Perfect 10 Inc v. Google Inc et al

Filing 769

REPLY of Google Inc. to Perfect 10, Inc.'s Opposition to Google's Joinder in the Amazon Defendants' Motion to Compel Production of the Microsoft Settlement Agreement (Docket No. 763) filed by Counter Claimant Google Inc, Defendant Google Inc. (Kassabian, Rachel)

Perfect 10 Inc v. Google Inc et al

Doc. 769

Case 2:04-cv-09484-AHM-SH Document 769

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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 REPLY TO PERFECT 10, INC.'S OPPOSITION TO GOOGLE'S JOINDER IN THE AMAZON DEFENDANTS' MOTION TO COMPEL PRODUCTION OF THE MICROSOFT SETTLEMENT AGREEMENT 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
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Defendants.

GOOGLE'S REPLY TO PERFECT 10'S OPPOSITION TO GOOGLE'S JOINDER IN THE AMAZON DEFENDANTS' MOTION TO COMPEL
Dockets.Justia.com

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Defendant Google Inc. submits the following Reply to Perfect 10, Inc.'s

2 ("P10") Opposition to Google's Joinder in the Amazon Defendants' Motion to 3 Compel Production of the Microsoft Settlement Agreement ("Opposition") (Dkt. No. 4 766). 5 I. 6 7 P10 MAKES NO ARGUMENTS IN OPPOSITION TO GOOGLE'S JOINDER IN THE AMAZON DEFENDANTS' MOTION TO COMPEL. P10 offers no factual or legal basis for opposing Google's Joinder, and instead

8 merely rehashes its prior arguments directed to Amazon. The Amazon Defendants' 9 Motion to Compel was fully briefed by the Amazon Defendants and P10 as of 10 January 29, 2010. See Joint Stipulation (Dkt. No. 364 in the consolidated case); 11 Amazon's Supplemental Memorandum (Dkt. No. 370 in the consolidated case). On 12 February 4, 2010, Google joined in the Amazon Defendants' Motion, incorporating 13 by reference the relevant portions of the Amazon Defendants' arguments supporting 14 disclosure of the Microsoft settlement agreement. Google's Notice of Joinder (Dkt. 15 No. 763). Google presented no additional arguments of its own--nor did Google 16 need to, since the Amazon Defendants' relevance argument regarding damages issues 17 applied equally to the Google case. Id. 18 P10 filed nothing in opposition to Google's Joinder.1 Only after the Court 19 granted the Amazon Defendants' Motion on February 9, 2010 did P10 voice any 20 intention to oppose Google's Joinder. The Court granted P10 that opportunity on 21 February 11, 2010, and P10 filed its purported opposition on February 16. P10's 22 arguments, however, do not actually oppose Google's Joinder in the Motion. For 23 example, P10 does not argue that Google should have been required to file a separate 24 motion to compel--nor could it, since two separate motions on the same issue would 25 26 Google gave P10 written notice of Google's intention to join in the Amazon 27 Defendants' Motion prior to filing its Joinder. P10 never responded in any way, and certainly never informed Google that P10 would oppose Google's Joinder. 28
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1 clearly waste the Court's valuable resources. Nor did P10 argue that Google should 2 not be permitted to join the motion because it did not properly request production of 3 the settlement agreement pursuant to Rule 34 or meet and confer after P10 refused to 4 produce it--obviously, Google did all of these things. And finally, P10 does not 5 argue that the damages issues it asserts in the Google case are qualitatively different 6 from the damages issues in the Amazon case--nor could they be, since the alleged 7 copyrighted works, alleged "infringing" conduct, and damages claims are essentially 8 the same in both cases. Thus, P10 presents no reason whatsoever why Google should 9 not have been allowed to join in the Amazon Defendants' Motion to Compel. 10 Instead, P10 uses this "Opposition" to re-hash the same arguments it made in 11 opposition to the Amazon Motion. But those issues were fully briefed, and the Court 12 has already decided them. P10's "Opposition" to Google's Joinder should be 13 disregarded in its entirety. 14 II. 15 16 17 TO THE EXTENT P10'S "OPPOSITION" IS CONSTRUED AS A MOTION FOR RECONSIDERATION OF THE COURT'S ORDER GRANTING THE MOTION TO COMPEL, IT FAILS. At best, P10's arguments in opposition are an attempt to seek reconsideration

18 of the Court's prior Order granting the Amazon Defendants' Motion to Compel. See 19 Opposition at 2 (stating that P10 "disagrees with the basis" for the Court's Order). 20 Local Rule 7-18 establishes specific requirements for motions for reconsideration: 21 22 23 24 25 26 27 28
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[a] motion for reconsideration of the decision on any motion may be made only on the grounds of (a) a material difference in fact or law from that presented to the Court before such decision that in the exercise of reasonable diligence could not have been known to the party moving for reconsideration at the time of such decision, or (b) the emergence of new material facts or a change of law occurring after the time of such decision, or (c) a manifest showing of a failure to consider material facts presented to the Court before such decision.
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1 Local Rule 7-18 (emphasis added).2 P10 does not address these requirements, and in 2 any event, they are not met here.3 3 First, P10's opposition presents no material change in fact or law. Second, P10 4 points to no new material facts or a change of law occurring after the time of the 5 Court's Order. Third, P10 has made no a manifest showing of a failure to consider 6 material facts presented to the Court before it granted Amazon's Motion (and 7 Google's Joinder therein). 8 Instead, P10's attempt at seeking reconsideration merely parrots back P10's 9 earlier--unsuccessful--arguments in opposition to the Amazon Motion. This is 10 insufficient for two reasons. First, Local Rule 7-18 specifically forbids a party from 11 seeking reconsideration merely by "repeat[ing] ... argument made in support of or in 12 opposition to the original motion." Id. Second, P10's rehashed arguments make 13 clear that P10 merely "disagrees with the basis for the Court's ... ruling: `The lengthy 14 Release and covenant not to sue provisions appear to be relevant to issues of liability 15 and/or damages.'" Opposition at 2. But mere disagreement with a ruling is not a 16 basis for reconsideration. See, e.g., Townsend v. Chase Bank USA, N.A., 2009 WL 17 764513, at *1 (C.D. Cal. Mar. 20, 2009) ("Plaintiff does not contend that the Court 18 was presented with incomplete facts or law, that new material facts or law have 19 emerged since the February 15 order was entered, or that this Court failed to consider 20 21 22 23 24 25 26 27 28
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These requirements are in addition to the usual requirements for conferences of counsel and noticed motions--which P10 has also ignored here. 3 And further, P10's "Opposition" far exceeds what the Court granted P10 leave to do. The Court's February 11, 2010 Order granted P10 leave to "file an Opposition to Google's Joinder." Order dated February 11, 2010 (Dkt. No. 377 in the consolidated case). But P10's arguments are not limited to Google's Joinder, or even to Google. Instead, P10 reargues the Court's ruling as to the Amazon Defendants as well--contending that the Amazon Defendants should receive only "the Release and portions of the covenant not to sue provisions." Opposition at 2. P10 was not given leave to present such arguments, and they should be disregarded as well.
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1 material facts presented to it before its February 15 decision. Plaintiff does not 2 present appropriate grounds for reconsideration under Local Rule 7-18, and the 3 Motion is DENIED."); National Rural Telecommunications Co-op. v. DIRECTV, 4 Inc., 319 F.Supp.2d 1094, 1107 (C.D. Cal. 2003) (same). P10's attempt at seeking 5 reconsideration should be rejected. 6 III. 7 P10'S IMPROPER ARGUMENTS FAIL ON THEIR OWN MERITS. And further, even were the Court to consider for a second time P10's

8 procedurally improper and irrelevant arguments, those arguments still fail. For 9 example, P10 claims that since the settlement agreement does not release Google, it is 10 not relevant to the Google case. This is a non-starter, because Google never even 11 made such a relevance argument in its Joinder, nor did the Court base its ruling on 12 this issue. Moreover, as already established in prior briefing--and as the Court 13 already found--the settlement agreement is relevant to P10's theories of liability and 14 damages in both the Google and Amazon cases--including, for example, to the 15 alleged value of P10's copyrighted works. See Joint Stipulation at 7 and 12; Joinder 16 at 1-2. That relevance is sufficient to require production ­ Google need make no 17 greater a showing.4 18 P10 also relies heavily on concerns of confidentiality, again citing the Court's 19 decision in the Net Management case (and other similar cases). But as already 20 shown, while the settlement agreement in Net Management was not relevant to the 21 issues presented by that case, the settlement agreement with Microsoft is relevant to 22 the issues presented in this case. And the Protective Order ­ coupled with this 23 24 P10 also asserts ­ without any basis or explanation whatsoever ­ that the 25 settlement agreement should not be produced to Amazon or Google because it somehow "would undercut Perfect 10's negotiating position and might prevent any 26 settlement." Opposition at 4. P10 presents no authority whatsoever that would 27 permit a party to withhold relevant documents in order to preserve "leverage" in subsequent settlement negotiations, nor is Google aware of any. 28
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1 Court's Order that the settlement agreement be produced with a "Highly 2 Confidential" designation ­ provides more than adequate protection to address P10's 3 confidentiality concerns. See Joinder at 2-3; Joint Stipulation at 9-14; Amazon's 4 Supplemental Brief at 3-5; Order dated February 9, 2010 (Dkt. No. 374 in the 5 consolidated case). 6 7 Conclusion For the foregoing reasons, Google's Joinder in the Amazon Defendants'

8 Motion to Compel was proper, and the stay on the Court's Order granting the Motion 9 to Compel should be lifted. 10 DATED: February 22, 2010 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 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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