Perfect 10 Inc v. Google Inc et al

Filing 886

REQUEST to Strike AND BRIEF RESPONSE TO DEFENDANT GOOGLE INC.'S STATEMENT REGARDING THE STATUS OF DMCA-RELATED DISCOVERY ISSUES IN PERFECT 10'S MOTION FOR EVIDENTIARY AND OTHER SANCTIONS; Statement (Motion related), Statement (Motion related), Statement (Motion related), Statement (Motion related) #885 filed by Plaintiff Perfect 10 Inc. (Mausner, Jeffrey)

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Jeffrey N. Mausner (State Bar No. 122385) David N. Schultz (State Bar No. 123094) Law Offices of Jeffrey N. Mausner Warner Center Towers 21800 Oxnard Street, Suite 910 Woodland Hills, California 91367-3640 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, Case No.: CV 04-9484 AHM (SHx) Before Judge Stephen J. Hillman PLAINTIFF PERFECT 10, INC.'S REQUEST TO STRIKE AND BRIEF RESPONSE TO DEFENDANT GOOGLE INC.'S STATEMENT REGARDING THE STATUS OF DMCA-RELATED DISCOVERY ISSUES IN PERFECT 10'S MOTION FOR EVIDENTIARY AND OTHER SANCTIONS Discovery Cut-Off Date: None Set Pretrial Conference Date: None Set Trial Date: None Set

GOOGLE INC., a corporation, Defendants.

Plaintiff Perfect 10's Request to Strike and Brief Response to Defendant Google Inc.'s Statement Regarding the Status of DMCA-Related Discovery Issues in Perfect 10's Motion for Evidentiary and Other Sanctions

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I.

GOOGLE'S IMPROPER AND UNSOLICITED STATEMENT SHOULD BE STRICKEN AND THIS COURT SHOULD RULE UPON PERFECT 10'S PENDING SANCTIONS MOTION WITHOUT CONSIDERING THE STATEMENT. Defendant Google Inc. ("Google") has filed an unsolicited Statement

Regarding the Status of DMCA-Related Discovery Issues in P10's Motion for Evidentiary and Other Sanctions (Docket No. 885) (the "Statement" or "Google's Statement") that is improper and incorrect. Without evidence or support, Google incorrectly contends that it is submitting the Statement "[p]ursuant to the Court's request at the May 27, 2010 telephonic hearing" on the status of Perfect 10's pending Motion for Evidentiary and Other Sanctions against Google (the "Sanctions Motion"). Statement at 1:1. This Court made no such request. On the contrary, this Court specifically stated that it would proceed to rule upon the Sanctions Motion as of June 1, 2010 unless the parties informed the Court that their "meet and confer" negotiations could lead to a resolution of certain discovery issues pertaining to the Sanctions Motion. This Court never requested that the parties file any further statements.1 The Court certainly did not grant Google permission to reargue the Sanctions Motion, as the Statement seeks to do. Google's Statement is nothing more than an improper and disguised surreply, which Google has no right to file without leave of Court. See Local Rule 7-10, Local Rule 37-2.3. Perfect 10 does not wish to burden the Court with the need to review further pleadings which correct the numerous errors and misstatements found in Google's Statement. Accordingly, this Court should strike Google's inappropriate and unsolicited Statement, and the accompanying declaration of Bradley R. Love (Docket No. 885-1), in their entirety.
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By contrast, when this Court wanted the parties to file statements regarding the status of the Sanctions Motion, it issued a written order to that effect. See this Court's January 27, 2010 Order (Docket No. 759).
Plaintiff Perfect 10's Request to Strike and Brief Response to Defendant Google Inc.'s Statement Regarding the Status of DMCA-Related Discovery Issues in Perfect 10's Motion for Evidentiary and Other Sanctions

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II.

IF THIS COURT CHOOSES TO CONSIDER GOOGLE'S STATEMENT, IT SHOULD GRANT PERFECT 10 LEAVE TO FILE AN APPROPRIATE RESPONSE. If this Court chooses to consider Google's Statement (and it should not, for all

of the reasons set forth in Section I, above), this Court at the very least should grant Perfect 10 leave to file an appropriate response. As discussed briefly below, Google's Statement is replete with misstatements and demonstrably incorrect assertions, in addition to Google's mistaken claim that this Court requested the filing of Google's Statement. For example: 1) Google incorrectly claims that "Judge Matz has already ruled" on its pending DMCA summary judgment motions. Statement at 2:9-10 (emphasis in original). In fact, as Judge Matz informed the parties at the May 10, 2010 hearing, his tentative ruling was in no way final. Moreover, as Google concedes, one of the purposes of the hearing was to "address any factual errors . . . or material omissions." Statement at 1:18-19. Perfect 10 specifically argued at the hearing that Judge Matz's tentative ruling contained critical factual errors regarding Google's processing of Perfect 10's DMCA notices and its processing of third-party DMCA notices (an issue critical to the determination of whether Google has suitably terminated repeat infringers, which is a prerequisite to DMCA safe harbor eligibility). Judge Matz likely would not have made these incorrect tentative findings had Google produced to Perfect 10 the documents that are the subject of the Sanctions Motion, including: (i) the "spreadsheet type" DMCA log required by Judge Matz's May 13, 2008 Order; (ii) all notices of termination of repeat infringers; and (iii) thousands of third-party DMCA notices. Perfect 10 is entitled to immediate production of these documents, before Judge Matz issues his ruling on the pending DMCA summary judgment motions. 2) Google incorrectly asserts that it has produced all notices of termination
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for Web Search, Image Search and AdSense. Statement at 7:2-15. In fact, Google
Plaintiff Perfect 10's Request to Strike and Brief Response to Defendant Google Inc.'s Statement Regarding the Status of DMCA-Related Discovery Issues in Perfect 10's Motion for Evidentiary and Other Sanctions

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has previously conceded that it has failed to produce "[a]ll notices of termination issued by Google as a result of alleged intellectual property violations," as required by this Court in its May 22, 2006 Order. Moreover, many of the documents identified by Google as "termination notices" are either Perfect 10 DMCA notices, error messages, or reinstatement notices. Finally, none of the documents identified by Google as "termination notices" resulted from DMCA notices sent by third parties other than Perfect 10. Consequently, Google cannot possibly have produced all notices of termination as ordered by the Court, and Google's contention that it has suitably implemented a repeat infringer policy is either false or unproven. See 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 (Docket No. 859), at 2:21-4:7. Google's Statement contains other demonstrably incorrect assertions, which Perfect 10 will be forced to address if this Court chooses to consider the Statement. Therefore, if this Court denies Perfect 10's Request to Strike Google's Statement, and instead chooses to consider the Statement, Perfect 10 respectfully requests that it be granted leave to file a full and complete Response to the Statement within 48 hours after this Court informs the parties that it will consider Google's Statement in connection with its ruling on the Sanctions Motion. Dated: June 1, 2010 Respectfully submitted, LAW OFFICES OF JEFFREY N. MAUSNER

/s/ David N. Schultz By: __________________________________ David N. Schultz Attorney for Plaintiff Perfect 10, Inc.

Plaintiff Perfect 10's Request to Strike and Brief Response to Defendant Google Inc.'s Statement Regarding the Status of DMCA-Related Discovery Issues in Perfect 10's Motion for Evidentiary and Other Sanctions

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