Perfect 10 Inc v. Google Inc et al

Filing 917

EX PARTE APPLICATION for Order for (1 ) Relief from the Ten-Day Requirement of Local Rule 7-3; And (2) a Stay of the Court's June 16, 2010 Order filed by Defendant and Counter-Claimant Google Inc. (Attachments: #1 Declaration of Andrea Pallios Roberts in Support of Google's Ex Parte Application, #2 Proposed Order Granting Google's Ex Parte Application)(Kassabian, Rachel)

Perfect 10 Inc v. Google Inc et al

Doc. 917

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QUINN EMANUEL URQUHART & SULLIVAN, LLP Michael T. Zeller (Bar No. 196417} michaelzeller@quinnemanuel. com 865 South Figueroa Street 10th Floor Los Angeles California 9017-2543 Telephone: 213} 443-3000 Facsxmile:^ 13} 443-3100 Charles. Verhoeven {Bar No. 1701 S 1) charlesverhoeven@q uxnnemanuel . com SO California Street, 22nd Floor San Francisco? California 94111 Rachel Herrick Kassabian (Bar No. 191060) rachelkassabian quinnemanuel.com SSS Twin Dolphin rive, Sth Floor Redwood Shores, California 94065 Attorneys for Defendant GOGGLE INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

13 PERFECT 10, INC., a California
corporation,

CASE NO. CV 04-9484 AHM (SHx)
DISCOVERY MATTER

14 Plaint 1S
vs.

16 GOGGLE INC. a corporation; and 17 DOES 1 through 100, inclusive, 18 19 AND COUNTERCLAIM 20 21 22 23 24 2S 26 27 28
^19$0.51320r3551923 . 7 ^^

Defendants.

DEFENDANT GOGGLE INC'S EX PARTE APPLICATION FOR (1} STAY OF THE COURT' S JUNE 16, 20L0 ORDER AND (2} RELIEF FROM THE TEN-DAY REQUIREMENT OF LOCAL RULE 7-3 [Declaration of Andrea Pallios Roberts, and (Proposed} Order filed concurrently] Hon. Stephen J. Hillman Date: None Set Time: None Set Crtrm.: SSO Discovery Cutoff: None Set Pretrial Conference Date: None Set Trial Date: None Set

Case No . CV 04-4484 AHM

DEFENDANT GOGGLE INC'S EX PARTE APPLICATION TO STAY THE COURT'S .NNE 16.2010 ORDER Dockets.Justia.com

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Pursuant to the Federal Rules of Civil Procedure and Local Rule 7-19,

2 Defendant Google Inc. ("Google" ) respectfully submits this ex pa;^te application 3 seeking { 1 } a stay of the Court's June 16, 2010 Order Re Plaintiff Perfect 10's
4 Motion for Evidentiary Sanctions ("the Order") and (2} relief from the ten-day 5 (requirement of Local Rule 7-3. 6 Google makes these requests through an ex pane application because the

7 current deadline for compliance with the Order is in three business days and events 8 which triggered Google's need for a stay (as described in the Memorandum of 9 Points and Authorities} occurred within the past three business days. More

10 specifically, (1) on June 26, 2010, plaintiff Perfect 10, Inc. ("P 10") notif ed Google 11 that it will be fling with Judge Matz objections to the Order, thereby creating 12 uncertainty as to what documents (if any) Google ultimately will be required to 13 produce in connection with the Order, (2) several of Google's in-house and outside 14 legal personnel are away on previously-scheduled vacations due to the

15 Independence Day holiday, (3) on June 28, 2010, the Court ordered the parties to 16 continue meeting and conferring regarding certain aspects of the Order pertaining to 17 production format issues, and those meet and confer activities will not be complete 18 until after the supplemental production deadline specified in the Order due to the 19 above-referenced vacations, and (4) given the volume of documents which must be 20 searched and reviewed, it will be impossible for Google to complete its 21 supplemental production by the deadline specified in the Order. Accordingly,

22'^^ Google requests that the deadline specified in the Order be stayed pending Judge 23, Matz's ruling on P10's objections to the Order. 24 Pursuant to Local Rule 7-19, on June 29, 2010, Google gave notice of this ex

2S pane application to Jeffrey N. Mausner of The Law Offices of Jeffrey N, Mausner 26 (address: 21800 Oxnard Street, Suite 910, Woodland Hills, California 91367, 27 telephone: (818} 992-7500}, counsel of record for P10, who informed Google that 28
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_1_ Case No. CV 04-4484 AHM (5Hx) DEFENDANT GOOGLE INC'S EX PARTE APPLICATION TO STAY THE COURT'S NNE lb. 2010 ORDER

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P 10 intends to oppose this ex paYte application . Roberts {"Roberts Decl.") ¶ 8, Ex. A..

Declaration of Andrea Pallios

This application is based on this Application and the accompanying

4 Memorandum , the Declaration of Andrea Pallios Roberts filed concurrently, the
5 pleadings and other papers on file in this action , and all matters of which the Court 61 may take judicial notice. 7 DATED: June 30 , 2010 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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^UINN EMANUEL URQUI-TART & S IVAN. LLP
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Rachel Herrick Kassabian Attorneys for Defendant GOGGLE INC.

_2_ Case No. GV 04-9484 AHM {SHx) DEFENDANT GOGGLE 1NC'S EX PARTS APPLICATION TO STAY THE COURT'S JUNE 16.2010 ORDER

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MEMORANDUM OF POINTS AND AUTHORITIES Google respectfully requests that this Court stay the portions of the Court's

3 June 16, 2010 Order that require Google to supplement its document production in 4 various respects by July 6, 2010, for the reasons set forth below. 5 6 Back round On June 16, 2010, this Court issued an order ("Order"} denying P 10's Motion

7 for Evidentiary and Other Sanctions. See June 16, 2010 Order denying Plaintiff 8 Perfect 10's Motion for Evidentiary Sanctions {Dkt, No. 896}. Specifically, the 9 Order denied P10's request for sanctions in its entirety, Ending that Google had 10 complied with all relevant discovery orders and produced all requested documents. 11 ^ Id. at pp. 1-2 With respect to P 10's alternate requested relief, the Court directed

12 that Google supplement its production of certain categories of documents within 20 13 days of the Order (i.e. by July 6, 2010), to bring its prior production current up to 14 the present time.' 15 Promptly upon issuance of the Order, Google began taking steps to comply

16 with the Order, including investigating how long it would take to search for, review 17 and produce the categories of documents designated for supplemental production in 18 Among other things, the Court ordered Google to locate and produce ^ 19 additional notices of termination issued by Google as a result of alleged intellectual 20 property violations on Web Search, Image Search and AdSense (Request Nos. 2628}, communications between Google and the owners of 82 websites identified by 21 P 10, to the extent that ownership information is reflected in Google's records 22 (Request No. 29}, and "reports, studies, or internal memoranda ordered, requested, or circulated by Bob Brougher, Susan Wojcicki, Walt Drummond, Eric Schmidt, 23 John Levine, Heraldo Botelho, Radhika Malpani, Jessie Jiang, Lawrence You, 24 Diane Tang, and Alexander MacGillivray relating to the following topics: search query frequencies, search query frequencies for adult-related terms, number of 25 clicks on adult images and images in general, traffic to infringing websites, the draw 26 of adult content, and percentage of searches conducted with the safe search filter off' (Request Nos. 128-131 & 194-195). See Order at p. 2 {citing Google's 27 Statement Re Status of DMCA-Related Discovery Issues {Dkt. No. 885), at pp. 4-6). 28
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_^_ Case No . CV 04-9484 AHM (SHx) _ DEFENDANT GOGGLE INC'S EX PARTS APPLICATION TO STAY THE DEADLINE FOR SUPPLEMENTAL PRODUCTION OF CERTAIN CATEGORIES OF DOCUMENTS

1 ^^ the Order, in light of the volume of documents and f les that must be searched and 2 reviewed, and the pre-scheduled Independence Day vacations of certain key Google 3 and outside counsel personnel . Roberts Decl. ¶¶ 2 - 3. Based upon its current

4 ^^ information , Google estimates that it will take a minimum of six to eight weeks- to 5 complete this supplemental production . Id. ¶ 5. 6 On Saturday, June 26, 2010, P 10 informed Google that it intends to file Roberts Decl. ¶ 6. While the precise bases for P10's

7 objections to the Order.

8 objections are not clear, it appears that P10 intends to seek additional and/or 9 alternative document production than what the Court ordered . E.g., id. ("Perfect 10 10 was entitled to all [third-party DMCAj notices that were sent to Google.").Z 11 During a telephonic hearing on June 28, 2010, the Court ordered the parties to

12 ^ further meet and confer regarding certain aspects of the Order pertaining to 13 production format issues. Roberts Decl. ¶ '7. The parties will be unable to complete I4 those meet and confer activities until after the July 6 supplemental production 15 deadline specified in the Order, due to the above-referenced vacations of certain key 16 Google personnel. 17 On June 29, 2010, Google requested that P 10 agree to a stay of the Order's

18 ^ July 6 deadline for supplemental production during the pendency of P 10's 19 objections to that Order, for all of the above-referenced reasons. Roberts Decl. ¶ 8,

2a

Ex. A. P 10 refused to stipulate to Google's requested stay. Instead, P 10 demanded

21 that Google effectively concede the merits of the objections P10 intends to make to 22 the Order by agreeing to produce the categories of documents the Court had found 23 that P 10 had never even requested, in exchange fora 24-day extension . This ex 24 parte application followed. Id. 25' Pursuant to the parties' stipulation and Judge Matz's Order thereon (Dkt. No. 916}, P10 ' s planned objections will be filed on July 12, 2010, and heard by Judge 27 Matz on August 16, 2010. 26'' 2811
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_4_ Case No . CV 04-9484 AHM (SHx) DEFENDANT GOGGLE INC'S EX PARTE APPLICATION TO STAY THE DEADLINE FOR SUPPLEMENTAL PRODUCTION OF CERTAIN CATEGORIES OF DOCUMENTS

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Argument

III.

GOGGLE SHOULD BE GRANTED A STAY OF THE JULY 6ti 2010 DEADLINE FOR ITS SUPPLEMENTAL PRODUCTION. Google respectfully requests that the Court stay the July 6, 2010 deadline for

S II Google's supplemental production imposed by the Order during the pendency of 6 II P10's appeal of that Order to Judge Matz, for three reasons. 7 First, P10's planned objections create uncertainty as to what document S production (if any) ultimately might be required in connection with P 10's Motion 9 for Evidentiary and Other Sanctions. (Dkt. No. 617). Once the parties have Judge 10 Matz's order on P10's objections, Google will know with certainty the scope of any 11 necessary production, which will allow Google to avoid potentially duplicative or 12 wasted production costs, repetitive custodian document pulls, and the like. 13 Discovery orders are routinely stayed pending appeal for this very reason. 14 Second, based upon its investigation into how long it will take to search for,

15 ^,^ review and make a supplemental production of the categories of documents 16 referenced on the Order, Google has determined that completing the production by 17 the current July 6 deadline will be impossible. For example, one of the referenced 1$ categories, P10's Requests for Production Nos. 128-131 and 194-195, requires 19 Google to search a massive volume of documents the entire custodial files of each 20 of the ten custodians named in the requests. Google must then convert and de-

21 duplicate the documents, manually review them for responsiveness and privilege, 22 and process any responsive documents for electronic production. Roberts Decl. ¶ 4. 23 By way of comparison, Google's prior search for documents responsive to these 24 same requests in 2008 involved the review of millions of documents and required 2S more than three months to complete. Id. This supplemental production will require 26 a similarly burdensome undertaking, which Google estimates will take a minimum 27 of six to eight weeks to complete. Id. ¶ 5.
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This will roughly coincide with the

28 hearing date on P 10's objections to the Order, currently set for August 16, 2010.
Case No. CV 04-9484 AHM (SHx) DEFENDANT GOGGLE INC'S EX PARTS APPLICATION TO STAY THE DEADLINE FOR SUPPLEMENTAL PRODUCTION OF CERTAIN CATEGORIES OF DOCUMENTS

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See June 29, 2010 Order by Judge Matz setting hearing date pursuant to parties'

2 ^ stipulation (Dkt. No. 916). 3 This supplemental document production effort is further complicated by the

4 ^ fact that several key Google and outside counsel personnel are currently (or about to 5 (be} out of the office on pre-scheduled Independence Day vacations. Roberts Decl. ¶ 6 (3. While Google has assigned additional legal personnel to assist with this

7 supplemental production, Google will still need substantial additional time to 8 complete it. Yd. 9 Third, on June 28, 2010, the Court ordered the parties to further meet and

10 ^ confer regarding certain aspects of the Order pertaining to production format issues. 11 Roberts Decl. ¶ 7. The parties will be unable to complete those meet and confer 12 ^ activities until after the July 6 deadline specified in the Order, due to the above13 referenced vacations of certain key personnel, including Google in-house counsel 14 who must approve any discovery agreements the parties reach. Thus, Google will 15 not know with certainty prior to the July 6 deadline precisely which documents (and 16 in what format) need to be produced.3 17 18 19 For these same reasons, Google should be given relief from Local Rule 7--3's requirement that the parties meet and confer ten days prior to the filing of this application, to the extent it applies here. Google's deadline to comply with the Order is on July 6, just three business days from the date of this filing, so Google does not have ten days to wait after the meet and confer. P 10 also only notified Google of its intention to file objections to the Order on June 26, six business days before the July 6 production deadline. Furthermore, before coming to this Court for relief, Google made agood-faith attempt to determine whether supplementing its production by July 6 would be feasible, which investigation took several days to complete. Stated another way, it is because Google tried to meet the Court's deadline before requesting an extension that Google does not have ten days to wait after meet and confer.
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Conclusion

Accordingly, Google respectfully requests that the Court (1) stay the July 6,

3 2010 deadline for Google's supplemental production set in the June 16, 2010 Order, 4 pending Judge Matz's ruling an P10's objections to that Order and {2} grant Google 5 relief from the requirements of Local Rule 7-3. 6 7 DATED: June 30, 2010 8 9 10 11 12 13 14 Rachel Herrick Kassabian ^^UINN EMANUEL URQUHART & S^CJLL7VAN. LLP

Attorneys for Defendant GOGGLE INC.

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..']_ Case No. CV 04-9484 AHM (SHx} DEFENDANT GOGGLE INC'S EX PARTE APPLICATION TO STAY THE DEADLINE FOR SUPPLEMENTAL PRODUCTION OF CERTAIN CATEGORIES OF DOCUMENT5