing financial reports. To this date, Mr. Mausner has not 7 I sent me a responsive email or letter answering the specif c questions posed in my 8 prior meet and confer correspondence as to each of the missing financial reports. 9 11. Attached hereto as Exhibit J is a true and correct copy of excerpts of the

10 ^ transcript of the September 22, 2009 hearing before the Court. 11 12. On October 27, 2009, my colleague Michael Zeller sent a meet and

12 confer letter to Perfect 10 regarding issues that arose during the deposition of Nadine 13 Schoenweitz, which is attached to my January 6, 2010 Reply Declaration as Exhibit 14 B. Having not received any substantive response, Google sent follow-up 15 I communications to Perfect 10 on November 4, 16, and 24, and December 14 and I5. 16 Despite Google's efforts to resolve those issues informally, Perfect 10 repeatedly 17 refused to provide a substantive response to the questions posed in Google's letters 18 until nearly two months later, on December 22, 2009 {more than a week after Google 19 had already f led its motion for a document preservation order}. 20 I declare under penalty of perjury under the laws of the United States of

21 America that the foregoing is true and correct. Executed January 14, 2010 at Los 22 Angeles, California. 23 24 2S 26 27 2S
Q198D.51320/328^634.1 ..^^_

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Rachel Herrick Kassabian

SUPPLEMENTAL DECLARATION OF RACHEL HERRICK KASSABIAN

EXHIBIT A

1 2 3 4 5 6

'WINSTON & STRAWN LLP Andrew P. Bridges (SBN: 122761 Michael S. Brappby (SBN: 197940 Jennifer A. GoIinveaux (SBN: 20 056) 101 California Street , Suite 3900

San Francisco CA 94111-5894 Telephone: (^15} 591-1000 Facsimile: { 1S} 591-1400

E-mail: [e-mail], [e-mail], jgolinveaux @ winston.com Attorne^yys For Defendant and Counterclaimant

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GOOGLE INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

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PERFECT 10, INC., a California corporation, Plaintiff,
vs.

Case No. CV04-9484 NM (CWx} DEFENDANT GOOGLE INC.'S FIRST SET OF RE VESTS FOR PRODUCTION OF^OCUMENTS TO PLAINTIFF PERFECT I0, INC,

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GOOGLE INC. a corporation; and DOES 1 throug^i 100 , inclusive Defendant.

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20
vs.
21 22 23 24 25 26 27 2$

Counterclaimant,

PERFECT 10, INC., a California corporation, Counter-defendant.

PROPOUNDING PARTY: GOOGLE INC. RESPONDING PARTY; PERFECT 10, INC. SET NO.: ONE

DEFENDANT AND COUNTERCLAIMANT

PLAINTIFF AND COUNTER-DEFENDANT

GOOGLE INC.'S FIRST 5ET OF REQUEST FOR PRODUCTION OF DOCUMENTS TO PERFECT 10, INC.

Case No . CV04-9484 NM {CWx)

EXHIBIT

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1 2 3

68.

All documents concerning your efforts to increase the likelihood that

your websites will appear in search results, or will appear more prominently in search results, on Google or any other Internet search engine. 69. All documents referring to or discussing benefits to you of being listed

5 6 7 8 9

in, or being prominently listed in, search results by Google or any other Internet search engine. 70. All documents concerning your practices, policies, procedures,

intentions, plans, or actions regarding investigation and identification of, or prosecution of, claims against Stolen Content Websites far infringement of your alleged intellectual property. 71. All documents that evidence, refer to, or discuss any damages or harm,

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including, without limitation, monetary damage, you claim to have suffered, or to be likely to suffer, as a result of Googie's alleged infringements and violations as set forth in your amended complaint. 72. All documents concerning your policies regarding retention, storage,

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filing and destruction of documents and things. i

73.

All documents concerning indexes, lists or inventories of documents and
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18
19

things maintained by or for you.
Dated: March 3, 20p5

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21 22 23 24 25 26 27

Michael S. Bropby Jennifer A. Gofinveaux Attorneys for Defendant and Counterclaimant Google Inc.

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GOOGLE ING.'S F1RST SFT OF REQUEST FOR ^^.t^^TTON OF DOCUMENTS TO PERF);CT 14, MC. 11 Case Na. CV04-9484 NM (CWx}

EXHl6^^ _ PAGE ^,

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EXHIBIT B

quinn emanuei trial lawyers I S1IEGa s valley
555 'win Dolphin Drive, Suire 5^io, RetEwood Shares, California 94oG5 ^ TEL b5o-8or-5ooo pnx 65o-Sor-Sroo

WRiTER'5 DrR^cT D3a,L No. [phone]
WRITER'S INTERNET ADDRESS rachelherrick @ quinnemanuel.com

January 29, 2008
VIA E-1VIAIL FACSIMILE AND U.S. MAIL Jeffrey N. Mausner, Esq. Warner Center Towers

21$00 ^xnazd Street, Suite 910 Woodland Hills, CA 91367

Re: Perfect 10's Waiver of Actual Damages Dear Jeff Please accept this letter as Google's initiation of meet and confer efforts for Google's contemplated motion regarding Perfect 10's waiver of any claim for actual damages in this case. In responding to Google's first set of requests for production, Perfect I0 sought to avoid producing documents relevant to 27 of Google's requests by expressly electing not to seek actual damages for some or all of the claims in Perfect I0's complaint. For anise-month period,
Perfec# 10 disclaimed any intention to seek actual damages an its claims, impacting Google's potential liability and the scope of discovery in the case- Thereafter, Perfect I 0 purported to withdraw its express waiver of actual damages. However, Perfect 10's more recent discovery conduct has been consistent with its initial waiver. Accordingly, Googie intends to seek clarification from the Court regarding the legal significance of Perfect 1 D's actions.

In Perfect 10's Response to Google's First Set of Requests for Production dated April 15, 2005, Perfect 10 repeatedly asserted that it would not seek actual damages from Google. For instance, in response to Request Nos. 4, 8, 9, 38, 41, 43, 45, 46, 51, 52, 53, 55, 56, S7, 58, 59, 6I, 62, 66, 67, 68, 69, 70, 71, 72, and 73, Perfect 10 declared, "Perfect 10 is not seeking to recover its actual damages, but will seek statutory damages or profits of the infringer, and other available remedies." (Perfect 10's 4/18/OS Response to Google's First Requests far Production at 5-33 (emphasis added)}. Similarly, in response to Request No. 33, Perfect 10 objected to the

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relevance of the information sought "since Perfect 10 is seeking statutory damages or profzts of the infringer." (Id. at l 7). These 27 requests span a wide range of topics . They relate to Perfect 10's other efforts with respect to infringement of copyrights , trademarks , and rights of publicity; to Perfect 10's financial records; to other alleged violations of Perfect 10's supposed intellectual property rights; and to a variety of factors that might reduce the value of the copyrights, trademarks , and rights of publicity asserted by Perfect 10. As you know, Google subsequently moved to compel the production of documents responsive to the requests to which Perfect 10 had objected based in part upon a waiver of actual damages . During the meet and confer process and in the joint stipulation prepared on Gaogle's motion , Perfect 10 attempted to backtrack on its waiver of actual damages , representing instead that it had merely 'offered" to waive actual damages if Google would agree nit to press its motion with respect to the 27 requests in question . Absent such a concession from Google, Perfect 10 purported to withdraw its waiver of actual damages . (Joint Stipulation Re: Google's Marion to Compel, at 61-62}. In Google's reply, it rejected Perfect 10' s revisionist account of the discovery responses, informing Judge Hillman that "Plaintiff has clearly and unequivocally waived actual damages in its previous responses, without conditions, in an effort to avoid discovery ...." (Id. at 62). At the February 22, 2006 hearing on Google's motion to compel, Judge Hillman dzd nit rule an whether Perfect 10's discovery conduct had effectuated a waiver of its actual damages claim ( Transcript of 2122106 Hearing at 115-117), but at the November 27, 2007 hearing on Perfect 10's motion to compel , Judge Hillman directed that GaogIe had "better get Judge Matz's attention on this issue , because that does impact issues before me ." {Transcript of 11/27/07 Hearing at 34). At this point, na other motions or rulings have been made an the issue of Perfect 10's waiver of actual damages, and the issue is ripe for judicial resolution. Waiver is any "intentional relinquishment or abandonment of a known right ." Bickel v. City of Peidmont, 16 Cal. 4th 1040, 946 P.2d 427, 43I (1997}. Courts enforce any "knowing, intelligent , and voluntary waiver in circumstances where the [party] might reasonably anticipate same benefit or advantage ." Id., at 432. A party can waive a right or privilege through their responses to document requests . See, e.g., McCormick-Morgan, Inc. v. Teledyne Indus ., Inc., 765 F. Supp . 611, 613 (N.D. Cal . 1991) (enforcing explicit waiver of attorney-client privilege from statements in written response to document request); Chapman ex rel. Chapman v. Mutual Service Cas. Ins. Ca., 3S F. Supp. 2d 693, 696 {E.D. Wis. 1999) (indicating that litigant would not be allowed to later amend discovery responses to contest liability issues it had previously waived).
It is hard to imagine any mare " knowing , intelligent, and voluntary" relinquishment of a right or privilege than the 27 clear statements Perfect 10 made in its April I $, 2005 response. Perfect 10 repeatedly stated that it " is not seeking to recover its actual damages " and affirmed that it only "will seek statutory damages or pzafits of the infringer , and other available remedies ." {P10's 4/18/OS Response at 5-33} . Clearly, Perfect l0 "reasonably anticipate[d] some benefit or advantage" from the waiver because it made each assertion as an objection to the relevance of Google ' s discovery requests. (Id.}

Reasonable and detrimental reliance on a statement of waiver renders the waiver irrevocable based an policies of equitable estoppel . See Scott v. Fed. Life Ins. Co., 200 Ca1.App.2d 384, 391(Ca1.App.2d. Dist . 1962}. Google believes the Court will find that it 2 /1

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reasonably relied on Perfect 10's waiver and would be harmed if Perfect 10 now was allowed to revolve it. Hirst, Google's reliance on the truthfulness of signed discovery responses is reasonable. See Fed. R. Civ. P. 26(8)(1}(S). Second, Google had no reason to suspect that Perfect I O would abandon its waiver of actual damages. The first meaningful indication that Perfect I0 purportedly was only "offering" to waive actual damages came almost ten months after the waiver, in Perfect I0's responses in the February 12, 2006 joint stipulation. Third, Google suffered prejudice in that it was partially denied responsive discovery on 27 requests for production, was hampered in its motion to compel this production because its arguments based upon claims of actual damages were constrained by Perfect 10's shifting positions on the waiver issue, has been forced to litigate this protracted dispute even longer without discovery needed to better analyze a settlement, and did not seek additional discovery concerning actual damages during at least aten-month period of the lawsuit. Under these circumstances, Perfect 10's waiver should be construed as irrevocable. Additionally, Google believes Perfect 10 should be judicially estopped from now taking a new and clearly inconsistent position at a later stage in the litigation. yudicial estoppel "precludes a party from gaining an advantage by taking one position, and then seeking a second advantage by taking an incompatible position." Rissetto v. Plumbers and Steamfitters Loca1343, 94 F.3d 597, 600 (9th. Cir. 1996}. The doctrine may be applied even when a party, like Perfect 10, was not successful in asserting its first position "if by his change of position he is playing `fast and loose' with the court." 1'd. at 601. The nature of the adversary discovery system necessitates a policy that holds a litigant to the assertions it makes in sworn discovery responses. See Fed. R. Civ. P. 26(g)(1)(B). Perfect 10 made repeated and clear assertions in a signed discovery response that stood unchanged for nine months. Perfect 10 then resisted Google's motion to compel and agreed to produce only "summary" financial statements, which Google accepted without prejudice to revisiting the issue at a later date. (Transcript of 2122106 Hearing, at 116). Considering Perfect 10's many inconsistencies duriu^g the course of discovery, Google intends to ask the Court to enforce Perfect 10's waiver "to protect the integrity of the judicial process" from manipulation by Perfect 10. Rissetto, 94 F.3d at 60I. Please let us know if Perfect 10 will stipulate to its waiver of actual darnages. If Perfect 10 refuses to so stipulate, then it must agree to withdraw its objections to these 27 document requests , and all other requests relating to Perfect 10's alleged claim of actual damages, and comply with them in full (to the extent Perfect 10 has not done so already} by immediately producing all responsive documents . Set forth below are the requests at issue, along with an explanation regarding the deficient aspects of Perfect 10's production: Document Request No. 4 -All documen#s concerning your efforts to halt or reduce infringements of your copyrights.
Perfect 10 has only produced copies of the complaints from 21 of the 25 federal cases in which it is involved. The request is relevant to Perfect 10's purportedly reinstated claims fox actual damages. Perfect I O should produce all documents concerning its efforts to halt or reduce infringement of its copyrights, including without limitation the remaining four missing complaints and all cease and desist letters and DMCA notices regarding Perfect IO's copyrights.

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Document Request No. 8 -All documents concerning communication to persons or entities other than Google in which you have made allegations (against any person or entity) of copyright infringement, other than those documents sought in request number nine. The request is relevant to GoogIe's defense again Perfect 10's actual damages claims. Perfect 10 should produce these documents. Document Request No. 9 -All DMCA Notifications or claims of infringement that you have sent to persons or entities other than Google. This request was granted without.limitation by Judge Hillman. Perfect 10 has produced letters detailing claims of infringement sent to adultfriendfinder.com, Amazon.com, AOL, Ask.com, CCBill, Comcast, Earthlink, IceRoclcet, Infospace, Lycos, Mastercard, MSN, myfootballforum.cvm, Paypal, Verotel and Yahoo. Perfect 10 has also produced various DMCA notices. Please confirm that these are all the responsive documents in Perfect 10's possession or control relating to this request and that no documents were withheld based on Perfect 10's objections. if it is not, please supplement Perfect 10's production accordingly. Document Request No. 32 -All documents concerning efforts by you to halt or reduce infringements of your firademarks. This request was granted without linutation by Judge Hillman. Perfect 10 has produced copies of the complaints from 21 of the 25 federal cases in which it is involved, 570 trademark watch notices it received from Thompson, and 5 Cease and Desist letters concerning violations of its trademark rights by perfectl0escorts.com, Perfection Magazine, worldhaekers.cvm,
entangledweb.com, and crazypasses.cvm. Please coz^rzn that these are all the responsive documents ian. Perfect 10's possession or control relating to this request and that no documents were withheld based on Perfect 10's objections. If it is not, please supplement Perfect 10's production accordingly. Document Request No. 33 - All financial statements showing your expenditures on advertising and marketing activities in the United States concerning the marks PERFECT >EO and PERFECTI0.COM.

The request is unquestionably relevant to Perfect 10's actual damages claims. Perfect 10 nevertheless has only produced incomplete and redacted "summaries" of its balance sheet and income statements for the years 1997-2005. Perfect 10 should produce complete, detailed financial statements identifying expendituxes on advertising and marketing, and further should un-redact its existing production of brief summary financial statements. Document Request No. 38 -All financial statements evidencing revenues and expenses relating to your use of the marks PERFECT 10 and PERFECTZO.COM.
The request as well is plainly relevant to Perfect 10's actual damages claims. Perfect 10 has only produced incomplete and redacted "summaries" of its balance sheet and income statements for the years 1997-2005, however. Perfect 10 should produce complete, detailed financial statements showing revenues and expenses relating to its trademarks, and further should unredact its existing production of brief summary financial statements.

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Document Request No . 41-All documen# s concerning communications to persons of entities other than Google in which you have made allegations (against any person or entity} of trademark infringement. This request was granted with respect to documents also responsive to Request 32 by Judge Hillman. Perfect 10 has produced copies of the complaints from 21 of the 25 federal cases in which it is involved, 570 trademark watch notices it received from Thompson, and 5 Cease and Desist letters concerning violations of its trademark rights ^y perfectl0escorts.com, Perfection Magazine, worldhackers.com, entangledweb.eom, and crazypasses.com. Please confirm that these are all the responsive documents in Perfect 10's possession or control relating to this request anal that no documents were withheld based on Perfect 10's objections. If it is not, please supplement Perfect 10's production accordingly. Document Request No. X13 -All documents concerning your efforts to protest or prevent infringement ar violation of any of the publicity rights claimed by you in this action. Perfect 10 has only produced copies of the complaints from 21 of the 2S federal cases in which it is involved. The request is relevant to Perfect 10's actual damages claims . Perfect i 0 should produce all documents concerning its efforts to halt or reduce infringement of the publicity rights at issue. Doeuxnent Request No. 45 ^- All documents concerning photographs, published in publications or media not owned or controlled by you, of models who have appeared in your magazine or web sites. Perfect 10 has only produced copies of five images from Stuff, Victoria's Secret and Shape. The request is relevant to Perfect 10's purportedly reinstated claims far actual damages. Perfect 10 should produce all documents concerning photographs of models published in other publications or media. Document Request No. 46 -All documents concerning authorization or permission by you for other publications or media, not owned or controlled by you, to display names or photographs of persons whose names or photographs have appeared in your magazine or web sites. This request was granted without limitation by Judge Hillman. Perfect 10 has produced agreements with JRM, HDNet, Fonestarz, Ef, Battle Dome, Blind Date, Cliffwood Pictures, Columbia Pictures, K-1, Livin Large, MTV, Nash Entertainment, N$C, P1anetRapido.com, Right Angle Media, Sony Pictures, Sopranos Productions, White Chicks Productions, and Woody Fraser Productions. Please confum that these are all the responsive documents in Perfect 10's possession or control relating to this request and that no documents were withheld based on Perfect 10's objections. If it is not, please supplement Perfect 10's production accordingly.
Document Request No. Sl - A!l documents concerning communications to persons or enfities other than Google in which you have made allegations (against any person or entity) of violations of rights of publicity owned or exercised by you.

The request is relevant to Perfect 10's purportedly reinstated claims for actual damages. Perfect 10 should produce these documents.

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Document Request No. 52 - All documents concerning efforts by you to halt or reduce violations of publicity rights owned or exercised by you. Judge Hillman deferred the request and, instead, directed Perfect 10 to identify any suits involving rights of publicity in which it was a plaintiff or defendant. The request is relevant to Perfect 10's purportedly reinstated claims for actual damages. Perfect 10 should produce these documents. Document Request No. 59 -All documents concerning any communications by any person regarding Google or this lawsuit. The request is relevant to Perfect 10's purportedly reinstated claims for actual damages. Perfect 10 should be ordered to produce these documents.
Document Request No. 66 -All documents Tided with a court, served upon an opposing party or counsel, or received from an opposing party or counsel , in copyright, trademark, publicity righ#s, or unfair competition litigation to which you have been a party.

Perfect 10 has only produced copies of the complaints from 21 of the 25 federal cases in which it is involved. Perfect 10 should produce alI documents from its other Itigation on claims similar to those asserted against Google. Document Request No. 71 -All documents that evidence , refer to, or discuss any damages ar harm, including, without limitation, monetary damage , you claim to have suffered, or to be likely to suffer, as a result of Google's alleged infringements and violations set forth in your amended complaint. In response to this request, Perfect 10 has only produced incomplete and redacted "summaries" of its balance sheet and income statements for the years 1997-2005. Perfect 10 should produce all documents that evidence, refer to yr discuss the harm it has allegedly suffered by the actions of Google described in Perfect I0's amended complaint, and fiufiher, should complete and unredact its existing production of brief suzrzznary fiu^ancial statements.
Document Request No. 81-Your complete tax and accounting books and full corporate earnings reports, including revenues , costs , and profits reported to national or state taz authorities. In response to this request, Perfect 10 has only produced incomplete and redacted "summaries" of its balance sheet and income statements for the years 1997-2005. Under this request and Requests Nos. 33, 3$ and 71, Perfect 10 has a clear obligation to produce accounting records in light of its purportedly reinstated claim for actual damages. Additionally, PlaintifFs federal and state tax returns are plainly discoverable in this case, in light of the damages Plaintiff seeks (including its purportedly reinstated claim for actual damages and lost profits), and the unavailability of the information from ether sources previously disclosed. See, e.g., Gattegno v. PricewaterhouseCoopers, LLP, 205 F.R.D. 70, 73 (D. Conn. 2001}. Google cannot assess or defend against Perfect 10's purportedly reinstated claim for actual damages without Perfect i 0's full and complete disclosure of its revenues and expenses, profits and losses, asset valuations, tax liabilities, accounting methods and other pertinent information that would be contained in these documents.

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Document Request No . $7 -All documents concerning projection of sales, revenue, or profits for each of your con#emplated or launched products or services. While Perfect 10 has acknowledged the clear relevance of these documents by agreeing to produce them, to the best of Google's lmowledge, Perfect 10 has not yet done so. Please produce all relevant and responsive documents immediately.
Document Request No. 94 - Documents sufficient to identify your profits froze each of your products and services , ' ndividual and by category, both by year and by the most i disaggregate level avaifabie.

Perfect 10 has only produced incomplete and redacted "summaries" of its balance sheet and income statements for the years 1997-2005. Under this request and Requests Nos. 33, 38, 71 and 81, Perfect 10 has a clear obligation to produce accounting records in light of its purportedly reinstated claim for actual damages. Goggle cannot assess or defend against Ferfect l0's purportedly reinstated claim for actual damages without full disclosure of Perfect 10's profits (or losses) from each of its products and services. Perfect 10 should produce these documents immediately. Document Request No . 95 -Documents sufficient to identify your ZS largest customers each month in relation to each of your products or services.
Perfect 10 has refused to produce any documents in response to this request, despite its plain relevance to Perfect 10's purportedly reinstated claims for actual damages. Perfect 10's relationships with its largest customers are at issue here, given Perfect 10's purported reinstatement of its claim for actual damages. Perfect 10 should produce these documents immediately.

Document Request No. 99 - Ail documents concerning tl^e number ar frequency of visits to each of your Web pages by customers wvho have paid a fee to enter the site.
In response to this request, Perfect l0 has producedthousand-page-long text files listing IP addresses and pages viewed in the website. Perfect 10 has also expressly agreed'to produce customer sign-up information from its third-parry processor. In order far Google to assess and defend Perfect 10's purportedly reinstated claim for actual damages, Perfect I0 must, at a minimum , produce the customer sign-up information from Perfect l0's third-party processor, including the usernames that correspond to the IP addresses identified in the previously-produced text files. Please supplement Perfect i 0's production immediately. Document Request No. 104 - AlI documents reflecting or evidencing the fact alleged in paragraph 11 of the amended complaint that your Web site receives approximately 100,000 unique visitors per month, including all documents concerning hove you determine that a visitor is unique. To date, Perfect 10 has only produced thousand-page long text f les listing IP addresses and pages viewed in the website. These logs do not demonstrate how Perfect 10 determines that a given visitor is unique, nor da they include customer usernames. Please supplement Perfect 10's production immediately.

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Document Request Na . 105 - Atl documents reflecting or evidencing the fact alleged in paragraph 14 of the amended complaint that you have spent millions of dollars advertising and promoting your marks and your products and services , and all documents showing the amounts you earmarked or spent to advertise and promote marks and the amounts you earmarked or spent to advertise and promote products and services. Perfect I O has only produced incomplete and redacted "summaries" of its balance sheet and income statements for the years 1997-2005. Under this request and Requests Nos. 33, 38, 71, and S 1, Perfect 10 has a clear obligation to produce accounting records in light of its purportedly reinstated claim for actual damages. Google cannot assess or defend Perfect 10's purportedly reinstated claim for actual damages without full disclosure of Perfect 10's trademark advertising and promotion expenses, including any advertising forecasts, plans, reports and the like. Please supplement Perfect I O's production accordingly,
Document Request No. 14$ -All documents reflecting or evidencing the fact alleged in paragraph 17 of the amended complaint that the described infringement is "devastating to" and "threatens the existence af" your business, including all documents with financial data demonstrating this effect.

Perfect 10 has only agreed to produce incomplete and redacted "summaries " of its balance sheet and income statements far the years 1997-2005 and records of Internet searches conducted by Dr. Zada. While Perfect 10 has produced these documents, they are woefully insufficient far Google's need to accurately assess and defend Perfect I0's purportedly reinstated claim for actual damages. Google needs all documents responsive to this request. Please supplement Perfect I0's production accordingly. Document Request No. 109 -All documents reflecting ar evidencing the fact aIIeged in paragraph 47 of your answer fo Google's counterclaims that the revenues you received resulting from searches on Google are substantially less thaw they should be. Perfect 10 has only agreed to produce incomplete and redacted " summaries " of its balance sheet and income statements for the years 1997-2005 and records of Internet searches conducted by Dr. Zada. These documents are insufficient and only marginally responsive. Google needs all documents responsive to this request. Please supplement Perfect 10's production accordingly. Document Request No . 110 -All documents reflecting or evidencing the fact alleged in paragraph 47 of your answver to Gaogle ' s caun#erclaims that the damages caused by activities alleged in the amended complaint far exceed any benefit to you from Google. Perfect 10 has only agreed to produce incomplete and redacted "summaries " of its balance sheet and income statements for the years I997-2005 and records?of Internet seazches conducted by Dr. Zada. These documents are insufficient and only marginally responsive. Google needs ail documents responsive to this request. Please supplement Ferfect I0's production accoxdingly.

S ^^^^^^^

FARE

^^

Document Request No . 1.11. -All docu^nen#s reflecting or evidencing the fact alleged in paragraph 11 of the declaration of Norman Zada in support of the motion for preliminary injunction (" Zada Declaration ") that you invested aver $36 million to develop a respected brand and goodwill and alI documents showing what expenditures are included in this figure, including expenditures other than the $12 million xelated to photographs described in that paragraph. Perfect 10 has only produced incomplete and redacted "summaries" of its balance sheet and income statements far the years 1997-2005. Perfect 10 loos a clear obligation to produce detailed accounting records in light of its purportedly reinstated claim far actual damages. GoogIe cannot assess or defend Perfect 10's purportedly reinstated claim for actual damages without full disclosure of Perfect 10's brandings efforts and expenditures, including but not limited to trademark advertising and promotion expenses, advertising forecasts, plans, reports, market studies, valuations and the like. Please supplement Perfect 10's production accordingly. Document Request No. 112 - All documents concerning revenues received by you from movies, television, and videos as described in paragraphs 12 to 14 of the Zada Declaration. Perfect 10 has only produced incomplete and redacted "summaries" of its balance sheet and income statements for the years 1,997-2005, Wane of which identify the requested information. Perfect 10 has a clear obligation to produce this type of detailed revenue data in light of its purportedly reinstated claim for actual damages. GoogIe cannot assessor defend Perfect J O's purportedly reinstated claim far actual damages without full disclosure of the requested information. Perfect 10 should produce responsive documents immediately. In sum, Perfect 10's refusal to produce all documents relevant to its purportedly reinstated claim for actual damages, even after its purported reinstatement effort, plainly belies that effort. Perfect 10 cannot have it both ways. It must either acknowledge its waiver of actual damages, or honor its discovery obligations thereon and produce all responsive documents in the aboveidentified categories. This letter is a request for apre-motion meeting of counsel to discuss this matter pursuant to Local Rule 7-3. If we are not able to resolve the matter through meet and confer efforts, Google will need to seek the Court's attention through motion practice as directed by Judge Hillman. Please contact me as soon as passible regarding your availability far the conference. Very truly yours,

^m.^^
Rachel M. Herrick
RMH: ar 51320/2353679.1

^^^^

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quinn emanuei uia^ lawye rs i silicon Yalleyl
555 Twin Dolphin Drive, Suice gbo, Redwood Shares, California ^^}065 ^ TEL Gf0-EO1-5000 FAX G50-COI-5100

March 1 S, 2008
VIA E-MAIL & U.S. MAIL

Jeffrey N. Mausner 'Warner Center Towers 21804 Oxnard Street, Suite 910 Woodland Hills, CA 91367 815-716 -2773 - facsimile Re: Perfect 10's Deficient Document Production Related to Actual Dalxla es

Dear Jeff: 1 write to address several deficiencies in Perfect 10's production of documents in response to my letter of January 29, 2008, which addressed Gaogle's document requests relevant to Perfect 10's claim, if any, of actual damages. 1. Financial Rep©rts and Tax Returns

First, the bulk of Perfect 10's recent production consists of "Financial Reports" &am Perfect 10. Some of these Reports have been produced either as email attachments or on CD. These appear to be monthly reports, but the Reports for the following months are missing:

· · · · · · ·
· ·

Prior to 1997: All months For 1997: January through and including July, September, and October For 1998: November For 1999: April through and including November For 2000: All months except March For 2001: January through and including May Far 2002: February, June, July, August, and October
For 2003: June and August For 2004: March and April

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Fox 2005: February For 2006: ranuary and February For 2007: February, May, Tune, August, October, and November

Please produce the missing reports . Please also produce Perfect 10's complete and unredacted tax return for 2007, with all schedules attached. Second, most of the Financial Statements produced include the following disclaimer: Management has elected to omit substantially ail of the disclosures and the statement of cash flows as required by generally accepted accounting principles. If the omitted disclosures were included in the financial statement, they might influence the user`s conclusions about your financial position. Accordingly, this financial statement is not designed for those who are not so informed. This disclaimer renders these Statements not fully responsive to Google's Requests for Production related to actual damages. Please produce all documents reflecting "all of the disclosures and the statement of cash flows as required by generally accepted accounting principles" pertaining to each Financial Statement Perfect 10 produced. Third, as you lmow, a great deal of information in both the Financial Statements and in the Tax Returns has been redacted. In your email of March 3, 2008, you explained that the "redacted portions related to either 1) confidential settlements in other lawsuits, or 2} items that do not have anything to do with the actual damages claim." These are not proper bases for redactions. Further, these redactions include categories of inforrn.ation that are highly relevant to Perfect i 0's claim of actual damages, including "fixed assets,° "total long-term liabilities," all information regarding Perfect 10's "Equity" holdings (including capital stock, retained earnings, and net equity), "total liabilities and equity," "Net Ordinary Tncome" and "Net Income." Because this information is relevant to Perfect 10, Inc .'s assets, liabilities, and revenues, and thus to any claims for actual damages , please unredact all of the Financial Statements and Tax Returns. To the extent Perfect 10 is concerned about maintaining the confidentiality of this information, the Protective Order currently in place in this action will be more than sufficient to protect these materials. See Kansas Food Packers v. Corpak, 2000 WL 33170870, at * 1 n.4 (D. Kan. Qct. 12, 2000) {ordering production of redacted material in financial statements when the redacted information was relevant and when there was a "protective order ... in place which protects confidential client information in th[e) case" ). Because Perfect 10 has designated all of these documents as Highly Confidential under the Protective Order, these materials should be unredacted and produced without further delay.
2. Server Lags

As we identified via email to you and to your associate, David Title, we have located in Perfect 10's producrion a folder tit^.ed "server logs," which contains several, documents that appear to be many thousands of pages of raw r3ata. You indicated in our teleconference of February 22, 2008 that these documents are responsive tl^ Goagle's Requests For Production Nas. 98-102. However, Perfect 10's production only includes "si^rver logs" for the years 2003, 2005, and 2006. Please confirm that Perfect
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l4's production of server lags far 2003, 2005, and 2006 is complete, and please produce server logs for 2004, 2007, and any other years for which server logs exist, going back to the launching of perfectl0.com. Additionally, during that same teleconference of February 22, 2008, Dr. Zada indicated that he would search for, and that Perfect 10 would produce, a software program used by Perfect 14 to analyze log data for certain password-related activities by perfectl0.com users. Please also produce that program. You also identified in an email following our call, also sent on February 22, 200$, a subfolder on the hard drive Perfect 10 produced containing "reports ... regarding unauthorized use of passwords. There is a subfolder on that hard drive titled "password reports," and this subfolder contains excel spreadsheets purporting to reflect, in part, "accesses per username" for usernames generating at Ieast 5,000 visits in one day for the time periods of January l 6, 2042 through December 16, 2042, January
8, 2403 through August 5, 2003, all of 2004, and all of 2005. Please confirm that this is the portion of the hard drive you referenced on that call. Please also produce spreadsheets purporting to record this information for all other relevant time periods, from the launch of perfectl0.com to the present. The subfolder additionally contains two text files titled "f83.txt" and f83 all.txt, both of which appear to be massive listings of various Internet user names in no particular order. Moreover, the subfolder contains a large number of .gif and .html files that appear to reflect various web server statistics in various tables, graphs, pie charts, and the like. All of these documents are not organized in any logical way and are otherwise nit useful in their current form. Please state whether Perfect 10 claims these documents are responsive to Google's Requests Nos. 98-102, and if sa, please explain how they are relevant to those Requests. Please also explain how those documents are organized, if at all.

Please also produce any other documents relevant to any alleged unauthorized access to perfectl0.cam by Perfect 10 users, and if no further documents exist, please confirm that Perfect 10's production is complete. Please also produce any documents relevant to any alleged direct infringement of Perfect 10's copyrights (including copying or downloading of Perfect 10 images) by any user who visited perfectl0.com, as perfect 10 has produced no such evidence to date. Further, in Perfect 10's responses to Google's Requests for Production Nos. 98-142, Perfect 10 indicated that it would also produce "sign-up information from the third-party processor for perfectl0.cvm." We have been unable to locate any such documents in Perfect 10's production . Please produce those documents. 3. Documents Related to FoneStarz Media Limited (" FoneStasz ") and Other Licensees

Several of Google's document requests, including Requests for Production Nos. 134 and 138-146, called for documents related to alleged licensing of Perfect 10 materials to companies including, but not limited to, FoneStarz Media Limited. Perfect 10 has produced a hard drive containing a subfolder titled "fanestarz." That subfolder contains invoices, purchases orders, and other statements of sales info, virtually all of which are from 2005. Additionally, there is an unsigned agreement between FoneStarL and Perfect 10, also on that hard drive, under the "agreements" subfolder.

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On February 29, 2008, we submitted a request to your associate, David Title, seeking either (1} confirmation that this is the total of Perfect 10's production responsive to these requests, or (2} direction the remainder of the responsive documents (if any} in Perfect 10's production. Please respond to these questions. if Perfect 10's production of documents responsive to those requests is incomplete, please collect and produce all remaining documents, including but not limited to all invoices, purchase orders, statements, contracts (including executed copies thereof, if any}, correspondence, termination or cancellation documents, and the like. 4. Perfect 10's Improper Reliance o^n Limitations in Judge Hillman 's Order of lV,[ay 1.9, 2x06

Tn your email of February 21, 200$, you stated that "Perfect 10 will not withhold any documents or categories of documents specifically requested in the January 291etter, except for ... requests that were modified or deferred by Judge Hillman in his Order of May 19, 2006." We understand this to mean that, fox Requests that Judge Hillman modified in that Order, Perfect 10 will comply only to the Requests as modified, and for any Requests deferred in that Order, Perfect 10 will not comply at all. As we explained in our January 29, 2008 letter, and in a subsequent email of February 25, 2008, these proposed limitations are improper. Judge Hillman issued the May 19, 2006 Order amidst confusion over whether Perfect 10 had waived its claim to actual damages. Perfect 10's waiver, and it subsequent attempted revocation of that waiver, muddied the waters such that any limitations the Court may have imposed were done in the context of Perfect 10's equivocation. Indeed, as was abundantly clear at the November 27, 2007 hearing, Judge Hillman remains unsure whether Perfect 10 has waived actual damages. Thus, the only reasonable course of action is to return to Google's Requests for Production as originally written. Moreover, even if the limitations in the May 2006 Order were not so tainted, the Court made clear that its orders were made without prejudice to Google's right to revisit them in the future. Please be advised that we are doing so now, Until Perfect 10 complies in full with its discovery obligations related to actual damages by producing all documents related thereto (including but not limited to all items addressed in my January 29 letter, to which Perfect 10 still has not fully responded, and all items addressed in this Ietter), Google's position regarding Perfect 10's waiver of actual damages must remain unchanged. Please respond to these letters without delay, and complete Perfect 10's production as requested, by producing all documents responsive to Google's requests for production as originally drafted, without limitation or qualification. Please note that our review of Perfect 10's production is ongoing. To the extent we identify additional deficiencies in Perfect i 0's production, we will bung those matters to your attention at a later date. Sincerely, /^ ^^^ ^'!^ Rachel M. Herrick RMH:TDN
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EXHIBIT C

2:04-cv-09484-AHM-SH

Document 408-3

PilecE 05/07/2009

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1 2 3 4 5 6 7 8

QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP Michael T. Zeller Bar o. 196417} [e-mail] 865 South Figueroa Street, 10th Floor Los Angeles, California 90017-2543 Telephone : [phone] Facsimile : 213 443-3100 Charles K. erhoeven.{Bar Na. 170151) charlesverhoeven @qumnemanuel.com 50 California Street, 22nd Floor San Franciscor California 94111 Rachel Herrick Kassabian (Bar No. 191060) rachelkassabian quinnemanuel.com 555 Twin Dolphin rive, Suite 560 Redwood Shores, California 94065-213

9 Attorneys for Defendant Goagle Inc. 10 11 12', 13 14 15 vs. 16 GOGGLE INC. a corporation; and 17 DOES 1 through 100, inclusive, 18 19 Defendants. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA PERFECT 10, 1NC., a California corporation, CASE NO. CV 04-9484 AHM (SHx} Consolidated with Case No. CV 05753 AHM {SHx}] DECLARATION OF RACHEL HERRICK KASSABIAN IN SUPPORT OF GOGGLE INC.'S MOTION TO COMPEL PERFECT 10 (1} TO PRODUCE DO UMENTS, ^ TO COMPLY WITH PROTEC 'T'IVE ORDER, AND 3) TO AFFIX DOCUMENT ^ONTROL NUMBERS TO ITS DOCUMENT PRODUCTION Han. Stephen J. Hillman Courtroom.: Hearing Date : Hearing Time : 550 June 1, 2009 2:00 pm

Plaintiff,

AND COUNTERCLAIM
20 21 22 23 vs. PERFECT 10, INC., a California corporation, Plaintiff,

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

Discovery Cutoff: None Set r Pretrial Conference Date: None Set Trial Date : None Set PUBLIC REDACTED

26
27
5132012919040.1 2

Defendants.

Case No. CV 04-9484 AHM (SHx) [Consolidated with Case No . CV OS-4753 AHM SHx) DECLARA'rI0?J OF RACHEL HERRTCK KASSABIAN

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1 alternatively proposed that Perfect 10 re-produce its electronic documents on two

2 separate hard drives, one containing only conf dential materials, and the other
3 containing only public materials. As yet another alternative, Goagle proposed that 4 Perfect 10 provide a list of all of the documents it has produced, and state whether 5 each document contains conf dential material. Perfect 10 did not agree to either 6 proposal. 7 49. Google met-and-conferred with Perfect 10 regarding Perfect 10's

improper designation as "Confidential" of the six charts produced in response to

9 Google's Interrogatory No. 3, including an October 15, 2008 telephonic conference

1a

of counsel and various written correspondence. Perfect 10 took the position that,

lI although the charts contained only public information, the particular compilation of

12 public information rendered the charts conf dential. In the course of meet-and13 '' confer efforts, Perfect 10 also proposed that Perfect 10 would agree to allow Google

14 to publicly file the charts (and alleged notices of infringement), if Google would
15 agree not to "post them on Chilling Effects or similar websites."

16

S0.

Google has met-and-conferred with Perfect 10 regarding its failure to

17 affix unique control numbers to its electronic document productions at various 18 times, including most recently in written correspondence on multiple dates in 19 October 200$, and at a telephonic conference of counsel of October 21, 200$. 20 Perfect 10 refused to agree to affix control numbers to its document productions. 21
S 1. Google met-and-conferred with Perfect 10 regarding Perfect 10's

22 f deficient production of financial documents relevant to its claim for actual damages

23 ^ at various times, including during telephonic conferences of counsel and various
24 written correspondence. Perfect 10 subsequently produced tax returns and certain 2S monthly summary financial reports, but that production was incomplete in various 26 respects. Perfect 10 has not corrected those deficiencies. For instance, Perfect 10 27 has not produced various missing fnancial reports, has not confirmed what
S 1320!2919040. I 28

Case No. CV 04-9484 AHM (SHx) [Consolidated with Case No. CV OS-4753 AHM (SHx)I DECLARATION OF lCACHEL HERRICK KASSABIAN

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1 happened (if anything} to those missing reports, and has not produced the documents 2 'underlying the summary reports. Additionally, the summary financial reports and 3 ^ tax returns Perfect 10 has produced are, in most cases, substantially redacted. 4 52. Google met-and-conferred with Perfect 10 regarding Perfect 10's

5 production of "server log" f les, including telephonic conferences of counsel and 6 various written correspondence. During Google's review of Perfect 10's production, 7 we located what appear to be "server log" files only for the years 2003, 2005, 2006, S 2007, and portions of 2008. Perfect 10 has not identified any other "server logs" in 9 the documents it produced to Google, nor has it produced other "server log" flles. 10 53. Google met-and-conferred with Perfect 10 regarding Perfect 10's

11 production of password usage reports, including telephonic conferences and various 12 written correspondence. During Google's review of Perfect 10's production, we 13 located password usage reports for the time periods January 16, 2002 through 14 December 16, 2002, January $, 2003 through August 5, 2003, all of 2004, and all of 1S 2005, and large numbers of other files, all contained in the "passwords reports" file 16 folder on the hard drive Perfect 10 produced for inspection and copying on April 18, 17 2006. Regarding the password usage reports, Perfect 10 has not produced any 18 additional such documents. Regarding the many other documents in the "passwords 19 reports" file folder, counsel for Google asked counsel for Perfect 10, both in writing 20 and telephonically, to state whether these documents are responsive to Google's 21 Requests for Production Nos. 98-102, and explain how the documents were

22
23

organized. Perfect 10 has not responded to either question. 54. Google met-and-conferred with Perfect 10 regarding Perfect 10's failure

24 to produce a copy of the software program Perfect 10 uses to understand its server 25 logs, including telephonic conferences and extensive written correspondence. Qn

26 February 22 , 2008 , Google and Perfect 10 met and conferred telephonically
27 regarding Perfect 10's deficient responses to Google ' s Requests for Production Nos.
513Z01Z919040. I 28

Case No. CV 04-9484 AHM (SHx} [Consolidated with Case No. CV OS-4753 AHM fSHx)i DECLARATION CAF RACHEL HERRICK KASSABIAN^^^^ 6 ^^,^

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1 sub-folders. In most instances, Perfect 10 has produced .pdf files of alleged
2 registration certifications, and has produced alleged deposit materials in the form of 3 separate free-standing image files (typically in .JPEG format), organized into file 4 folders labeled with either an alleged copyright registration number, or a verbal 5 description of the alleged registration. Google has repeatedly requested to inspect 6 the original copies of Perfect 10's alleged registration deposit materials allegedly 7 sent the Copyright Off ce. To date, Perfect 10 has refused Google's request. 8 60. On October 24, 2008 (by letter) and November 6, 2008 (by telephone},

9 counsel for Google and counsel for Perfect 10 met and conferred regarding Perfect 10 10's def dent responses to Google's 6th and 7th Sets of Requests for Production. 11 Among other issues, the parties discussed Perfect 10's improper objections to these 12 responses. To date, Perfect 10 has refused to produce a chart of alleged 13 'infringements and related documents to Google-documents that would be 14 responsive to Request for Production Nos. 190 and 191. 1S I declare under penalty of perjury under the laws of the United States of

16^ America that the foregoing is true and correct. Executed May 6, 2009 at Redwood
17 Shores, California. 18 19 20 21 22 23 24 25 26 27
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N l ^CAOxiJE^ SEL LISTINC`x ON FOLLOWING 2 3 4 5 d' 7'. 8 9 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CASE NO. CV 04-9484 AHM ^SH^) C onso lid ate d w ith C ase No. C 0 5753 AHM (SHx)] DISCOVERY MATTER JOINT STIPULATION ON GOGGLE INC.'S MOTXON TO COMPEL PERFECT 10 ( 2 TO PRODUCE DOCUMEN`I^S) ^2 TO COMPLY WITH PROTEG; I^E D OCiJ ENT^ (I NTROL I^ IV'UMBERS TO XTS DOCUMENT PRODUCTION Hon. Stephen J. Hillman Plaintiff, vs. Date: June l 2009 Time: 2:40 P^VI
Crtrm.: SSO

10 PERFECT 10, INC., a California corporati on , I1 Plaintiff, 12'',
V5.

13^'

GOGGLE 1NC. a corporation ; and 14 DOES I throug^ 100, inclusive, 15 16i
17i 18' corporation, l9

Defendants . AND COUNTERCLAIM PERFECT 10, INC., a California

20 21

AMAZON.COM, INC., a corporation; A9.COM, INC. a corporation; and 22 DOES 1 through 100, inclusive,
23 24 25 '. 2d' 27 28

Discover Cutoff None Set y Pretrial Conference Date : None Set Trial Date; None Set PUBLIC REDACTED

Defendants.

Case No. CV 04-9484 AHM (5Hx] [Consolidated I with Case No. CV OS-4753 AHM SHx JQINT STIPULATION ON GOOGLE'S MOTION TO COMPIrL ^^^^^^

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1 'reports Perfect 10 has produced to Google are certain monthly financial statements, 2 Perfect 1 Q has refused to produce -- or explain its reasons for not producing -- over 3 four years' worth of these monthly 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 are directly 6 contradicted by its claim far monetary damages and the terms of the Protective 7 Order in this case. Third, the financial statements that Perfect 10 has produced are S summaries of Perfect 1 D's financial condition, necessarily based an other financial 9 documents that Google must have to assess Perfect 10's claimed damages. Perfect 10 10 has no basis for withholding these source documents. Perfect 10 should be I1 compelled to produce complete and unredacted copies of its tax returns, monthly 12 financial statements and other supporting dacurnents related to the information I3 summarized in thane monthly financial statements. I4 15 1G
^. Perfect 14 Has Failed To Produce Financial Re ©rts Caverin^ Many Months

Perfect 10's production of financial documents consists of select monthly However, there are at least 51 such

17 financial statements dating back to 199?.

I$ monthly financial statements that are still missing from Perfect 10's production. See I9 Kassabzan Decl. ^ S1, and at Exs. HH & II. Specifically, Perfect IO has produced no 20 monthly financial statements for the following rrlonths: 21 22 23 1998 1997 January, February, March, April, May, June, July, September and October November April, May, June, July, August, September, October and November January, February, April, May, 3^une, July, August, September, October, November and December January, February, March, April and May
Case No . CV 04-9484 AHM (SHx} [ Consolidated with Case No, CV 05753 AFIM SHx 7DINT STIPULATION ON GOOGLE'S MOTION TO COMPEL _2S_

24 1999 25 204Q 26 27 2001 28
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1 2002 2 2fl03 3 2004 4 2005 5 2006 6 2007 7 200$ 8 9 IO

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

During the meet and confer process, Perfect 10 refused to 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. For example, if Perfect 10 destroyed the 13 financial records just prior to or during this litigation, then Gaogle is entitled to 14 ,pursue spoliation sanctions against Perfect 10, and to ask the Court to strike Perfect 1S 10's claims of infringement andlox for damages (to the extent Perfect l0 has not 16 waived them already}. Perfect 10 should be ordered to produce these documents 17 'without fizrther 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 documents 19 that clearly existed at one point in time. See Buchanan, 206 F.R.D. 123, 125 (D. 20 Md. 2002); Rockwell Int'1 Corp. v. H. Wolfe Iron & 1yletal Co., 576 F.Supp. 511, 21 S I2 (W.D. Pa. 1983}; Fed. R. Civ. P. 34(a}. 22 3. Perfect 14's Prodnctian Contains Im ro er Redactions 23 Many of the f nancial statements anal tax returns that Perfect 10 did produce 24 are heavily redacted, rendering them useless in assessing Perfect 10's ^naracial 25 condition. Fvr instance, Perfect l0 llas redacted categaxies of information highly 26 relevant to Perfect 10's claims of damages, 27 ' 281
Case No . CV Q4-9G84 AHM (SHx) [Consolidated with Case No. CV d5,V4753._..,_ (SHx)^ , V r, .- __., AHM ^" 30IN7'ST]P[JI.A7'IOIV Ol^ GOOGC.E'SO'r[ON TQ^^C o MPE^^^---^_r M ^ ^ GA^d^^^ _2^_

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I
3

After this Court ruled that Perfect 14 was only required to produce suinznary

2 financial documents, Perfect IQ and Google entered into an agreement that Perfect
I O would provide various financial documents and Google would agree that Perfect

4 I O had not waived its right to sue for actual damages. In reliance an that agreement, 5 Perfect 10 produced highly confidential financial documents. Now, Google is 6 seeking to have it both ways -Google gets financial documents that are only 7 relevant to the issue of actual damages, and Google still will not unequivocally 8 II admit that there was no waiver. 9. .A.t a barebones minimum, Google should not be allowed to proceed with this

10 completely unnecessary motion unless it at least agrees to live up to its part of the II bargain. i21 Google also misrepresents the scope of the dispute over "financial

l3 documents." This issue solely relates to the issue of actual damages -- the position I4 Google took during the meet and confer process. In fact, Google describes the 15 dispute as "Perfect I O's deficient production-af documents related to actual 16 damages." (Kincaid Decl., ¶4, Exh. 3; email to Valerie Kincaid from Thomas 17 Nolan, dated October I7, 2008.} 1S Next, Google misrepresents that Perfect 10 has failed to produce financial

I9 documents covering "many months." During the meet and confer process, Perfect 20 I O repeatedly told Google that records don't exist for certain months, and Google 2I has misrepresented that Perfect 10 instead has the records, but refuses to produce 22 I them. 23
Finally, Google argues that Perfect 10 should be required to produce^various

24 unidentified documents that will provide Google with a complete picture of Perfect 25 10's financial condition, Google refuses to accept that Perfect I O is not a publicly 26 traded company and thus cannot provide it with the type of fnancial documents it 27 wants -they simply don't exist. 28
Case AIo, CV 44-9484 AHM (SHx} [Consolidated with Case Na . CV OS-4753 AtfM (5Fix) .fiolNT STIPULATION ON GOOGLE'$ MOTIOi1 TO COMPEL _^^_

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1 2

PERFECT l.U'S CONC^.,^CJS)ION Far the reasons set fo>E-fh above, Croogle's motion should be denied in its

3 entirety. Gaogle should be ordered to reimburse Perx'ect 10 for the fees it has been 4 forced to incur in opposing an unnecessary motion. 5 6 DATED: lVlay 6, 2049 7 8 9 10 lI DATED: May 6, 2009 12 13 14 15 I6 17 18 19 20 21 22 23 24 25 26 27 2S
Case No . CV 04-4484 AHM (SHx} [Consolidated with Case No. CV 45-4753 AHM {SHx}] dOMTSTIFtJLAT10N ON GOOGLE`5 MOTION TO COMPEL -111 ^

QUINN EMANUEL URQUHART QLI^7Elt & HEDGES. LLP
$V Is! Rachel Herrick Kassahtan Rachel Herrick ICassabian Attorne^vs for Defendant Goole Inc.

THE LAViT OFFICES QF JEFFREY N. MAUSNER

By /s/ Jeffrey N. Mausner with permission}
Jeffrey N. Mausner Yalene E. Kincaid Attorneys for Plaintiff Perfect 10. Inc.

E^^^^ET ^'^.^^

EXHIBI T E

i

Case 2:04-c^-09484-AHM-SH

Document 560

Filed 10/08/2009

Page 1 of 9

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION PERFECT 14, INC., a California corporation, Plaintiff, v. AMAZON.COM, INC., a corporation; A9.COM INC. a corporation; ALE^A. ^NTEI^NET INC., a corporation , and DOSS