Perfect 10 Inc v. Google Inc et al

Filing 758

REQUEST for Order for Service of the Under Seal Version of the Amazon Defendants' Motion to Compel Production of the Microsoft Settlement Agreement (and All Supporting Under Seal Documents) filed by Defendant and Counterclaimant Google Inc. (Attachments: #1 Declaration of Thomas Nolan in Support Thereof, and Exhibit A Thereto, #2 Proposed Order)(Kassabian, Rachel)

Perfect 10 Inc v. Google Inc et al

Doc. 758

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 REQUEST FOR AN ORDER REQUIRING SERVICE OF THE UNDER SEAL VERSION OF THE AMAZON DEFENDANTS' MOTION TO COMPEL PRODUCTION OF THE MICROSOFT SETTLEMENT AGREEMENT (AND ALL SUPPORTING UNDER SEAL DOCUMENTS) [Declaration of Thomas Nolan and (Proposed) Order filed concurrently] 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
01980.51320/3298446.3

Defendants.

GOOGLE'S REQUEST FOR AN ORDER REQUIRING SERVICE OF THE UNDER SEAL VERSION OF THE AMAZON DEFENDANT'S MOTION TO COMPEL (AND ALL SUPPORTING UNDER SEAL DOCUMENTS) Dockets.Justia.com

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On January 20, 2010, the Amazon Defendants filed a Motion to Compel

2 Perfect 10, Inc. ("P10") to produce the settlement agreement that resolved the 3 Microsoft case (Dkt. No. 364 in the consolidated case) (the "Amazon Motion"). Both 4 the Amazon Defendants and P10 filed various documents in support of their positions 5 as well, including the Declaration of Mark Jansen (and exhibits thereto) and the 6 Declaration of Jeffrey Mausner (and exhibits thereto) (also at Dkt. No. 364 in the 7 consolidated case). Google received an ECF notice of this filing and obtained the 8 public redacted versions of these filings from the ECF system. However, neither the 9 Amazon Defendants or Perfect 10 served Google with the unredacted under-seal 10 versions of these filings (see Docket Nos. 368 and 369), as is the rule and practice in 11 these consolidated cases. 12 Accordingly, on January 22 and 25, 2010, respectively, Google requested that 13 Amazon and P10 serve Google with the complete and unredacted versions of these 14 filings. See Declaration of Thomas Nolan filed concurrently ("Nolan Decl.") at ¶ 2 15 (describing request to Amazon); ¶ 3 (describing request to P10); and Exh. A (email 16 exchange with P10). Amazon and P10 declined to do so. Id. at ¶¶ 2-3 and Exh. A. 17 Amazon's position is that it cannot give Google the unredacted documents because, 18 as a condition for receiving certain information about the settlement from Microsoft, 19 Microsoft required the Amazon Defendants to agree that they would not further 20 disclose that information to Google or its attorneys. Id. at ¶ 2. P10's position is that 21 P10 (and Microsoft) have not consented to Google seeing the redacted material, and 22 that "[t]herefore, Google is not entitled to see the redacted material." Id. at ¶ 3 and 23 Exh. A; see also Joint Stipulation (Dkt. No. 364 in the consolidated case) at 1 24 (describing agreement with Microsoft). Google now asks this Court to order Amazon 25 and P10 to serve Google with the unredacted papers that were filed under seal. See 26 Docket Nos. 368 and 369. 27
01980.51320/3298446.3

The Federal and Local Rules require service of all filed documents on all -1-

28 parties. See Fed. R. Civ. P. 5(a) (requiring service of all pleadings on all parties
GOOGLE'S REQUEST FOR AN ORDER REQUIRING SERVICE OF THE UNDER SEAL VERSION OF THE AMAZON DEFENDANT'S MOTION TO COMPEL (AND ALL SUPPORTING UNDER SEAL DOCUMENTS)

1 unless the Rules provide otherwise); Local Rules 6-1 and 7-5 (requiring service of 2 moving papers). The Google and Amazon cases have been consolidated for discovery 3 purposes. See Order dated September 19, 2005 (Dkt. No. 34) ("The Court 4 specifically ... grants the request to consolidate CV05-4753-AHM (SHx): Perfect 10, 5 Inc. v. Amazon.Com, Inc., et al. with CV04-9484-AHM (SHx): Perfect 10, Inc. v. 6 Google, Inc., et al."). Indeed, Judge Matz affirmed in his December 22, 2008 Order 7 that the Google and Amazon cases are to be treated as consolidated. See Order dated 8 December 22, 2008 (Dkt. No. 400) ("The Court consolidates these three actions for 9 the purpose of ensuring that Google and Amazon (including A9 and Alexa) are 10 automatically included in the Court's ECF system on all filings in Microsoft. The 11 Clerk's Office is instructed to treat these cases as consolidated."). Thus, Google, as a 12 party to these consolidated cases, is entitled to be served with all papers and exhibits 13 filed in the Amazon case. 14 P10 has identified no legal basis for declining to serve Google with any filed 15 document, nor is there one. If P10 wishes to designate certain portions of the 16 Amazon Motion as "Confidential" or "Highly Confidential ­ Attorney's Eyes Only" 17 pursuant to the Protective Order (Dkt. No. 94), it may do so--but it may not simply 18 decline to serve Google with these filed documents. And as for the Amazon 19 Defendants, while Google appreciates that Microsoft has made certain demands, 20 Microsoft's wishes do not trump (1) the Federal and Local Rules requiring service of 21 all filings on all parties, (2) the Court's Consolidation Order, and (3) the Protective 22 Order. To the extent that certain of Microsoft's confidential information is included 23 in the Amazon Motion, it is free to designate that information as "Confidential" or 24 "Highly Confidential ­ Attorney's Eyes Only" pursuant to the Protective Order. See 25 Protective Order (Dkt. No. 94) at ¶ 3 (nonparties may designate information 26 Confidential). However, Microsoft may not dictate what court filings are or are not 27 served upon the parties in this case. 28
01980.51320/3298446.3

GOOGLE'S REQUEST FOR AN ORDER REQUIRING SERVICE OF THE UNDER SEAL VERSION OF THE AMAZON DEFENDANT'S MOTION TO COMPEL (AND ALL SUPPORTING UNDER SEAL DOCUMENTS)

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Moreover, this filing directly implicates issues relevant to the Google case. For

2 example, the Amazon Defendants argued that the settlement agreement is relevant to 3 liability and damages issues. Joint Stipulation (Dkt. No. 364 in the consolidated case) 4 at 7 and 12. Although portions of the Amazon Defendants' argument on this point 5 are redacted, the Amazon Defendants did make clear that P10's settlement agreement 6 with Microsoft reveals relevant information concerning the copyrighted works P10 7 purports to own, and the alleged value of those works. Id. These arguments apply 8 with equal force in the Google case, making the Microsoft settlement agreement 9 relevant for Google as well. In fact, Google has served P10 with a document request 10 calling for production of the Microsoft settlement agreement, but P10 has refused to 11 produce it. Nolan Decl. ¶ 5. Accordingly, it may be necessary for Google join in the 12 Amazon Motion. Google cannot make that determination without first having 13 received service of and reviewed the complete, unredacted Amazon Motion (and 14 supporting papers). 15 Accordingly, Google respectfully requests that the Court order the Amazon 16 Defendants and P10 to serve Google with the complete and unredacted version of the 17 Amazon Motion (Docket No. 368, filed under seal) and all supporting papers. 18 19 DATED: January 27, 2010 20 21 22 23 24 25 26 27 28
01980.51320/3298446.3

QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP

By Rachel Herrick Kassabian Attorneys for Defendant GOOGLE INC.

GOOGLE'S REQUEST FOR AN ORDER REQUIRING SERVICE OF THE UNDER SEAL VERSION OF THE AMAZON DEFENDANT'S MOTION TO COMPEL (AND ALL SUPPORTING UNDER SEAL DOCUMENTS)

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