Perfect 10 Inc v. Google Inc et al

Filing 889

RESPONSE filed by Plaintiff Perfect 10 Incto Statement (Motion related), Statement (Motion related), Statement (Motion related), Statement (Motion related) #885 - PLAINTIFF PERFECT 10, INC.'S 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 (Attachments: #1 Declaration OF DAVID N. SCHULTZ IN SUPPORT OF PLAINTIFF PERFECT 10, INC.'S 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)(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 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 Honorable Stephen J. Hillman DECLARATION OF DAVID N. SCHULTZ IN SUPPORT OF PLAINTIFF PERFECT 10, INC.'S 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.

Declaration of David N. Schultz in Support of Perfect 10's Response to Google's Statement Regarding the Status of DMCA-Related Discovery Issues in Perfect 10's Motion for Evidentiary and Other Sanctions

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DECLARATION OF DAVID N. SCHULTZ I, David N. Schultz, declare as follows: I am a member of the State Bar of California and admitted to practice before this Court. I am a counsel of record for Plaintiff Perfect 10, Inc. ("Perfect 10") in this action. All of the matters stated herein are of my own personal knowledge, except where otherwise stated, and if called as a witness, I could and would testify competently thereto. I make this declaration in support of Perfect 10's Response To Defendant Google Inc.'s Statement Regarding The Status Of DMCARelated Discovery Issues In Perfect 10's Motion For Evidentiary And Other Sanctions, submitted separately herewith. 2. Attached hereto as Exhibit A are true and correct copies of excerpts from the transcript of the January 15, 2010 hearing before this Court on Perfect 10's Motion for Evidentiary and Other Sanctions Against Defendant Google Inc. and/or for the Appointment of a Special Master. Portions of the transcript are highlighted in yellow. 3. yellow. 4. Attached hereto as Exhibit C are true and correct copies of excerpts from the transcript of the May 10, 2010 hearing before Judge Matz on Google's DMCA Summary Judgment Motions. Portions of the transcript are highlighted in yellow. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct to the best of my knowledge. Executed on June 8, 2010 in Los Angeles County, California. Attached hereto as Exhibit B is a true and correct copy of this Court's January 27, 2010 Order (Docket No. 759). Portions of the Order are highlighted in

__________________________________ David N. Schultz
-1Declaration of David N. Schultz in Support of Perfect 10's Response to Google's Statement Regarding the Status of DMCA-Related Discovery Issues in Perfect 10's Motion for Evidentiary and Other Sanctions

Exhibit A

1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 APPEARANCES: COURT REPORTER: COURTROOM DEPUTY: TRANSCRIBER: SEE NEXT PAGE RECORDED; COURT SMART SANDRA BUTLER DOROTHY BABYKIN COURTHOUSE SERVICES 1218 VALEBROOK PLACE GLENDORA, CALIFORNIA [phone] UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION

PERFECT 10, INC.,

) ) ) PLAINTIFF, ) ) VS. ) ) ) GOOGLE, INC., ET AL., ) ) ) DEFENDANTS. ) ______________________________)

CASE NO. CV 04-9484-AHM(SHX) LOS ANGELES, CALIFORNIA JANUARY 15, 2010 (10:08 A.M. TO 12:44 P.M.) (1:08 P.M. TO 1:51 P.M.)

HEARING BEFORE THE HONORABLE STEPHEN J. HILLMAN UNITED STATES MAGISTRATE JUDGE

91740

PROCEEDINGS RECORDED BY ELECTRONIC SOUND RECORDING; TRANSCRIPT PRODUCED BY TRANSCRIPTION SERVICE.

2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ALSO PRESENT: FOR AMAZON.COM, ALEXA INTERNET: APPEARANCES: (CONTINUED) FOR THE PLAINTIFF: LAW OFFICES OF JEFFREY N. MAUSNER BY: JEFFREY N. MAUSNER ATTORNEY AT LAW 21800 OXNARD STREET SUITE 910 WOODLAND HILLS, CALIFORNIA 91367 FOR GOOGLE: QUINN EMANUEL URQUHART OLIVER & HEDGES BY: THOMAS NOLAN ATTORNEY AT LAW 865 SOUTH FIGUEROA STREET 10TH FLOOR LOS ANGELES, CALIFORNIA 90017 QUINN EMANUEL URQUHART OLIVER & HEDGES BY: RACHEL M. HERRICK KASSABIAN ATTORNEY AT LAW 555 TWIN DOLPHIN SUITE 560 REDWOOD SHORES, CALIFORNIA 94065 QUINN EMANUEL URQUHART OLIVER & HEDGES BY: BRAD LOVE ATTORNEY AT LAW 50 CALIFORNIA STREET SAN FRANCISCO, CALIFORNIA 94111 TOWNSEND TOWNSEND & CREW BY: MARK JANSEN ATTORNEY AT LAW TWO EMBARCADERO CENTER 8TH FLOOR SAN FRANCISCO, CALIFORNIA DR. NORMAN ZADA PRESIDENT, PERFECT 10 MELANIE POBLETE LEGAL ASSISTANT, PERFECT 10

94111

3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 INDE CASE NO. CV 04-9484-AHM(SHX) X JANUARY 15, 2010

PROCEEDINGS: 1. PERFECT 10'S MOTION FOR DOCUMENT PRESERVATION ORDER TO PREVENT FURTHER SPOLIATION OF EVIDENCE; 2. PERFECT 10'S MOTION FOR EVIDENTIARY SANCTIONS AGAINST GOOGLE; 3. GOOGLE'S MOTION FOR DOCUMENT PRESERVATION ORDER TO PREVENT FURTHER SPOLIATION OF EVIDENCE BY PERFECT 10; 4. BATES STAMP ISSUE

62 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NOTICES. THE COURT: YOU KNOW, HE'S NOT --

MR. MAUSNER: -- TO THIS LEGAL QUESTION, WHETHER IT IS A 56(F) MOTION. IF YOUR POSITION IS -THE POSITION IS THAT A 56(F) MOTION IS

THE COURT:

MY SIDE NEEDS ADDITIONAL DISCOVERY IN ORDER TO FAIRLY OPPOSE A SUMMARY JUDGMENT MOTION. MR. MAUSNER: OKAY. WELL, OUR POSITION IS WE

PROPOUNDED THAT DISCOVERY.

NOT ONLY DID WE PROPOUND IT, WE

ALSO -- WITH A LOT OF WORK, AS YOU KNOW, ON BOTH OF OUR PARTS, WE GOT ORDERS NOT ONLY FROM YOU, FROM JUDGE MATZ, ORDERING THEM TO PRODUCE THIS STUFF. AND IT TURNS OUT -- AND WE FOUND OUT A LOT OF THIS AFTER OUR -THE COURT: BUT THEY HAVE TURNED OVER TERMINATION

THEY HAVE TURNED -MR. MAUSNER: THE COURT: YOUR HONOR -THEY HAVE TURNED OVER THEY UNDERSTAND BUT IF

JUST A MINUTE.

CORRESPONDENCE WITH THE CERTAIN WEBMASTERS.

THEIR DUTY IS CONTINUING UNTIL THE DAY OF TRIAL.

THEY'RE NOT DOING IT FAST ENOUGH FOR YOU TO MEANINGFULLY OPPOSE THEIR SUMMARY JUDGMENT MOTION, THEN, IT SEEMS TO ME YOU NEED TO MAKE A RULE 56(F) MOTION. MR. MAUSNER: OKAY. IF THAT'S -- IF THAT IS

COVERED UNDER RULE 56(F).

MY UNDERSTANDING WAS 56(F) IS IF IT'S ALREADY BEEN

YOU'VE GOT TO PROPOUND MORE DISCOVERY.

84 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: WELL, AS TO THE FIRST PART OF THAT,

THEY'RE UNDER A CONTINUING OBLIGATION TO PRODUCE WHAT THEY'VE ALREADY BEEN ORDERED TO PRODUCE. OKAY.

GIVEN THE COLLOQUY -- SECONDLY, GIVEN THE COLLOQUY THAT WAS MADE BEFORE JUDGE MATZ WHERE HE ASKED, ARE YOU GOING TO PROPOUND NEW BLOGGER DISCOVERY, AND THE ANSWER WAS WE'LL SEE. BUT YOU DID NOT SAY, NEVERTHELESS, JUDGE, EVERYTHING BEFORE NOW APPLIES EQUALLY TO BLOGGER AND HEAR WHAT GOOGLE'S RESPONSE WOULD BE AND WHAT JUDGE MATZ'S IS. CAN'T JUST ORDER THAT. MR. MAUSNER: MATZ HAS -THE COURT: WELL, I THINK -- I CAN -I THINK YOU CAN, YOUR HONOR. JUDGE I

MR. MAUSNER: -- DELEGATED THIS -- EVERYTHING HERE IN THIS MOTION TO YOU. PRODUCE IT TO US. AND THEY HAVE AN OBLIGATION TO

AND THEY'RE STILL SITTING HERE AND THEY'RE

SAYING, THEY'RE NOT GOING -- WE'RE NOT GOING TO UPDATE IT, OR WE'RE GOING TO WAIT TWO YEARS TO UPDATE IT. TO US. MS. KASSABIAN: YOUR HONOR, WE'VE BEEN HERE BEFORE. THAT'S NOT FAIR

WE'RE NOT OBLIGATED TO PRODUCE ANYTHING THAT WASN'T REQUESTED. IF PERFECT 10 WANTS TO REQUEST SOMETHING, THEY

KNOW HOW TO DO IT. DR. ZADA: YOUR HONOR --

151 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DOROTHY BABYKIN ______________________________ FEDERALLY CERTIFIED TRANSCRIBER DOROTHY BABYKIN 2/20/10 ___________ DATED I CERTIFY THAT THE FOREGOING IS A CORRECT TRANSCRIPT FROM THE ELECTRONIC SOUND RECORDING OF THE PROCEEDINGS IN THE ABOVE-ENTITLED MATTER. CERTIFICATE

Exhibit B

Case 2:04-cv-09484-AHM-SH Document 759

Filed 01/27/10 Page 1 of 1

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL Case No. Title CV 04-9484-AHM (SHx) Perfect 10 Inc., v. Google Inc., et al., Date January 27, 2010

Present: The Honorable Sandra L. Butler Deputy Clerk

Stephen J. Hillman

Court Reporter / Recorder

Tape No.

Attorneys Present for Plaintiffs: N/A Proceedings: (IN CHAMBERS)

Attorneys Present for Defendants: N/A

A telephonic conference at this juncture would be useless. Counsel shall meet and confer regarding Perfect 10's Sanctions Motion as soon as practicable for all counsel, and then each side shall file a two page statement setting forth the status of the matter. Statements shall be filed within 2 business days following conclusion of the meet and confer process. The court will then determine whether to hold a telephonic conference. Whether viewed as a potential Rule 56(f) issue (notwithstanding Perfect 10's disavowal of intent to seek Rule 56(f) relief), or instead as a Motion to Compel compliance with earlier court orders, the precise issues set forth by Perfect 10 are not complicated. While the court reiterates its tentative conclusion that Evidentiary Sanctions are not appropriate at this juncture, the court may ultimately decide that the documents sought could be material to Perfect 10's opposition to the pending Motions for Summary Judgment.
cc: Judge Matz Magistrate Judge Hillman Parties of Record : Initials of Preparer

CV-90 (06/04)

CIVIL MINUTES - GENERAL

Page 1 of 1

Exhibit C

1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 _____________________________________ CINDY L. NIRENBERG, CSR 5059 U.S. Official Court Reporter 312 North Spring Street, #438 Los Angeles, California 90012
www.cindynirenberg.com

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION HONORABLE A. HOWARD MATZ, U.S. DISTRICT JUDGE ---

) PERFECT 10, INC., A CALIFORNIA ) CORPORATION, ) ) PLAINTIFF, ) ) vs. ) No. CV04-09484-AHM(SHx) ) GOOGLE, INC., ET AL., ) ) DEFENDANTS. ) ___________________________________)

REPORTER'S TRANSCRIPT OF PROCEEDINGS LOS ANGELES, CALIFORNIA MONDAY, MAY 10, 2010

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

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UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

APPEARANCES OF COUNSEL:

FOR THE PLAINTIFF: LAW OFFICES OF JEFFREY N. MAUSNER BY: JEFFREY N. MAUSNER, ATTORNEY AT LAW 21800 OXNARD STREET SUITE 910 WOODLAND HILLS, CA 91367 818-992-7500

FOR THE DEFENDANTS: QUINN EMANUEL URQUHART OLIVER & HEDGES BY: MICHAEL T. ZELLER, ATTORNEY AT LAW 865 SOUTH FIGUEROA STREET 10TH FLOOR LOS ANGELES, CA 90017 213-443-3180 QUINN EMANUEL URQUHART OLIVER & HEDGES BY: BRADLEY R. LOVE, ATTORNEY AT LAW 50 CALIFORNIA STREET 22ND FLOOR SAN FRANCISCO, CA 94111 415-875-6330

23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 work. construe him to be saying is one of a huge number of photos where the copyright is included in the photo and the image is available and the URL identification is pretty precise. more does he have to do? MR. ZELLER: It has to point us to the copyrighted What

By definition, if he is pointing to an infringing site, That does not

he's already telling us that's infringed. identify the copyrighted work. THE COURT:

Even if the copyright is on it and even

if the cover letter in the accompanying certifications as to ownership are compliant? MR. ZELLER: THE COURT: Right. And also what Mr. Mausner -I'm

And I find that to be imposing.

inclined to find that to be imposing and an unnecessary burden on a copyright holder. MR. ZELLER: Your Honor, Mr. Mausner specifically

said in order to verify that, to find out that is the identified copyrighted work, you have to go to the Perfect 10 site. That's what he said. That's clearly not proper under

the DMCA. THE COURT: I'm not sure that's what he said. He

said you could go there if there were any lingering doubt, but why is there a presumptive doubt as to the adequacy and completeness of notice, assuming that it takes on the kind of dimension that Page 1 of his Tab 2, which apparently is Exhibit
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 work. 33, Page 2, of this mass of material we have contains? "Copyright 2001, Perfect 10, Inc.," and it presents the necessary specific information as to the place on the web where it's improperly appearing as evidence of infringement. know what more should be necessary. MR. ZELLER: Their identification of the copyrighted I don't It says

And I don't agree that that's sufficient. For example, Your Honor, that means he could

literally send just simply these images, these URLs, to 10 million pages and say, "Everything that's reflected there is mine." be. THE COURT: If there were a declaration that said, All 10 million pages is mine" -That cannot be compliant with the DMCA. It just can't

"Everything on there is mine. MR. ZELLER: THE COURT: MR. ZELLER: THE COURT: MR. ZELLER: No.

-- that wouldn't be complying? No. Why? Because the statute requires

identification of a copyrighted work claimed to be infringed. And simply saying that one can surmise from a copyright notice that -- on the face of a copyright notice that that means that's the identification of the copyright work to be infringed I don't think is compliant. THE COURT: But, Mr. Zeller, what I'm asking you --

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

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UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

CERTIFICATE

I hereby certify that pursuant to Section 753, Title 28, United States Code, the foregoing is a true and correct transcript of the stenographically reported proceedings held in the above-entitled matter and that the transcript page format is in conformance with the regulations of the Judicial Conference of the United States.

Date: MAY 13, 2010

_________________________________ Cindy L. Nirenberg, CSR No. 5059