Perfect 10 Inc v. Google Inc et al

Filing 918

PLAINTIFF PERFECT 10, INC.'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT GOOGLE INC.'S EX PARTE APPLICATION TO STAY THIS COURT'S JUNE 16, 2010 ORDER re: 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 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 #917 filed by Plaintiff Perfect 10 Inc. (Attachments: #1 Declaration of Jeffrey N. Mausner In Opposition To Defendant Google Inc.'s Ex Parte Application To Stay This Court's June 16, 2010 Order)(Mausner, Jeffrey)

Perfect 10 Inc v. Google Inc et al

Doc. 918

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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, Plaintiff, v. GOOGLE INC., a corporation, Defendants. Case No.: CV 04-9484 AHM (SHx) Before Judge Stephen J. Hillman PLAINTIFF PERFECT 10, INC.'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITON TO DEFENDANT GOOGLE INC.'S EX PARTE APPLICATION TO STAY THIS COURT'S JUNE 16, 2010 ORDER [DECLARATION OF JEFFREY N. MAUSNER SUBMITTED SEPARATELY HEREWITH] Discovery Cut-Off Date: None Set Pretrial Conference Date: None Set Trial Date: None Set

Plaintiff Perfect 10, Inc.'s Memorandum Of Points And Authorities In Opposition To Defendant Google Inc.'s Ex Parte Application To Stay This Court's June 16, 2010 Order
Dockets.Justia.com

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I.

INTRODUCTION AND SUMMARY OF ARGUMENT. Defendant Google Inc. ("Google") has filed a belated and misleading Ex

Parte Application (the "Application")1 seeking to indefinitely stay this Court's June 16, 2010 Order (Docket No. 896) (the "June 16 Order" or the "Order"). The Application asks this Court to stay Google's obligation to produce documents by July 6, 2010, as required by the Order, until some unspecified date after Judge Matz rules on Plaintiff Perfect 10, Inc.'s ("Perfect 10") objections to the Order. See Proposed Order (Docket 917-2) at 1. Because the hearing on Perfect 10's objections to the Order is set for August 16, 2010,2 and because Judge Matz may not rule immediately upon Perfect 10's objections, Google may not be required to produce the documents ordered by this Court until September 2010 at the earliest, and perhaps not even until sometime in 2011. Google seeks to indefinitely delay the production of documents ordered by the Court even though: 1) 2) Perfect 10 originally requested production of the documents that are The categories of documents that Google was ordered to produce in the subject of the June 16 Order more than four years ago; the Order were originally the subject of this Court's Court's May 22, 2006 Order or Judge Matz's May 13, 2008 Order; Google contends that the "events which triggered Google's need for a stay . . . occurred within the past three business days." Application at 1. Google's assertions elsewhere in the Application conclusively establish that this contention is incorrect. Google asserts that, based upon its prior search for documents responsive to the same categories of documents in 2008, which it claims took more than three months to complete, Google's production of documents responsive to the Order "will take a minimum of six to eight weeks to complete." Application at 5:26-27. Google thus knew, or at the very least should have known, as soon as it received the June 16, 2010 Order, that it allegedly could not produce the required documents by the July 6, 2010 deadline set by the Court. Nevertheless, Google did not raise this issue with Perfect 10 until June 29, 2010, almost two weeks after it received the Order. Nor did Google raise this issue during the hearing before the Court on June 28, 2010, even though the parties discussed the June 16 Order at the conclusion of that hearing. See Declaration of Jeffrey N. Mausner, submitted separately herewith ("Mausner Decl."), ¶¶3, 4.
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The parties stipulated to this hearing date on June 28, 2010 [see Docket No. 915], before Google raised with Perfect 10 the issue of its inability to comply with the July 6, 2010 production date set forth in the June 16 Order. Mausner Decl. ¶¶3, 4.
1 Plaintiff Perfect 10, Inc.'s Memorandum Of Points And Authorities In Opposition To Defendant Google Inc.'s Ex Parte Application To Stay This Court's June 16, 2010 Order

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3)

Google has not supplemented its prior production of the documents it

is required to produce under the terms of the Order since at least September 2008 [see Supplemental Declaration of Dr. Norman Zada, lodged under seal on June 8, 2010 (order for filing entered on June 22, 2010 [Docket No. 903] but not yet on the Docket), ¶12; 4) 5) 6) Perfect 10 filed the Motion that resulted in the June 16 Order more Perfect 10 does not plan to object to those portions of the June 16 Google apparently does not plan to object to the portions of the Order than seven months ago, in November 2009; Order compelling Google to produce documents; requiring it to produce documents. Indeed, Google has not met and conferred with Perfect 10 regarding any possible objections it may have to the Order and its deadline for filing such objections is today, July 1, 2010 [see Mausner Decl. ¶¶2, 5 and Exh. A]; and 7) Perfect 10 offered to provide Google with additional time to produce the documents called for by the Order but Google declined the offer [see Mausner Decl. ¶3 and Exh. B]. The Application is the most recent example of Google's attempt to obstruct discovery and delay its production of documents to which Perfect 10 is clearly entitled. Google apparently hopes that, by engaging in such obstruction and delay, Judge Matz will rule on its pending DMCA Motions without having all of the relevant evidence before him. Perfect 10 has waited long enough to receive the documents that Google has been compelled to produce under the terms of the Order. Google has not demonstrated that good cause exists for Perfect 10 to be forced to wait at least two more months to receive these documents. For all of the reasons explained below, this Court should deny the Application.
2 Plaintiff Perfect 10, Inc.'s Memorandum Of Points And Authorities In Opposition To Defendant Google Inc.'s Ex Parte Application To Stay This Court's June 16, 2010 Order

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II.

GOOGLE HAS FAILED TO ESTABLISH THAT GOOD CAUSE EXISTS FOR THIS COURT TO STAY THE JUNE 16 ORDER. Google advances three reasons for this Court to stay the July 6, 2010

deadline for producing documents set forth in the Order. Application at 5-6. None of these reasons establishes the good cause necessary for this Court to grant the ex parte relief that Google is seeking. Google first asserts that Perfect 10's planned objections create uncertainty regarding the documents that Google ultimately will be required to produce. Google further asserts that discovery orders "are routinely stayed pending appeal for this very reason." Application at 5:13. Here, however, Perfect 10 does not intend to object to those portions of the June 16 Order compelling Google to produce documents by July 6, 2010. Moreover, Google cannot possibly object to those same portions of the Court's Order because the deadline for filing objections is today and Google has not met and conferred with Perfect 10 regarding any objections it may have. See Order Approving Stipulation of Extension of Time to File Motion for Review of Nondispositive Ruling of Magistrate Judge Hillman, filed June 29, 2010 (Docket No. 916), attached as Exhibit A to the Mausner Declaration, at 1:22-23; 2:1-7 (the time to file a motion for review of the Order "is no later than July 1, 2010;" only Perfect 10's time to file objections to and a motion for review of the Order is extended until July 12, 2010). See also Mausner Decl. ¶¶2, 5. Accordingly, it is certain that Google will be obligated to produce the documents that it is compelled to produce under the terms of the Order, regardless of any ruling by Judge Matz on Perfect 10's objections to other portions of the Order. That Judge Matz may order Google to produce additional documents following the August 16, 2010 hearing on Perfect 10's objections should not provide a basis for Google to delay producing the documents that it is already
3 Plaintiff Perfect 10, Inc.'s Memorandum Of Points And Authorities In Opposition To Defendant Google Inc.'s Ex Parte Application To Stay This Court's June 16, 2010 Order

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required to produce. The first reason advanced by Google thus fails to establish the good cause necessary for this Court to grant the Application. Google next asserts that it is entitled to ex parte relief because it has determined that completing the production by July 6, 2010 "will be impossible." Application at 5:17. Even if true, this assertion provides no grounds for this Court to indefinitely delay the production required by the Order until after Judge Matz's ruling on Perfect 10's objections. First, as explained in footnote 1, above, if Google's analysis is correct, Google knew (or, at the very least, should have known) that it could not comply with the July 6, 2010 deadline for production as soon as it received the June 16 Order. Nevertheless, Google waited until June 29, 2010, almost two weeks later, to even raise this issue with Perfect 10. Mausner Decl. ¶3. Second, even when Google finally raised this issue, it did not initially inform Perfect 10 that it needed "six to eight weeks" to complete the production. Rather, Google informed Perfect 10 only that "it will be impossible to complete this supplementation by the current deadline." Mausner Decl.¶3 and Exh. B [email of Rachel Herrick Kassabian, sent on June 29, 2010 at 8:56 a.m.]. In response, Perfect 10 agreed to give Google an additional week to produce the documents required by the June 16 Order.3 Google rejected this offer, however. Mausner Decl. ¶3 and Exh. B. Under these circumstances, there is simply no basis for this Court to give Google an indefinite extension of time to produce the documents called for by the June 16 Order. Finally, Google contends that it is entitled to ex parte relief because the Court, at a hearing on June 28, 2010, ordered the parties to further meet and confer regarding whether Google will agree to produce DMCA logs in an EXCEL Google conveniently forgets to mention this offer in its Application. In fact, although Paragraph 8 of the Declaration of Andrea Pallios Roberts in support of the Application (Docket No. 917-1) (the "Roberts Declaration") states that "meet and confer" emails between Rachel Herrick Kassabian, representing Google, and Jeffrey N. Mausner, representing Perfect 10, are attached as Exhibit A, there is no Exhibit A attached to the Roberts Declaration.
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4 Plaintiff Perfect 10, Inc.'s Memorandum Of Points And Authorities In Opposition To Defendant Google Inc.'s Ex Parte Application To Stay This Court's June 16, 2010 Order

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spreadsheet format. See June 16 Order (Docket No. 896) at page 2, ¶1. This assertion fails for the same reason that Google's first assertion fails. The mere fact that the parties still need to discuss whether Google will produce its DMCA logs in an EXCEL format does not provide a basis for Google to delay producing other documents that it has already been ordered to produce. This is particularly true here, where Google never even mentioned during the June 28, 2010 hearing either that it would be unable to comply with the July 6, 2010 deadline for production or that the need for the parties to meet and confer regarding the format in which DMCA logs would be produced should provide a basis for this Court to indefinitely delay production of other documents that Google is required to produce under the terms of the Order. See Mausner Decl. ¶4. For this reason as well, Google is not entitled to the extraordinary relief sought by the Application. III. CONCLUSION. For all of the foregoing reasons, this Court should deny the Application in its entirety. At the very least, if this Court is inclined to grant the Application (and it should not, for all of the reasons discussed above), this Court should order Google to produce all of the documents that it is required to produce under the terms of the Order by a date certain sometime in July 2010, rather than granting Google's request for an indefinite stay of production until sometime after Judge Matz's ruling on Perfect 10's objections to the Order. Dated: July 1, 2010 Respectfully submitted, LAW OFFICES OF JEFFREY N. MAUSNER By: Attorneys

David N. Schultz __________________________________ David N. Schultz for Plaintiff Perfect 10, Inc.

5 Plaintiff Perfect 10, Inc.'s Memorandum Of Points And Authorities In Opposition To Defendant Google Inc.'s Ex Parte Application To Stay This Court's June 16, 2010 Order