Perfect 10 Inc v. Google Inc et al

Filing 755

OPPOSITION re: REQUEST for Hearing - REQUEST FOR TELEPHONIC CONFERENCE WITH JUDGE HILLMAN #749 Google Inc.'s Opposition to Perfect 10, Inc.'s Request For a Telephonic Conference with Magistrate Judge Hillman filed by Counter Claimant Google Inc, Defendant Google Inc. (Kassabian, Rachel)

Perfect 10 Inc v. Google Inc et al

Doc. 755

1 QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP Michael T. Zeller (Bar No. 196417) [e-mail] 2 865 South Figueroa Street, 10th Floor 3 Los Angeles, California 90017-2543 Telephone: [phone] Facsimile: [phone] Charles K. Verhoeven (Bar No. 170151) [e-mail] 5 50 California Street, 22nd Floor 6 San Francisco, California 94111 Rachel Herrick Kassabian (Bar No. 191060) [e-mail] 7 555 Twin Dolphin Drive, 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 054753 AHM (SHx)] DISCOVERY MATTER GOOGLE INC.'S OPPOSITION TO PERFECT 10, INC.'S REQUEST FOR A TELEPHONIC CONFERENCE WITH MAGISTRATE JUDGE HILLMAN Hon. Stephen J. Hillman Date: None set Time: None set Crtrm.: 550 Discovery Cutoff: 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 17 DOES 1 through 100, inclusive, 18 19 20 22 23 vs. Defendants. AND COUNTERCLAIM

PERFECT 10, INC., a California 21 corporation, Plaintiff,

24 AMAZON.COM, INC., a corporation; A9.COM, INC., a corporation; and 25 DOES 1 through 100, inclusive, 26 27 28
01980.51320/3298487.1

Defendants.

GOOGLE'S OPPOSITION TO PERFECT 10'S REQUEST FOR A TELEPHONIC CONFERENCE Dockets.Justia.com

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At the January 15, 2010 hearing on Perfect 10's ("P10") motion for evidentiary

2 sanctions, this Court reprimanded Perfect 10 for its "appalling" conduct in filing its 3 motion without ever having properly met and conferred with Google regarding the 4 underlying discovery issues.1 P10 nevertheless again rushes to this Court and 5 demands a telephonic hearing regarding issues P10 has not yet even given Google a 6 chance to respond to. P10's demand should be rejected. 7 Just two business days ago, P10 sent Google an email listing several categories 8 of documents about which it wished to meet and confer. The next business day-- 9 yesterday--Google sent P10 an email confirming that it would consider, investigate 10 and respond to each of P10's demands in writing. See Declaration of Jeffrey 11 Mausner (Dkt. No. 750) ("Mausner Decl.") at Exh. 1, pp. 8-10.2 Today, rather than 12 give Google the opportunity to provide that response, P10 burdens this Court with a 13 woefully premature "Request" for a telephonic conference to discuss P10's demands.3 14 (Dkt. No. 749). P10's Request lacks merit. Motion practice--let alone a hearing-- 15 would be pointless at this stage, since Google has not yet even had the opportunity to 16 investigate and respond to P10's January 22 meet and confer email. Nor have the 17 18 19 20 21 22 23 24 25 26 27 28
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At the January 15, 2010 hearing, the Court commented that it was inclined to deny P10's Sanctions Motion, observing among other things that the Court found it "inconceivable" that Google was on any kind of notice that it was obliged to produce Blogger-related discovery prior to P10's amendment to add Blogger to the case, and that the Court was not left with the impression that any discovery order had been violated. 2 Since P10 failed to consecutively number its Declaration and Exhibits as required by Local Rule 11-5.2, Google refers to the page numbers of the .pdf file itself. 3 P10 presents a lengthy paraphrase from an informal transcription of the audio tape from the January 15, 2010 hearing. Even assuming its accuracy, this quotation hardly supports P10's Request--obviously, the Court was not contemplating a telephonic conference before the parties completed meet and confer. Moreover, P10 omits the portions of the transcript wherein the Court reprimanded P10 for failing to properly meet and confer before bringing a motion (as P10 again does here). -1-

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GOOGLE'S OPPOSITION TO PERFECT 10'S REQUEST FOR A TELEPHONIC CONFERENCE

1 parties had the opportunity to identify which issues can be resolved without Court 2 intervention, and which issues will require the Court's consideration. 3 This is only the most recent example of P10's repeated failure to comply with 4 the Court's meet and confer requirements. See Google's Response to P10's 5 Evidentiary Objections to the Reply Declaration of Rachel Herrick Kassabian (Dkt. 6 No. 728) at 3-5 (recounting five separate examples of P10's failure to participate in 7 the meet-and-confer process in good faith).4 P10 should not be permitted, let alone 8 rewarded, for burdening the Court with unripe discovery issues, and its "Request" 9 should be denied. 10 Moreover, P10's insistence that there is some urgency here because the 11 documents it claims to be seeking are "directly relevant to pending summary 12 judgment motions before Judge Matz" is incorrect. See Request at 1. Google's 13 motions for summary judgment regarding its entitlement to DMCA safe harbor 14 ("DMCA Motions") have been fully briefed and under submission for months now. 15 See Order dated August 13, 2009 (Dkt. No. 500). Judge Matz has not requested 16 further briefing, nor has P10 asked Judge Matz for leave to file a motion to reopen 17 briefing on Google's DMCA Motions. And further, P10 has made repeated 18 representations--in words and in conduct--both to this Court and to Judge Matz that 19 no further discovery was needed for Judge Matz to rule on DMCA issues.5 P10 has 20 21 22 23 24 25 26 27 28
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When Google has requested that P10 meet and confer regarding issues Google wishes to pursue, P10 has ignored Google's efforts for weeks or months at a time. See Mausner Decl. at Exh. 1, p. 7 (1/22/10 email from R. Kassabian to J. Mausner listing various of Google's meet and confer correspondence to which P10 has not responded for as many as three months, and again requesting a response). P10's dilatory conduct underscores the unreasonableness of P10's election to rush into court after giving Google just 24 hours to respond to P10's current discovery demand. 5 For example, P10 opposed Google's DMCA Motions on their merits (without ever suggesting that discovery was incomplete, let alone filing a Rule 56(f) motion) (Dkt. Nos. 473-484), and even filed its own summary judgment motion on the (footnote continued)
GOOGLE'S OPPOSITION TO PERFECT 10'S REQUEST FOR A TELEPHONIC CONFERENCE

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1 no basis for demanding an "emergency" hearing on these unripe--and at this point 2 irrelevant--discovery issues. 3 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 DMCA issue (Dkt. No. 436). See Access Telecom, Inc. v. MCI Telecommunications Corp., 197 F.3d 694, 719 (5th Cir. 1999) (plaintiff "waived the issue of inadequate 23 discovery" by failing to file a Rule 56(f) motion); Sullivan v. City of Springfield, 561 24 F.3d 7, 16 (1st Cir. 2009) (plaintiffs could not argue that summary judgment was 25 premature when "they affirmatively requested that the court resolve the case on the existing evidence"). P10 also has expressly disclaimed a Rule 56(f) continuance in 26 its Reply brief filed in support of its Sanctions Motion. See Sanctions Reply (Dkt. 27 No. 683, filed under seal) at 24 ("Perfect 10 is not seeking a continuance under Rule 56(f) ...."). 28
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Perfect 10's Request for a telephonic conference should be denied. QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP

4 DATED: January 26, 2010

By Rachel Herrick Kassabian Attorneys for Defendant GOOGLE INC.

GOOGLE'S OPPOSITION TO PERFECT 10'S REQUEST FOR A TELEPHONIC CONFERENCE

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