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 Att. 1

2 3 4 5 6 7 8

QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP Michael T. Zeller Bar o. 1964171 michaelzeller@quinnemanueLcom 865 South Figueroa Street, 10th Floor Los Angeles, California 90017-2543 Telephone: 213} 443-3000 Facsimile: 213} 443-3100 Charles K. erhoeven {Bar^No. 170151) charlesverhoeven@qulnnemanuel. com 50 California Street, 22nd Floor San Francisco? California 94111 Rachel Herrlck Kassabian (Bar No. 191060} rachelkassabian quinnemanuel.com 555 Twin Dolphin rive, 5th Floor 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 05753 AHM {SHx}] DISCOVERY MATTER
vs.

13 PERFECT 10, INC., a California corporation, 14
Plaint

15 GOOGLE INC. a corporation; and 17 DOES 1 throug^I 100, inclusive, 18 ^ Defendants. 19 AND COUNTERCLAIM 20 21 PERFECT 10, INC., a California corporation, 16

DECLARATION OF THOMAS NOLAN IN SUPPORT OF GOOGLE INC.' S JOINDER IN THE AMAZON DEFENDANTS' MOTION TO COMPEL PRODUCTION OF THE MICROSOFT SETTLEMENT AGREEMENT Hon. Stephen r. Hillman Date: February 16, 2010 Time: 2:00 p.m.
Crtrm.: 550 Discovery Cut-off: None Set Pretrial Conference Date: None Set Trial Date: None Set

22 Plaint 23 vs. 24 AMAZON.COM, INC., a corporation; A9.COM, INC. a corporation; and 25 DOES 1 thraug^. 100, Inclusive, 26 ^ Defendants. 27 28
0 ] 9&0.5 ] 32013309997, I

DECLARATION OF THOMAS NOLAN Dockets.Justia.com

1' 2

I, Thomas Nolan, declare as follows: 1. I am a member of the bar of the State of California and an associate with

3 Quinn Emanuel Urquhart Oliver & Hedges, LLP, counsel for Defendant Google Inc. 4 in this action. I make this declaration of my personal and firsthand knowledge and, if S called and sworn as a witness, could and would testify competently thereto. 6 2. Attached hereto as Exhibit A is a true and correct copy of excerpts of

7 Defendant Google Inc.'s Eighth Set of Requests for the Production of Documents to S Plaintiff Perfect 10, Inc., served August 11, 2009. 9
3. Attached hereto as Exhibit B is a true and correct copy of excerpts of

10 Perfect 10's Response to Eighth Set of Requests for Production of Documents from 11 Defendant Google Inc. to Plaintiff Perfect 10, Inc., served September 14, 2009. 12 4. Attached hereto as Exhibit C is a true and correct copy of meet-and-

13 confer correspondence between counsel for Google Inc. and counsel for Perfect 10, 14 Inc. regarding Google's Eighth Set of Requests for the Production of Documents. 15 I declare under penalty of perjury under the laws of the United States of

16 America that the foregoing is true and correct. Executed February 4, 2010 at Los 17 Angeles, California. 18 19 20 21 22 23 24 25 26 27 2S
O l 980 .5132013309997.1 I

C^^

Thomas Nolan

_ -^DECLARATION OF THOMAS NOLAN

EXHIBIT A

Charles I^. erhoeven (Bar No. 170151) charlesverhoevsn@ q uinnemanuel.com 50 California Street 22nd Floor 6 San Francisco, Cali^'ornia 94111
5 7

QUINN EMANUEL UR^UHART OLI^1'ER & HEDGES, LLP Michael T. Zeller ^3ar o. 1964 ^ 7^ michaelzell [e-mail] 2 86S South Figueroa Street, 10th Floor 3 Los Angeles, California 90017-2543 Telephone: [phone] 443-3100 4 Facsimile : 1

Rachel Herrlck Kassabian (Bar No. 19105d} rachelkassabian quinnemanuel.com 555 Twin Dolphin rive, Suite 560 81 Redwood Shores, California 94065

9 Attorneys for Defendant Google Inc. 10 11 12 13 14 Plaintiff, 15 vs. 16 COOGLE INC. a corporation; and 17 DOES 1 throug^I 1 dd, inclusive, 18 19 AND COUNTERCLAIM ZO 21 22 23 24 2S 26 vs. AMAZON.COM, ING ., a corporation; A9.COM, INC. a corporation; and DOES l throug^i 100, inclusive, Defendants. PERFECT 10, INC., a California corporation, Plaintiff, Defendants.

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA PERFECT l d, INC., a California corporation, CASE NO, CV 04-9484 AHM ^5Hx} [Consolidated with Case No. C 454753 .A.HM (SHx)]

DEFENDANT GOOGLE INC.'S EIGHTH SET OF REQUESTS FOR THE PRODUCTION OF DOCUMENTS TO PLAINTIFF PERFECT l.Q, INC.

2^
28
5] 320f3049058,1

^cHiBir
PAGE

Case No. CV 04 9484 AHM (S^Tx) [ ConsoEidated with Case No. CV U5-4753 AHM (SHx)] GOOGLE INC'S EIGHTH SET OF REQUEST'S FOR THE PRODYJCTION OF DOCUMENTS

1

9.

If the request is silent as to the time period for which production of

2 DOCUMENTS is sought, production shall be made of all DOCUMENTS in YOUR
3 possession, custody, or control at any time. 4 1D. This request for production ofDOCUMENTS and things is continuing

5 in nature and requires prompt production of supplemental materials if,YOU obtain 6 additional responsive DOCUMENTS or things after the time of YOUR initial 7' response, to the full extent provided by Fed. R. Civ. P. 26(e). 8 9 10 X1 12 Request for Production

REQUEST FOR PRODUCTION NO;_230:
The DOCUMENT or DOCUMENTS constituting the settlement agreement in

13 the case titled Perfect 10, Inc. v Microsoft Corporation, Case No. D7-cv-0515614 AHM (SHx) (including the DQCUMENT or DOCUMENTS that YOU manually 15 filed in that case on April 23, 20D9 and/or April 24, 2009 pursuant to the Court's 16 order of April 21, 2D09). 17 1S DATED: August 11, 20D9 19 20 21 22 23 24 25 26 27 QUINN EMANUEL URQUHART OLIVER & H DGES, LLP

Rachel Herrick Kassabian
Attorneys for Defendant Google Inc.

F.k^^IB1T PAGE

A

2g
513201304SOS8,1

Case No. CV 04-9484 AHM (SHx} [ConsolidaFed wi#h Case No . CV OS-4753 AHM (SHx} GOGGLE INC: S EIGHTH SET OF REQUESTS FOR THE FIZODUCTIQN OF DOCUMENTS

_^._

EXHIBIT B

1 2 3 4 5 6 7' $ 9

Jeffrey N. Mausner (State Bar No. 122385) Law Offices of Jeffrey N. Mausner Warner Center Towers 21800 Oxnard Street, Suite 910 Woodland Hills, California 91367 Email: [e-mail]

Telephone: (310} 617-8100; {818) 992-7500 Facsimile: (8 i 8) 716-2773 ^ Attorneys for Plaintiff PERFECT I0, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

^a ^^
12 13 14
15 I6 17 18

PERFECT I0, INC., a California corporation,
Plaintiff, v.

Master File No. CV04-9484 AHM (SHx) Consolidated with Case No. CV 05-4753 AHM (SHx) PERFECT la's RESPONSE TO EIGHTH SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS FROM DEFENDANT GOOGLE, INC. TO PLAINTIFF PERFECT 10, INC.

GOOGLE, INC., a corporation; and DOES 1 through 100, inclusive, Defendants. AND CONSOLIDATED CASE

19 20 21

PROPOUNDING PARTY: RESPONDING PARTY:

DEFENDANT GOOGLE, INC. PLAINTIFF PERFECT 10, INC EIGHT

22 23 24 25 26 27 2$
-lPerfect IO ' s Response to Eighth Set of Requests for Production of Documents from Defendant Google, Inc. to Plaintiff Perfect I0, Inc. ^^^^^T

SET NUMBER:

Plaintiff Perfect 10, Inc. ("Perfect 10") responds to Defendant Google, Inc.'s Eighth Set of Requests for Production of Documents as follows:

1 2 3 4

supplement, or otherwise amend these responses and to provide information concerning facts, witnesses or documents omitted by these responses as a result of oversight, inadvertence, good faith error, or mistake. DOCUMENT REQUESTS

5
6 7 8 9 tp

REQUEST FOR. PRODUCTION N0.230;
The DOCUMENT or DOCUMENTS constituting the settlement agreement in the case titled Perfect 10, Inc. v. Microsoft Corporation, Case No. 07-cv-05156^AHM (SHx} (including the DOCUMENT or DOCUMENTS that YOU manually f led in that case on April 23, 2009 and/or Apri124, 2009 pursuant to the Court's order of Apri121, 2009}.

l1
12 13 14 15 16 17 18 19 20 21
22 23

RESPONSE_TO REQUEST FOR PRODUCTION N0.230:
Perfect 10 further objects to this request on the ground that it seeks irrelevant information. Perfect I O filrther objects to this request on the ground that it is not reasonably calculated to lead to the discovery of admissible evidence. Perfect 10 fixrther objects to this request on the ground that it invades Perfect 10's privacy rights and Microsoft's privacy rights. Perfect 10 further objects to this request on the ground that it seeks information about settlement negotiations and settlements in another case, which is conf dential. Perfect l 0 further objects to this request on the ground that it is contrary to public policy to compel production of conf dential documents regarding settlement negotiations and agreements. Perfect 10 further objects to this request on the ground that Judge Hillman denied a motion to compel the production of
confidential settlement agreements and related documents in another Perfect 10 case. Perfect I0 further objects to this request on the ground that Judge Matz required that

24 the settlement agreement in the Microsoft matter be filed under seal. See Perfect 1 d v. 25 26 27 28 /// /// /// ///
-4Perfect 10's Response to Eighth Set of Requests for Production of Documents from Defendant Google, Inc. to Plaintiff Perfect 10, Inc. ^^^^^^

PA GE _ .^_

1 2 3 4 S 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 I' 21 22 23 24 25 26 27 2$

Microsoft, Case No. CV 07-5156, Docket No. 140. Perfect X O further objects to this request to the extent that it seeks documents subject to the attorney-client privilege, work product doctrine, and any other applicable privilege.

Dated: September 14, 2009

Law Offices of Jeffrey N. Mausner

By:

`77. ^h ct.u^^-ru ^^
Je frey N. Mausner Attorneys for Plaintiff, Perfect 10, Tnc.

..5_ Perfect 10's Response to Eighth Set of Requests for Production of Documents from Defendant Coog3e, inc. to Plaintiff Perfect 10,1nc.

^XHIBfT PAGE

^

^--..-

EXHIBIT C

quinn emanuel

trial lawltcrs ^ sl,ica^t lrave^

555 71^rin I.7olphin I3ri\^c- Suiec 560, Redtivaod Shores. Culii'o11^ia (1·^(f65 ^ Tee.; 1650) RO]-5ti6G r:\x^ (c^5[s) s09-a 10(^

WRITER'S DIRECT DIAL NO.

^6sol gal-sons
WRITER'S INTERNET ADDRESS [e-mail]

September 17, 2009 U.S. MAIL,

VIA E-MAIL AND

Jeffrey N. Mausner Warner Center Towers

21 S00 Oxnard Street, Suite 910 Woodland Hills, CA 91367 jeff@ mausnerlaw.com

Re:

Perfect_I D, Inc. v. Gaogle Inc.: Google's Eighth Set of Requests for Production of Documents

Dear Jeff Please accept this letter as Goagle's initiation of meet and confer efforts under Civil Loca! Rule 37-1 regarding Perfect l0's deficient response to Google's Eighth Set of Requests for Production. Specifically, Perfect 10 improperly refused to produce documents in response to Request for Production No. 230, which sought: The DOCUMENT or DOCUMENTS constituting the settlement agreement in the case titled Perfect 10, Inc . v. Microsoft Corporation , Case No. 07-cv-05156-AHM (SHx} (including the DOCUMENT or DOCUMENTS that YOU manually filed in that case on April 23, 2009 and/or April Z4, 2009 pursuant to the Court ' s order of April 21, 2009). Google's request calls for relevant documents and is "reasonably calculated to lead to the discovery of admissible evidence" because Perfect 10 has put the value of its alleged copyrighted works at issue here. Perfect ] 0's objection that this request calls for "private and confidential" information is not a basis for refusing to produce responsive documents. The Protective Order provides the necessary protections for and limitations on disclosure of private and confidential information, so if Perfect f 0 wishes, it may designate responsive documents as "confidential" thereunder. Perfect ] 0's additional objections ofattorney-client privilege and work product
quinn emanuel urgahart sliver a hedilas, ilp
t(rs.)xcrt.!^^{S(,;SonthFigurnrxS(:eei.IOiptF4rar.L,osAr!ncles.C':1 9nul°i rta ('13s ^-f?-3^^U4,;x{?13y:I^i.;,;lUtl ^VY^^YORt: ISg\.t^!(11$pr1 ^ \ S'ODUC , 7 ^Ilil 1'tO01 ', 1L4^'1'rtr1:, ^}' IU6I(i^m:, f21 Y}Sari ?Oti[: t:.::(?21549-71t^ii

S,t ^'FR.4KCIS('O^ SI1 f'alilinnin Street, '_'2,uri Flnui, San i'rane!sci+, i':\ V^iS I I ! n'i (-11^) n?^-6Gpi] c^,.y. i415t 3?^-u:Ull ('F41i^AG(1's <`-1} Suntb LV:I^{,'cr F)ri:·a. 5uitc^' ^[t, Cliic,igt+. 11 6^(spG i^a (312 <iu:^-ZRr!I r:,;: f ^ l1) dG:- ^>^r2 (_uX[tO7: 1 10 f)!d 13,,ifU}', (,nndnn lY'4 i1^1 71 i(i Ilnilyd iiin(^dum r 'rf^s ...-ids{)} :'G +b::+ 7,[!q0 p i': '.Ian Qi %il'. i>? ]. i EEO 'rui. 1'U j :\k;rsafia "f^cin 1^o+4' er \^lair! Rlilc., bt6 I'I_, i? .2 ·\knealc! _-f'homc, \-0 i:^atrt-I ;n, ^i'oi:yn iL'-(i:7^° 1dp:m I i r.:. =^81 3 SSG LI"(1 " + ^ 11 ± 55{.I-I' 12

E^^^BI^' PA6 E _

C
^'

doctrine are^similarly meritless, because no such protections apply to a settlement agreement executed with a third party and filed with the Court.

Flease withdraw these improper objections and produce responsive documents without further delay.
Sincerely,

^^ r^.^,^ ^^^.,s^; .
Rachel Herrick Kassabian

RHK:br)
01980 .51320/3105041.]

2

EXHPBiT PAGE

C

Thomas Nolan
From : Sent : To: Cc: Subject : Brad R. Lave Tuesday, October p6, 2009 2:44 PM Jeffrey Mausner Rachel Herrick Kassabian ; Valerie Kincaid; Michael T Zeiler; Thomas Nolan; Jansen, Mark T. Cahn, Timothy R. RE:: Perfect 10, Inc. v. Google Inc.

Jeff, We disagree that "information regarding the amount of the settlement" found in Perfect 1p's financial statements would make Google's Request for production No. 230 unnecessary. Google has requested the "DOCUMENT or DOCUMENTS constituting the settlement agreement in the case titled Perfect 10, Inc. v. Microsoft Corporation, Case No. 07-cv-05156-AHM (SHx} (including the DOCUMENT or DOCUMENTS that YOU manually filed in that case on April 23, 2009 and/or April 24, 2009 pursuant to the Court's order of April 21, 2009}." !f anything, Perfect 10 will need to produce the entire settlement agreement from the Microsoft case as part of the source documents supporting Perfect 10's financial statements and tax returns at least ten business days prior to the deposition of Bruce Hersh. Please confirm that Perfect 10 will do so.

Regards,

Brad Love
Quinn Emanuel Urquhart Oliver & Hedges, LLP 5p California Street, 22nd Floor

San Francisco, CA 94111 Direct: [phone] Main Phone: [phone] Main Fax: (415} 875-6700 E-mail: bradloveC^guinnemanuel.com T Web: www.guinnemanuel.com The information contained in this a-mail message is intended only for the personal and confidential use of the recipient(s) named above. This message may be an attorney-client communication andlor work product and as such is privileged and confidential. !f the reader of this message is not the intended recipient or agent responsible for delivering it to the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, distribution, or copying of this message is strictly prohibited. if you have received this communication in error, please notify us immediately by a-mail, and delete the original message,

__ From : Jeffrey Mausner [mailto:[e-mail]] Sent : Sunday, September 27, 2009 4:58 PM To: Brad R. Love Cc: Rachel Flerrick Kassabian; Valerie Kincaid Subject : FW: Perfect 10, Inc. v. Google Inc. In fight of Judge Hillman's ruling regarding the financial statements, under which you will receive information regarding the amount of the settlement, this request is no longer necessary, in addition to Perfect 10's stated objections. Jeff.

Frorn : Brad R. Love [mailto:[e-mail]] Sent : Thursday, September 17, 2009 12:31 PM

1

^xH^^ir
PAGE

C

To: Jeff Mausner

Cc: Rachel Herrick Kassabian
Subject : Perfect 10, Inc. v. Google Inc. [}ear Jeff, Please see attached. liegards,

Brad Love Quinn Emanuel Urquhart Oliver & Hedges, LLP 50 California Street, 22nd Floor San Francisco, CA 94111 Direct: [phone] Main Phone: (415} 875-6800 Main l=ax : {415} 875-6700 E-mail: bradloveCa^auinnemanuel.com Web: www.AUinnemanuel.com The information contained in #his a - mail message is intended only for the personal and confidential use of the recipien#(s} named above . This message may be an attorney-client communication andlor work product and as such is privileged and confidential . If the reader of this message is not the intended recipient or agent responsible for delivering it to the intended recipient , you are hereby notified that you have received this document in error and that any review, dissemination, distribu#ion, or copying of this message is strictly prohibited . If you have received this communication in error , please notify us immediately by a-mail, and delete the original message.

I,,XHIBIT

C
/0

PacE