Perfect 10 Inc v. Google Inc et al

Filing 846

STATEMENT of Response to Perfect 10, Inc.'s Statement of Clarification re: MOTION for Sanctions Against DEFENDANT GOOGLE, INC. - NOTICE OF MOTION AND MOTION OF PLAINTIFF PERFECT 10, INC. FOR EVIDENTIARY AND OTHER SANCTIONS AGAINST DEFENDANT GOOGLE, INC. AND/OR FOR THE APPOINTMENT OF A SPECIAL MASTER #617 Google Inc.'s Response to Perfect 10, Inc.'s Statement of Clarification of Perfect 10's Position Regarding Applicability Of Rule 56(f) to Pending Motions for Summary Judgment and Motion for Evidentiary and Other Sanctions filed by Counter Claimant Google Inc, Defendant Google Inc. (Kassabian, Rachel)

1 QUINN EMANUEL URQUHART & SULLIVAN, 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)] GOOGLE INC.'S RESPONSE TO PERFECT 10, INC.'S STATEMENT OF CLARIFICATION OF PERFECT 10'S POSITION REGARDING APPLICABILITY OF RULE 56(F) TO PENDING MOTIONS FOR SUMMARY JUDGMENT AND MOTION FOR EVIDENTIARY AND OTHER SANCTIONS 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 RESPONSE TO PERFECT 10'S STATEMENT OF CLARIFICATION OF ITS POSITION REGARDING RULE 56(F)

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Google Inc. respectfully submits the following Response to Perfect 10, Inc.'s

2 ("P10") Statement of Clarification of Perfect 10's Position Regarding Applicability of 3 Rule 56(f) to Pending Motions for Summary Judgment and Motion for Evidentiary 4 and Other Sanctions (Dkt. No. 787). 5 P10's "Statement" is legally irrelevant and factually incorrect. Specifically, 6 P10 claims that it "reserves the right to seek relief under Rule 56(f), to the extent that 7 such relief is necessary or proper, whether under any ruling by this Court or 8 otherwise, or in connection with any of the pending motions." In fact, P10 has 9 clearly and unequivocally waived any ability it may once have had to bring a motion 10 before Judge Matz for additional discovery under Rule 56(f) in connection with 11 Google's pending motions for summary judgment regarding its entitlement to safe 12 harbor under 17 U.S.C. § 512 (Dkt. Nos. 456-458) (the "DMCA Motions"). 13 First, P10 waived Rule 56(f) relief by filing its own motion for summary 14 judgment on DMCA safe harbor in 2009, confirming that this issue was ripe for 15 disposition by the Court (Dkt. No. 436). Sullivan v. City of Springfield, 561 F.3d 7, 16 16 (1st Cir. 2009) (plaintiffs could not argue that summary judgment was premature 17 when "they affirmatively requested that the court resolve the case on the existing 18 evidence"); Filiatrault v. Comverse Tech., Inc., 275 F.3d 131, 138 (1st Cir. 2001) 19 (filing a cross-motion for summary judgment "almost invariably indicates that the 20 moving party was not prejudiced by a lack of discovery."). 21 Second, P10 again waived Rule 56(f) relief by electing to oppose Google's 22 DMCA Motions on their merits, rather than file a Rule 56(f) motion requesting that 23 the DMCA Motions not be heard or decided until specific additional discovery was 24 completed (Dkt. Nos. 495, 497, 498, filed under seal). Rodriguez-Cuervos v. Wal25 Mart Stores, Inc., 181 F.3d 15, 23 (1st Cir. 1999) ("Ordinarily, a party may not 26 attempt to meet a summary judgment challenge head-on but fall back on Rule 56(f) if 27 its first effort is unsuccessful.") (citation omitted); Access Telecom, Inc. v. MCI 28 Telecommunications Corp., 197 F.3d 694, 719 (5th Cir. 1999) (plaintiff "waived the
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GOOGLE'S RESPONSE TO PERFECT 10'S STATEMENT OF CLARIFICATION OF ITS POSITION REGARDING RULE 56(F)

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1 issue of inadequate discovery" by failing to file a Rule 56(f) motion). 2 Third, P10 expressly disclaimed Rule 56(f) relief in the briefing on its Motion 3 for Evidentiary Sanctions. See P10's Reply in Support of Its Motion For Evidentiary 4 and Other Sanctions (Dkt. No. 683, filed under seal), at 24. 5 Fourth, even had P10 not repeatedly waived any entitle ment to Rule 56(f) 6 relief, Rule 56(f) cannot be used to compensate for a party's failure to diligently 7 pursue discovery. See, e.g., Mackey v. Pioneer Nat'l Bank, 867 F.2d 520, 524 (9th 8 Cir. 1989) ("A movant cannot complain if it fails diligently to pursue discovery 9 before summary judgment"). P10 has had nearly six years to pursue whatever And, far from pursuing discovery 10 discovery it deemed relevant to the case.

11 diligently, it has repeatedly sought and in some instances obtained stays of the 12 litigation. P10 cannot now use its own discovery failings and lack of diligence as a 13 means to delay resolution of Google's DMCA Motions. 14 In sum, Google's DMCA Motions are fully briefed, under submission, and ripe 15 for ruling, and P10 has long-since waived any claim to Rule 56(f) relief. P10's 16 misdirected1 "position" lacks merit and should be disregarded. 17 DATED: April 2, 2010 18 19 20 21 22 23 24 Google's DMCA Motions are fully briefed and under submission with Judge 25 Matz. Any "position" P10 wishes to assert regarding the DMCA Motions would be properly directed to Judge Matz. Cf. Church of Scientology of San Francisco v. 26 I.R.S., 991 F.2d 560, 562-63 (9th Cir. 1993), vacated in part on other grounds, 30 27 F.3d 101 (1994) ("... Rule 56(f) leaves the decision to grant discovery wholly within the discretion of the district judge."). 28
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QUINN EMANUEL URQUHART & SULLIVAN, LLP By Rachel Herrick Kassabian Attorneys for Defendant GOOGLE INC.

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GOOGLE'S RESPONSE TO PERFECT 10'S STATEMENT OF CLARIFICATION OF ITS POSITION REGARDING RULE 56(F)

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