Perfect 10 Inc v. Google Inc et al

Filing 885

STATEMENT of Status of DMCA-Related Discovery Issues in P10's 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 Statement Regarding the Status of DMCA-Related Discovery Issues in P10's Motion for Evidentiary and Other Sanctions in Response to the Court's Request at the May 27, 2010 Hearing filed by Counter Claimant Google Inc, Defendant Google Inc. (Attachments: #1 Declaration of Bradley R. Love in Support of Google Inc.'s Statement Regarding the Status of DMCA-Related Discovery Issues in P10's Motion for Evidentiary and Other Sanctions)(Kassabian, Rachel)

1 QUINN EMANUEL URQUHART & SULLIVAN, LLP Michael T. Zeller (Bar No. 196417) [e-mail] 865 South Figueroa Street, 10th Floor Los Angeles, California 90017-2543 Telephone: [phone] Facsimile: [phone] Charles K. Verhoeven (Bar No. 170151) [e-mail] 50 California Street, 22nd Floor San Francisco, California 94111 Rachel Herrick Kassabian (Bar No. 191060) [e-mail] 555 Twin Dolphin Drive, 5th Floor Redwood Shores, California 94065 Attorneys for Defendant GOOGLE INC. PERFECT 10, INC., a California corporation, Plaintiff, vs. GOOGLE INC., a corporation; and DOES 1 through 100, inclusive,
01980.51320/3517408.5

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CASE NO. CV 04-9484 AHM (SHx) DISCOVERY MATTER GOOGLE INC.'S STATEMENT REGARDING THE STATUS OF DMCA-RELATED DISCOVERY ISSUES IN P10'S MOTION FOR EVIDENTIARY AND OTHER SANCTIONS IN RESPONSE TO THE COURT'S REQUEST AT THE MAY 27, 2010 HEARING [Declaration of Bradley R. Love filed concurrently] 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

Defendants . AND COUNTERCLAIM

Case No. CV 04-9484 AHM (SHx) GOOGLE INC.'S STATEMENT REGARDING THE STATUS OF DMCA-RELATED DISCOVERY ISSUES

1

Pursuant to the Court's request at the May 27, 2010 telephonic hearing,

2 Google Inc. respectfully submits this Statement regarding the status of the DMCA3 related discovery issues Perfect 10, Inc. ("P10") raised after the hearing on its 4 Motion for Evidentiary and Other Sanctions (Dkt. No. 633) ("Sanctions Motion"). 5 I. 6 STATUS OF THE PARTIES' MEET AND CONFER NEGOTIATIONS On May 29, Google requested that P10 agree to further meet and confer

7 regarding P10's DMCA discovery demands upon issuance of Judge Matz's 8 forthcoming final order on Google's motions for summary judgment re: entitlement 9 to DMCA safe harbor ("DMCA Motions"). Declaration of Bradley R. Love ("Love 10 Decl."), filed concurrently, Ex. E (5/29/10 email). P10 refused to meet and confer, 11 insisting that Google comply with all of P10's demands immediately. Id. 12 II. 13 14 15 THIS COURT SHOULD DEFER RULING ON THE DISCOVERY DEMANDS IN P10'S SANCTIONS MOTION PENDING THE FORTHCOMING ORDER ON GOOGLE'S DMCA MOTIONS. As the Court is aware, on May 6, 2010, Judge Matz ruled on Google's DMCA

16 Motions, issuing a tentative written order to the parties and scheduling a hearing for 17 May 10, 2010. At that hearing, Judge Matz confirmed that the purpose of the 18 hearing was to "address any factual errors that may have crept into [the tentative 19 order] or material omissions that reflect or would consist of facts that should have 20 been included." Love Decl., Ex. D (5/10/10 Hearing Transcript at 4:24-5:1). Judge 21 Matz's forthcoming final order on the DMCA Motions will provide the parties and 22 this Court with the necessary guidance regarding the scope of further DMCA-related 23 discovery (if any) to be exchanged this case. A ruling on DMCA discovery issues 24 prior to the imminent issuance of the DMCA Order would be a waste of resources, 25 since any such ruling necessarily will have to be revisited upon issuance of the 26 27 28
01980.51320/3517408.5

Case No. CV 04-9484 AHM (SHx) -1GOOGLE INC.'S STATEMENT REGARDING THE STATUS OF DMCA-RELATED DISCOVERY ISSUES

1 DMCA Order to determine which portions are mooted by that Order.1 Google 2 suggests that upon issuance of the DMCA Order, the parties meet and confer within 3 ten days regarding the impact of the DMCA Order upon P10's DMCA discovery 4 demands. The parties could then submit a Joint Statement to this Court outlining 5 which of P10's categories of requested DMCA discovery (if any) the parties agree 6 are still relevant for production. 7 As for P10's claim that it will be prejudiced if this Court does not rule on its 8 Sanctions Motion before Judge Matz rules on the DMCA Motions, this is a non9 starter because the DMCA Motions have been fully argued and submitted and Judge 10 Matz has already ruled ­ the parties are merely awaiting his final written order. 11 Moreover, P10 cannot use any additional documents it might obtain to supplement 12 its briefing on the DMCA Motions, given (1) its failure to file a Rule 56(f) motion 13 with Judge Matz,2 (2) its filing of its own cross-motion for summary judgment on 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
01980.51320/3517408.5

See Hanni v. American Airlines, 2009 WL 1505286, *7 (N.D. Cal. May 27, 2009) (staying discovery pending resolution of a dispositive motion when "the pending motion is potentially dispositive of the entire case (or at least of the issue at which discovery is directed)"); Pabst Brewing Co., Inc. v. Corrao, 176 F.R.D. 552, 561 (E.D. Wis. 1997) (dismissing as moot discovery motions regarding claims decided as a matter of law). 2 See Brae Transp., Inc. v. Coopers & Lybrand, 790 F.2d 1439, 1443 (9th Cir. 1986) ("Failure to comply with the requirements of Rule 56(f) is a proper ground for denying discovery and proceeding to summary judgment."); see also Google's Surreply to P10's Sanctions Motion (Dkt. No. 706) ("Surreply") at 17-18 (discussing P10's waiver of Rule 56(f)); Google's Opposition to P10's Request for a Telephonic Conference (Dkt. No. 755) at 2-3(same); Google's Response to P10's Statement of Clarification regarding Rule 56(f) (Dkt. No. 846) at 1-2 (same). Nor did P10 raise even the remotest suggestion at either the April 5 or May 10 hearings that P10 needed additional discovery to oppose the DMCA Motions, or otherwise request that Judge Matz postpone ruling on the DMCA Motions pending further discovery. Love Decl. ¶ 6. Plainly, P10 is improperly using its Sanctions Motion to "hedge its bets" in the event the DMCA Order is not in its favor.
Case No. CV 04-9484 AHM (SHx) -2GOOGLE INC.'S STATEMENT REGARDING THE STATUS OF DMCA-RELATED DISCOVERY ISSUES

1

1 DMCA issues in July 2009,3 and (3) Judge Matz's express instruction that the 2 parties not submit any further briefing on the DMCA Motions or P10's Second 3 Preliminary Injunction.4 4 III. 5 6 7 SHOULD THIS COURT WISH TO ISSUE A FINAL RULING ON P10'S SANCTIONS MOTION PRIOR TO ISSUANCE OF THE DMCA ORDER, THE MOTION SHOULD BE DENIED. The focus of P10's Sanctions Motion was, as its title indicates, a demand for

8 evidentiary sanctions. Once it became clear that the Court would not be issuing 9 sanctions, P10 refocused its demand, asking that the Court order certain categories 10 of documents produced. Both of P10's demands should be rejected, and its 11 Sanctions Motion denied in its entirety. For the Court's convenience and in light of 12 the voluminous materials submitted on P10's Sanctions Motion, summarized below 13 are the issues to be decided along with references to where in the record the Court 14 may find the corresponding arguments and evidence. 15 16 A. As This Court Has Already Found, Sanctions Are Not Warranted. This Court has already tentatively ruled that P10's demand for sanctions

17 should be denied. See Love Decl., Ex. A (1/15/10 Hearing Transcript at 43:2018 44:10) ("the more I hear the less comfortable I would be today recommending very 19 serious ­ extremely serious sanctions ­ evidentiary sanctions...and it seems to me 20 that all I really need to do is rule on the evidentiary sanctions motion, which at 21 this point obviously I would deny.") (emp h. added); id. (1/15/10 Hearing Transcript 22 23 24 25 26 27 28
01980.51320/3517408.5

See Docket No. 436; see also Sullivan v. City of Springfield, 561 F.3d 7, 16 (1st Cir. 2009) (plaintiffs could not argue that summary judgment was premature when "they affirmatively requested that the court resolve the case on the existing evidence"); Filiatrault v. Comverse Tech., Inc., 275 F.3d 131, 138 (1st Cir. 2001) (filing a cross-motion for summary judgment "almost invariably indicates that the moving party was not prejudiced by a lack of discovery"). 4 Love Decl., Ex. C (4/5/10 Hearing Transcript at 25:15 & 51:21-25).
Case No. CV 04-9484 AHM (SHx) -3GOOGLE INC.'S STATEMENT REGARDING THE STATUS OF DMCA-RELATED DISCOVERY ISSUES

3

1 at 101:22-102:14 ("based on what I have read and heard, I am not left with the 2 impression that Google has violated a Court Order") (emph. added); id. Ex. B 3 (1/27/10 Order) ("the Court reiterates its tentative conclusion that Evidentiary 4 Sanctions are not appropriate at this juncture") (emph. added). Google requests 5 that the Court adopt its tentative order denying sanctions as the final order of this 6 Court.5 7 8 9 10 B. P10's Demand For Additional DMCA Discovery Should Be Denied Because The Additional DMCA Documents P10 Seeks Were Either (1) Never Requested or (2) Already Produced. Following the January 15, 2010 hearing on P10's Sanctions Motion, the

11 parties met and conferred regarding three specific categories of DMCA documents 12 P10 sought: (1) DMCA logs, (2) DMCA termination notices, and (3) third-party 13 DMCA notices. See Declaration of Jeffrey Mausner in support of P10's January 26, 14 2010 Request for a Telephonic Conference (Dkt. No. 750), Ex. 1 (1/22/10 email).6 15 16 17 18 19 20 21 22 23 24 25 26 27 28
01980.51320/3517408.5

See also Google's Opposition to P10's Sanctions Motion (Dkt. No. 647) ("Opp.") at 1-5 (P10 must establish (inter alia) (1) a violation of a court order by Google, (2) resulting prejudice to P10, and (3) satisfaction of other factors, including a demonstration that lesser sanctions are unavailable, and it has not); Surreply at 2 (P10 has not addressed, much less met, the standard for issuing evidentiary sanctions.). 6 P10's Sanctions Motion took issue with four additional categories of documents that P10 claimed were covered by prior discovery requests, but following the January 15, 2010 hearing, P10 dropped those four categories and did not press them further during the parties' meet and confer. Even had P10 not dropped them, Google has already produced non-privileged, responsive documents in these four categories, and has provided the Court with samples of those produced documents in a binder handed up at the January 15, 2010 hearing: (1) communications with the "owners" of the websites listed in Request No. 29 (see Surreply at 10, Declaration of Rachel Herrick Kassabian in Support of Google's Surreply (Dkt. No. 645) ("Kassabian Surreply Decl.") ¶ 2, Reply Declaration of Norman Zada in support of P10's Sanctions Motion (Dkt. No. 659) at ¶ 11); (footnote continued) Case No. CV 04-9484 AHM (SHx) -4GOOGLE INC.'S STATEMENT REGARDING THE STATUS OF DMCA-RELATED DISCOVERY ISSUES

5

1 As P10 acknowledges in its Sanctions Motion, none of these documents relates to 2 infringements claimed by P10--rather, P10 believes they are relevant to 3 determining whether Google has reasonably implemented an appropriate repeat 4 infringer policy. See Sanctions Motion at 22. 5 As previously briefed and argued, P10's demand for these three categories of 6 documents should be denied, because (1) P10 has not even requested them via Rule 7 34, (2) Google has already produced them, or (3) both. The following chart directs 8 the Court to where in the parties' briefing the Court may find the arguments and 9 evidence supporting denial of these discovery demands (grouped by the Google 10 products or services at issue):7 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
01980.51320/3517408.5

(2) documents related to Google's repeat infringer policies (see Opp. at 8-9, Surreply at 11, Declaration of Rachel Herrick Kassabian in support of Google's Opp. (Dkt. No. 719) ("Kassabian Decl.") ¶¶ 16, 26); (3) reports and studies pertaining to certain custodians (see Opp. at 11, Surreply at 12, Kassabian Decl. ¶ 31); and (4) board meeting minutes discussing copyright infringement, misappropriatio n of rights of publicity, or trademark infringement in connection with adult content (see Opp. at 10-11, Kassabian Decl. ¶ 30). 7 Blogger is listed separately because as the Court recognized at the January 15, 2010 hearing, P10 did not add its Blogger claims to the case until July 2008, and never served discovery requests directed to Blogger seeking these categories of documents. See Love Decl., Ex. A (1/15/10 Hearing Transcript at 142:15-18) (The Court: "It's just inconceivable from what I know about the case that prior to Blogger being formally added to the case, that Google was on any kind of notice that anything other than Google's Search was the nature of the case."); id. at 33:2-4) (The Court: "but you've never even formally requested Blogger DMCA notices once Blogger has been in the case, and you certainly have not moved for them"). See also Kassabian Decl., Ex. Q p. 116 (7/14/08 Hearing Transcript on P10's Motion for Leave to Amend its Complaint to Add Blogger Claims, at 18:6-21 (Mr. Mausner: "I don't know if [the new Blogger discovery P10 intends to serve is] going to be exactly the same. We are going to take discovery regarding Blogger, but it depends on what we need obviously.")); Surreply Kassabian Decl., Ex. C p. 14 (footnote continued) Case No. CV 04-9484 AHM (SHx) -5GOOGLE INC.'S STATEMENT REGARDING THE STATUS OF DMCA-RELATED DISCOVERY ISSUES

1 2 3

Categories of DMCA-Related Discovery Sought by P108 WEB SEARCH, IMAGE SEARCH, ADSENSE Already produced. 6; Kassabian Decl. ¶¶ 12, 16 & 17; Surreply Kassabian Decl. ¶ 3; Love Decl., Ex. A (1/15/10 Hearing Transcript at 51:9-22 ("if your Honor has any questions whatsoever about any of the representations in any of the papers about what documents Google produced in response to each of these categories, this courtesy binder shows sample documents for each of that Perfect 10 accuses," including DMCA logs)). BLOGGER Never requested and already See Opp. at 7; Surreply at 6; Kassabian Decl. ¶¶ 12, 16 & 17; Surreply Kassabian Decl. ¶ 3; Love Decl., Ex. A (1/15/10 Hearing Transcript at 102:12-14 (The Court: "I don't think Blogger discovery has been propounded based on what's been quoted to me and the excerpts that I have seen of the discovery and the Orders."), 141:24-142:5 ("Even though Blogger wasn't in the case... log in August [2008,] only one month after Perfect 10 was granted leave to add its Blogger claims and before Perfect 10

4 (1) DMCA logs 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

See Opp. at 5-8; Surreply at 2- produced.

the, I believe, seven categories Google produced its Blogger

(4/14/08 Hearing Transcript on P10's prior Motion to Compel at 33:13-17 (Mr. 26 Mausner requesting only Google's "DMCA log for search") (emph. added)). 8 See Declaration of Jeffrey Mausner in support of P10's January 26, 2010 27 Request for a Telephonic Conference (Dkt. No. 750), Ex. 1 (1/22/10 email). 28
01980.51320/3517408.5

Case No. CV 04-9484 AHM (SHx) -6GOOGLE INC.'S STATEMENT REGARDING THE STATUS OF DMCA-RELATED DISCOVERY ISSUES

1 2 (2) Termination 3 notices 4 5 6 7 8 9 10 11 12 13 14 15 16 (3) Third-party 17 DMCA notices 18 19 20 21 22 23 24 25 26 27 28
01980.51320/3517408.5

even requested it.") & 51:9-22). Already produced. See Opp. at 10; Surreply at 9; Kassabian Decl. ¶ 25; Surreply Kassabian Decl. ¶ 4; Love Decl., Ex. A (1/15/10 Hearing Transcript at 62:1419 (The Court: "But they have turned over termination notices. They have turned...over correspondence with the certain webmasters. They understand their duty is continuing until the day of trial.") & 51:9-22). Never requested and already Never requested. produced. See Opp. at 9-10; Kassabian Decl. ¶¶ 12, 16 & 17, Ex. J; Love Decl., Ex. A (1/15/10 Hearing Transcript at 40:1620 ("Perfect 10 has not served a single document request asking for DMCA notices. ... They never asked. It's never been ordered. [But] Google has voluntarily produced lots
Case No. CV 04-9484 AHM (SHx) -7GOOGLE INC.'S STATEMENT REGARDING THE STATUS OF DMCA-RELATED DISCOVERY ISSUES

Never requested. See Opp. at 10 n. 13; Surreply at 10; Love Decl., Ex. A (1/15/10 Hearing Transcript at 102:12-14 (The Court: "I don't think Blogger discovery has been propounded based on what's been quoted to me and the excerpts that I have seen of the discovery and the Orders.")).

See Opp. at 7, 9-10; Surreply at 7-9; Kassabian Decl. ¶¶ 20-23, Ex. Q; Love Decl., Ex. A (1/15/10 Hearing Transcript at 33:2-4 (The Court: "But you've never even formally requested Blogger DMCA notices once Blogger has been in the case. And you certainly have not moved for them.")).

1 2 3 4

of DMCA notices.") & 51:922). For the foregoing reasons, should the Court be inclined to issue a final ruling

5 on the DMCA discovery demands encompassed within P10's Sanctions Motion 6 prior to issuance of Judge Matz's DMCA Order, Google respectfully requests that 7 P10's Sanctions Motion be denied in its entirety. 8 9 DATED: June 1, 2010 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
01980.51320/3517408.5

QUINN EMANUEL URQUHART & SULLIVAN, LLP

By Rachel Herrick Kassabian Attorneys for Defendant GOOGLE INC.

Case No. CV 04-9484 AHM (SHx) -8GOOGLE INC.'S STATEMENT REGARDING THE STATUS OF DMCA-RELATED DISCOVERY ISSUES