Perfect 10 Inc v. Google Inc et al

Filing 867

DECLARATION of Jeffrey N. Mausner In Opposition to Defendant Google Inc.'s Motion for a Protective Order Regarding Perfect 10's Deposition Notice Directed to Dr. Eric Schmidt [Exhibits L, M and N Filed Separately Under Seal Pursuant to Protective Order]; re MOTION for Protective Order for relief from P10's Deposition Notice Directed to Dr. Eric Schmidt #866 filed by Plaintiff Perfect 10 Inc. (Attachments: #1 Exhibit A-D, #2 Exhibit E-H, #3 Exhibit I, #4 Exhibit J, #5 Exhibit K-R)(Mausner, Jeffrey)

Exhibit E

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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: [phone] Facsimile: [phone] Attorneys for Plaintiff Perfect 10, Inc. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA PERFECT 10, INC., a California corporation, v. Plaintiff, PLAINTIFF PERFECT 10, INC.'S REPLY TO DEFENDANT GOOGLE INC.'S RESPONSE TO PERFECT 10'S STATEMENT REGARDING THE STATUS OF ITS MOTION FOR EVIDENTIARY AND OTHER SANCTIONS; REQUEST TO STRIKE RESPONSE [DECLARATION OF JEFFREY N. MAUSNER IN SUPPORT THEREOF SUBMITTED SEPARATELY HEREWITH] Date: None Set Time: None Set Place: Courtroom 550, Courtroom of the Honorable Stephen J. Hillman Discovery Cut-Off Date: None Set Pretrial Conference Date: None Set Trial Date: None Set Case No. CV 04-9484 AHM (SHx) Before Judge Stephen J. Hillman

GOOGLE INC., a corporation, Defendants.

Plaintiff Perfect 10, Inc.'s Reply To Defendant Google Inc.'s Response To Perfect 10's Statement Regarding The Status Of Its Motion For Evidentiary And Other Sanctions; Request To Strike Response

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I.

GOOGLE'S IMPROPER AND UNTIMELY RESPONSE SHOULD BE STRICKEN. Defendant Google Inc. ("Google") has filed a Response to Perfect 10, Inc.'s

Statement Regarding the Status of Perfect 10's Motion for Evidentiary and Other Sanctions (Docket No. 856, publicly filed version) (the "Response"), that is untimely, improper, and incorrect. This Court's January 27, 2010 Minute Order (Docket No. 759) required the parties to telephonically meet and confer regarding Perfect 10's pending Motion for Evidentiary and Other Sanctions (the "Sanctions Motion"), and ordered "each side [to] file a two page statement setting forth the status of the matter ... within 2 business days following conclusion of the meet and confer process." The parties finally met and conferred on April 19, 2010.1 Perfect 10 thereafter timely filed its two page Statement Regarding the Status of its Motion for Evidentiary and Other Sanctions (Docket No. 854) ("Perfect 10's Statement") on April 21, 2010. Google did not comply with the Court's January 27, 2010 Minute Order, however. Instead, on April 23, 2010, four business days after the meet and confer, Google filed its Response ­ a five-page document, accompanied by a separate declaration of counsel, plus exhibits, totaling 26 additional pages (Docket No. 856 and attachments thereto). Accordingly, this Court should strike Google's overlong and untimely Response, as well as the accompanying declaration, for failure to comply with the Court's January 27, 2010 Order. At the very least, if the Court chooses to consider Google's Response, it should also consider Perfect 10's reply to the Response, set forth below. As explained below, Google's Response is replete with misstatements

Google's delay in meeting and conferring is discussed in the Second Status Report, Docket Nos. 851, 851-1, 851-2, 851-3, 851-4; and in the Reply, Docket No. 853.
-1Plaintiff Perfect 10, Inc.'s Reply To Defendant Google Inc.'s Response To Perfect 10's Statement Regarding The Status Of Its Motion For Evidentiary And Other Sanctions; Request To Strike Response

1

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and demonstrably incorrect representations.2 None of Google's incorrect representations, however, undermines the fact that Google admittedly has not produced documents that are the subject of the Sanctions Motion. For this very reason, the Court should immediately schedule a telephonic status conference so that it may order Google to produce these documents. II. GOOGLE, AND NOT PERFECT 10, HAS MISREPRESENTED THE SUBSTANCE OF THE MEET AND CONFER PROCESS. Google mistakenly asserts that Perfect 10 "claims that during the parties' April 19 telephonic meet and confer, Google's counsel admitted that Google did not produce a number of categories of documents and violated various discovery orders." Response at 1.3 Google misstates the language of Perfect 10's Statement. Perfect 10's Statement actually reads as follows: "Google has conceded during the meet-and-confer process that it has not produced numerous documents." Perfect 10's Statement at 1 (emphasis added). There is no mention of the April 19 telephonic meet and confer in this sentence. In fact, Google's concessions are found in the February 16, 2010 letter from Google attorney Rachel Herrick Kassabian to Perfect 10 attorney Jeffrey N. Mausner (the "February 16 Letter").4 Google also conceded at the January 15, 2010 hearing on Perfect 10's Sanctions Motions that it had not produced a large number of documents. Two of Google's concessions, made in the February 16 Letter, are explained below: 1)
2

Google concedes that it has not produced all notices of termination:

Perfect 10 does not intend to address every incorrect representation set forth in Google's Response. Rather, Perfect 10 focuses on certain critical misstatements. 3 Google attempts to make an issue of the fact that the representations set forth in Perfect 10's Statement were "unsupported by any declaration." Response at 1. Perfect 10 did not submit a declaration with Perfect 10's Statement because the Court's January 27, 2010 Minute Order specifically limited both sides' submissions to a two-page status report. 4 The February 16 Letter is attached as Exhibit A to the Declaration of Jeffrey N. Mausner in support of this Reply, submitted separately herewith (the "Mausner Decl."). The February 16 Letter is also found at Docket No. 851-2, at 4-8.
-2Plaintiff Perfect 10, Inc.'s Reply To Defendant Google Inc.'s Response To Perfect 10's Statement Regarding The Status Of Its Motion For Evidentiary And Other Sanctions; Request To Strike Response

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In its May 22, 2006 Order, this Court ordered Google to produce "[a]ll notices of termination issued by Google as a result of alleged intellectual property violations." (Docket No. 163, at 5:15-20, concerning Document Request Nos. 26 and 27, as modified). Even though this Court ordered Google to produce all such notices almost four years ago, the February 16 Letter states that: (1) Google need not "supplement its prior production of DMCA termination notices for AdSense" because production of such notices is "unnecessary at this stage;" (2) Google does not have to produce termination notices for Blogger because production of such documents "would be unnecessarily duplicative of Google's production of DMCA processing spreadsheets;" and (3) Google need not produce termination notices pertaining to additional Google products and services because such documents are "irrelevant." February 16 Letter at 3. Google thus admits that it possesses responsive documents which it has not produced; it simply contends that it need not produce such documents, notwithstanding this Court's May 22, 2006 Order. Google's prior submissions further confirm that it has failed to produce "[a]ll notices of termination issued by Google as a result of alleged intellectual property violations." First, many of the documents identified by Google as "termination notices" are either Perfect 10 DMCA notices (see, e.g., Bates Nos. GGL 4818-4824 and GGL 4906-4908, 4910), error messages (see, e.g., Bates Nos. GGL 4836-4838, 4843, and 4847-4849), or reinstatement notices (see, e.g., Bates Nos. GGL 52438 and 52472). See Mausner Decl. ¶4, Exh. C. Second, none of the documents identified by Google as "termination notices" are actually termination notices dated after May 2006. If Google has not issued any actual termination notices after May 2006, any contention that Google has implemented a repeat infringer policy is simply false. Third, none of the documents identified by Google as "termination notices" resulted from DMCA notices submitted to Google by third parties other than Perfect 10. Consequently, Google cannot possibly have produced all notices of termination as ordered by the Court. Mausner Decl. ¶4, Exh. C.
-3Plaintiff Perfect 10, Inc.'s Reply To Defendant Google Inc.'s Response To Perfect 10's Statement Regarding The Status Of Its Motion For Evidentiary And Other Sanctions; Request To Strike Response

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It is far too late in this action for Google to raise the assertions set forth in the February 16 Letter. This Court ordered Google to produce all notices of termination almost four years ago. "All" means "all." This Court should not allow Google to continue to withhold notices of termination, as evidenced by its February 16 Letter discussed above. Instead, this Court should order Google to immediately produce "all notices of termination issued by Google as a result of alleged intellectual property violations," as Google was ordered to do almost four years ago. 2) Google concedes that it has not produced all third-party DMCA notices: Google represented, both in its response to Request for Production No. 196 and in its opposition to a motion to compel brought by Perfect 10, that it had produced "all notices received by Google regarding intellectual property violations." Although Google made this representation more than three years ago, Google now concedes, in the February 16 Letter, that it has failed to produce all such notices. Instead, Google asserts that: (1) it need not produce additional third-party DMCA notices for Web Search, Image Search, AdWords, and AdSense because further production "is unnecessary at this stage;" (2) it need not produce third-party DMCA notices for Blogger because production of such documents "would be unnecessarily duplicative of Google's production of DMCA processing spreadsheets;" and (3) it need not produce third-party DMCA notices pertaining to other Google products and services because such documents are "irrelevant." February 16 Letter at 3. In fact, such documents would be highly relevant if they do not match other disjointed documents (which Google inaccurately describes as spreadsheets) that Google has produced and described as "complete." Google cannot properly assert that it need not be required to produce all thirdparty DMCA notices where, as here, Google previously represented that it had already produced all notices it received regarding intellectual property violations. Here, as with the termination notices discussed above, "all" means "all." This Court should order Google to immediately produce "all notices received by Google
-4Plaintiff Perfect 10, Inc.'s Reply To Defendant Google Inc.'s Response To Perfect 10's Statement Regarding The Status Of Its Motion For Evidentiary And Other Sanctions; Request To Strike Response

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regarding intellectual property violations" ­ including all third-party DMCA notices ­ as Google promised in its response to Request for Production No. 196. That Google admittedly has failed to produce documents responsive to Court Orders regarding discovery is further demonstrated by Google's own contentions in the Response itself. Google now asserts that any additional "DMCA-related documents" that Google would produce "are merely cumulative of categories of documents Google previously produced." Response at 4:28-5:1 (emphasis added). This assertion constitutes a startling admission ­ Google now concedes that it possesses documents that it has not produced that are responsive to categories of documents requested by Perfect 10 for which Google already has produced documents. If Google has produced some responsive documents, why has it failed to produce all such responsive documents? Moreover, why has Google misled both Perfect 10 and this Court into believing that all such responsive documents had been produced? The existence of what Google describes as "cumulative" documents is particularly relevant to the question of whether Google has properly terminated repeat infringers. In fact, "cumulative" documents are the very crux of this issue. If Google has received only one or two DMCA notices regarding an alleged infringer such as Rapidshare, then Rapidshare may not be a repeat infringer. By contrast, if Google has received 20 notices regarding Rapidshare, the cumulative total of such notices, and Google's failure to act upon them, would clearly establish that Rapidshare is a repeat infringer, and that Google is ineligible for DMCA safe harbor because it did not terminate Rapidshare. According to Google's perverse logic, however, it need not produce all of the DMCA notices it has received regarding repeat infringers such as Rapidshare because such notices are "merely cumulative." Google's outrageous admission that it has failed to produce documents responsive to Perfect 10's requests for production and this Court's discovery orders, because such documents are "merely cumulative," thus provides a further basis for the Court to
-5Plaintiff Perfect 10, Inc.'s Reply To Defendant Google Inc.'s Response To Perfect 10's Statement Regarding The Status Of Its Motion For Evidentiary And Other Sanctions; Request To Strike Response

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immediately order Google to comply with its discovery obligations. III. THE TESTIMONY OF DR. ERIC SCHMIDT, GOOGLE'S CEO, IS HIGHLY RELEVANT TO THE SANCTONS MOTION AND GOOGLE'S FAILURE TO COMPLY WITH COURT-ORDERED DISCOVERY. Google further asserts, without evidence or support, that the testimony of Google CEO Eric Schmidt in the lawsuit brought against Google and YouTube by Viacom (the "Viacom Action"), including testimony that Dr. Schmidt's practice was to delete or otherwise cause the emails he had read to go away as quickly as possible, has no relevance here. Response at 2. Perfect 10 has already explained how Dr. Schmidt's testimony is relevant to various issues in this case, including: (i) Google's completely inadequate response to Requests for Production Nos. 128131, which mention Dr. Schmidt by name and are the subject of Judge Matz's May 13, 2008 Order; and (ii) the contradiction between Dr. Schmidt's testimony and the Declaration of Kris Brewer, Google's in-house counsel, upon which this Court relied in denying Perfect 10's Motion for a Document Preservation Order. See Perfect 10's Statement at 2. Moreover, documents from the Viacom Action, released as recently as April 2010, demonstrate, among other things, that Google was aware of the value of pirated content and that Google contemplated "relaxing its copyright standards" to increase its revenues. See, e.g., Mausner Decl. ¶3, Exh. B ("YouTube's business model is completely sustained by pirated content. They are at the mercy of companies not responding with DMCA requests."); id. ("Potential results of changing copyright enforcement policies." . . ."Higher traffic, higher profile as destination site."). These recently revealed documents were responsive to multiple requests for production propounded to Google by Perfect 10. Nevertheless, Google has never produced any such documents to Perfect 10 in this action.
-6Plaintiff Perfect 10, Inc.'s Reply To Defendant Google Inc.'s Response To Perfect 10's Statement Regarding The Status Of Its Motion For Evidentiary And Other Sanctions; Request To Strike Response

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IV.

GOOGLE'S RESPONSE INCLUDES NUMEROUS OTHER INCORRECT STATEMENTS. The incorrect statements set forth in Google's Response are not limited to

those discussed in Sections II and III, above. Rather, the Response is replete with demonstrably incorrect statements, three of which are addressed below: 1) Google incorrectly asserts that, at the April 5, 2010 hearing on Perfect 10's Motion for Preliminary Injunction, Judge Matz "confirmed that while he was aware of the dispute, he did not intend to defer resolution of the DMCA Motions pending a ruling on P10's sanctions motion." Response at 4:1-4. In support of this incorrect assertion, Google cites to the transcript of the April 5, 2010 hearing, at 25:15-16. Id. As may be seen by a review of this portion of the hearing transcript, Judge Matz said no such thing. Rather, in response to a question from Perfect 10's counsel as to whether Judge Matz wanted to be provided with a copy of the correspondence showing that Google had refused to meet and confer with Perfect 10, Judge Matz said that he did not: THE COURT: All right. What's the status of your discovery disputes over obtaining the DMCA notices? MR. MAUSNER: It's still pending before Judge Hillman. THE COURT: No, but isn't it supposed to be worked out in good faith between the two sides? MR. MAUSNER: We've asked them to meet and confer with us. We want to have a telephone conversation with them, and we have not been able to have a telephone conversation with them yet. THE COURT: Because of why? MR. MAUSNER: Because they won't talk to us on the telephone, basically. They keep sending e-mails. They canceled a telephone conference we set up. We tried to call them, left messages and never got a call back.
-7Plaintiff Perfect 10, Inc.'s Reply To Defendant Google Inc.'s Response To Perfect 10's Statement Regarding The Status Of Its Motion For Evidentiary And Other Sanctions; Request To Strike Response

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THE COURT: Well, let me just put it this way. Judge Hillman will be very pleased to hear that. MR. MAUSNER: Yeah, we submitted ­ as one of the exhibits, I've submitted the correspondence that's taken place between us regarding this. Do you want me to get you that? THE COURT: No, I don't. I don't. All right. Have a seat, please. Mausner Decl. ¶5, Exh. D (Transcript of April 5, 2010 Hearing at 24:20 - 25:16). Google's assertion regarding Judge Matz's intentions are thus unsupported and incorrect. 2) Google incorrectly asserts that Judge Matz informed the parties at the hearing on April 5, 2010 that "he wants no further submissions" on Google's DMCA Summary Judgment Motions. Response at 4, citing Transcript of April 5, 2010 Hearing at 51:21-25. Once again, Google is wrong. A review of the transcript demonstrates that Judge Matz's statement that "I don't want any further submissions" referred to Perfect 10's Motion for Preliminary Injunction and, in particular, to Google's counsel, Mr. Zeller, submitting information regarding the relationship between Google and Rapidshare in connection with the Preliminary Injunction Motion. Mausner Decl. ¶5, Exh. D (Transcript of April 5, 2010 Hearing at 51:18-22). Indeed, Judge Matz's very next words were that "I will take this motion [for Preliminary Injunction] under submission." Mausner Decl. ¶5, Exh. D (Transcript of April 5, 2010 Hearing at 51:23). Furthermore, the April 5, 2010 hearing was a hearing only on Perfect 10's Motion for Preliminary Injunction; it was not a hearing on Google's DMCA Summary Judgment Motions. See Minute Order dated April 5, 2010 (Docket No. 850) ("Proceedings: Plaintiff's Motion for Preliminary Injunction Against Google [772] (non-evidentiary)"; and attached Memorandum from Judge Matz re: "Perfect 10 v. Google, CV 04-9484--Questions for Hearing on Perfect 10's Motion for a Preliminary Injunction." Neither the Minute Order nor Judge Matz's Memorandum
-8Plaintiff Perfect 10, Inc.'s Reply To Defendant Google Inc.'s Response To Perfect 10's Statement Regarding The Status Of Its Motion For Evidentiary And Other Sanctions; Request To Strike Response

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states that the April 5, 2010 hearing is on Google's DMCA Summary Judgment Motions. (See Docket No. 850.) Google's assertion, once again, has no support. Google's incorrect assertion arises from the fact that Google is afraid of producing the documents that it has failed to produce, which are the subject of the Sanctions Motion, before Judge Matz rules on its DMCA Summary Judgment Motions. Those documents, including the "cumulative" DMCA notices, will disprove Google's right to an affirmative defense under the DMCA, because they will establish that Google did not suitably implement a repeat infringer policy and did not expeditiously remove or disable access to infringing materials. Judge Matz certainly would not reject the submission of clearly relevant documents which have been suppressed to this very date by Google. 3) Google mistakenly asserts that Perfect 10 "completely disavow[s] any claim to relief under Fed. R. Civ. P. 56(f)" in connection with Google's pending DMCA Motions. Response at 3. Once again, Google is wrong. Perfect 10 has specifically reserved the right to seek relief under Rule 56(f), to the extent that such relief is necessary or proper. See 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 (Docket No. 787). V. CONCLUSION. Google's incorrect assertions throughout its Response cannot obscure the fact that it admittedly has not produced the documents set forth in the Motion for Sanctions. Accordingly, this Court should order Google to produce those documents forthwith. Perfect 10 also requests that the Court re-examine the Sanctions Motion, decide the extent to which Google has violated Court Orders, and impose appropriate sanctions. Only by imposing such relief will this Court prevent Google from continuing to disobey Court Orders, resulting in a breakdown of the discovery process.
-9Plaintiff Perfect 10, Inc.'s Reply To Defendant Google Inc.'s Response To Perfect 10's Statement Regarding The Status Of Its Motion For Evidentiary And Other Sanctions; Request To Strike Response

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Dated: April 27, 2010

LAW OFFICES OF JEFFREY N. MAUSNER

Jeffrey N. Mausner By: __________________________________
Jeffrey N. Mausner Attorney for Plaintiff Perfect 10, Inc.

- 10 Plaintiff Perfect 10, Inc.'s Reply To Defendant Google Inc.'s Response To Perfect 10's Statement Regarding The Status Of Its Motion For Evidentiary And Other Sanctions; Request To Strike Response

Exhibit F

Exhibit G

Exhibit H