Perfect 10 Inc v. Google Inc et al

Filing 763

NOTICE OF JOINDER filed by Defendant and Counterclaimant Google Inc. Google Inc.'s Notice of Joinder in the Amazon Defendants' Motion to Compel Production of the Microsoft Settlement Agreement (Attachments: #1 Declaration of Thomas Nolan in Support Thereof, and Exhibits A-C Thereto)(Kassabian, Rachel)

Perfect 10 Inc v. Google Inc et al

Doc. 763

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 NOTICE OF JOINDER IN THE AMAZON DEFENDANTS' MOTION TO COMPEL PRODUCTION OF THE MICROSOFT SETTLEMENT AGREEMENT Hon. Stephen J. Hillman Date: February 16, 2010 Time: 2:00 p.m. 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
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Defendants.

GOOGLE INC.'S NOTICE OF JOINDER IN THE AMAZON DEFENDANTS' MOTION TO COMPEL Dockets.Justia.com

1 TO THE CLERK OF THE COURT AND ALL PARTIES AND THEIR COUNSEL 2 OF RECORD: 3 PLEASE TAKE NOTICE that Defendant Google Inc. hereby joins in the 4 Amazon Defendants' Motion to Compel Production of the Microsoft Settlement 5 Agreement, filed January 20, 2010 (Dkt. No. 364 in the consolidated case), set for 6 hearing before the Court on February 16, 2010. 7 The Amazon Defendants seek to compel production of the settlement 8 agreement that resolved Perfect 10, Inc.'s ("P10") also-consolidated case against 9 Microsoft. As with the Amazon Defendants, Google has served a Request for 10 Production of this document, and P10 has refused to produce it. See Declaration of 11 Thomas Nolan ("Nolan Decl.") filed concurrently, at Exhs. A (Google's Request for 12 Production) and B (P10's Response). And like the Amazon Defendants, Google has 13 meet-and-conferred with P10 repeatedly--and unsuccessfully--seeking production of 14 this document. Id. at Exh. C (meet-and-confer correspondence). Since both Amazon 15 and Google seek production of this same document, in order to conserve the Court's 16 valuable resources, Google now joins in the Amazon Defendants' motion for an order 17 compelling production of this document. 18 The Amazon Defendants have explained that this document is relevant to 19 several issues in the Amazon case. See Joint Stipulation on Motion to Compel ("Joint 20 Stipulation") (Dkt. No. 364 in the consolidated case).1 Specifically, the Amazon 21 Defendants argue that "the agreement is potentially highly relevant to issues of 22 liability and damages, and certainly is reasonably likely to lead to the discovery of 23 24 To avoid burdening the Court with repetitive briefing, Google hereby incorporates by reference the relevant portions of both this Joint Stipulation (Dkt. No. 26 364 in the consolidated case) and the Amazon Defendants' Supplemental Brief in 27 support of its Motion to Compel ("Amazon's Supplemental Brief") (Dkt. No. 370 in the consolidated case). 28 25
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1 admissible evidence [on those issues]," and that the agreement "would provide one 2 measure of the value of Perfect 10's copyrighted works." Id. at 7, 12. 3 These same arguments apply with equal force in the Google case. The two 4 cases have been consolidated for discovery purposes, and in each case P10 asserts 5 many of the same copyrighted works and the same general theories of liability and 6 claims for damages. As such, the settlement agreement is equally relevant to P10's 7 theories of liability and damages in both cases--including, for example, to the alleged 8 value of P10's copyrighted works. See Joint Stipulation at 7 and 12 (and authorities 9 cited therein). See also Smith v. NBC Universal, 2008 WL 483604, at *4 (S.D.N.Y. 10 Feb. 22, 2008) (amount of prior settlement can be "relevant to [the jury's] 11 determination of statutory damages"); Atmel Corp. v. Authentec Inc., 2008 WL 12 276393, at *1-2 (N.D. Cal. Jan. 31, 2008) (holding that settlement agreements 13 containing licenses were, at a minimum, relevant to damages); Phoenix Solutions Inc. 14 v. Wells Fargo Bank, N.A., 254 F.R.D. 568, 584 (N.D. Cal. 2008) ("The court 15 recognizes the right of parties to contract for confidential settlement terms and the 16 important policies underlying Federal Rule of Evidence 408 to encourage settlement. 17 However, Rule 408 does not warrant protecting settlement negotiations from 18 discovery. On its face, the rule applies to the admissibility of evidence at trial, not to 19 whether evidence is discoverable."); Abbott Diabetes Care Inc. v. Roche Diagnostics 20 Corp., 2007 WL 4166030, at *2 (N.D. Cal. Nov. 19, 2007) (finding that a "settlement 21 agreement has considerable probative value for a factfinder's determination of 22 whether LifeScan's products constitute acceptable non-infringing substitutes in the 23 relevant market").2 24 25 Further, to the extent P10 claims it need not disclose the settlement agreement 26 because it has disclosed the settlement amount, that argument fails. See Fryer v. 27 Brown, 2005 WL 1677940, at *6 (W.D. Wash. Jul. 15, 2005) ("Plaintiff is also instructed to provide Defendant with the sources of documents Plaintiff used in 28 (footnote continued)
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Moreover, as the Amazon Defendants have identified, the Protective Order

2 provides more than adequate protection to address P10's confidentiality objections-- 3 indeed, many courts have compelled disclosure of settlement agreements subject to a 4 protective order. See Joint Stipulation at 9-14 and Amazon's Supplemental Brief at 5 3-5. See also Southern Shrimp Alliance v. Louisiana Shrimp Ass'n, 2009 WL 6 3447259, at *2 (E.D. La. Oct. 20, 2009) (compelling production of confidential 7 settlement agreements when relevant to the defense, and finding "attorneys' eyes 8 only" protection sufficient to protect confidentiality interests). 9 None of P10's cited authority holds to the contrary. P10's heavy reliance on 10 this Court's unpublished discovery order in Perfect 10 v. Net Management Services, 11 C.D. Cal. Case No. CV 02-3735 LGB (SHx), is misplaced. There, the Court denied a 12 motion to compel a confidential settlement agreement in a RICO case because the 13 "settlement documents ha[d] no relevance to Perfect 10's claims" and "no relevance 14 to the measure of damages." By contrast, the Microsoft settlement agreement is 15 relevant to P10's claims and alleged damages in the Google and Amazon cases. 16 17 DATED: February 4, 2010 18 19 20 21 22 23 24 25 determining his basis for its calculation of damages. Summarily stating the figures is 26 not sufficient."). Moreover, the amount alone, without the accompanying license 27 terms explaining what was being licensed for that dollar figure, is plainly insufficient for damages discovery purposes. 28
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Respectfully submitted, QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP By Rachel Herrick Kassabian Attorneys for Defendant GOOGLE INC.

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