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 Att. 1

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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 JEFFREY N. MAUSNER IN OPPOSITION TO DEFENDANT GOOGLE INC.'S EX PARTE APPLICATION TO STAY THIS COURT'S JUNE 16, 2010 ORDER [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 SUBMITTED SEPARATELY HEREWITH] Discovery Cut-Off Date: None Set Pretrial Conference Date: None Set Trial Date: None Set

GOOGLE INC., a corporation, Defendants.

Declaration Of Jeffrey N. Mausner 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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DECLARATION OF JEFFREY N. MAUSNER I, Jeffrey N. Mausner, declare as follows: I am a member of the State Bar of California and admitted to practice before this Court. I am 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 opposition to Defendant Google Inc.'s ("Google") Ex Parte Application To Stay This Court's June 16, 2010 Order (Docket No. 896) (the "June 16 Order" or the "Order"). 2. Attached hereto as Exhibit A is a true and correct copy of the Order Approving Stipulation of Extension of Time to File Motion for Review of Nondispositive Ruling of Magistrate Judge Hillman, signed by Judge Matz and filed on June 29, 2010 (Docket No. 916). As may be seen by a review of Exhibit A, the Order signed by Judge Matz extends the time for only Perfect 10, but not Google, to file objections to, and a motion for review of, this Court's June 16 Order from July 1, 2010 until July 12, 2010. 3. Attached hereto as Exhibit B are true and correct copies of emails between me and Rachel Herrick Kassabian, counsel for Google, dated June 29, 2010. At no time before I received Ms. Kassabian's email at approximately 8:56 a.m. on June 29, 2010 did anyone representing Google ask me, or anyone else representing Perfect 10, to agree to: (i) a stay of the July 6, 2010 deadline for Google to produce documents set forth in this Court's June 16 Order until after Judge Matz ruled upon Perfect 10's objections to the Order; or (ii) an extension of time for Google to produce documents it was compelled to produce under the terms of the Order. At no time before June 29, 2010 did anyone representing Google inform me, or anyone else representing Perfect 10, that Google would not be able to produce the documents it was required to produce under the terms of the June 16 Order by the July 6, 2010 deadline set forth in the Order.
Declaration Of Jeffrey N. Mausner In Opposition To Defendant Google Inc.'s Ex Parte Application To Stay This Court's June 16, 2010 Order

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4.

I participated in the June 28, 2010 telephonic hearing before this Court

on Google's motion for a protective order with respect to the deposition of Dr. Eric Schmidt. At no point during the course of that hearing did counsel for Google state that Google needed additional time past July 6, 2010 to produce the documents called for by the June 16 Order, even though the Court and the parties discussed issues related to the June 16 Order at the end of the telephonic hearing. 5. At no time has counsel for Google sought to meet and confer with me, or anyone else representing Perfect 10, regarding any objections that Google may have to any portions of this Court's June 16 Order. 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 July 1, 2010 in Los Angeles County, California.

__________________________________ Jeffrey N. Mausner

Declaration Of Jeffrey N. Mausner In Opposition To Defendant Google Inc.'s Ex Parte Application To Stay This Court's June 16, 2010 Order

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Exhibit A

Case 2:04-cv-09484-AHM-SH Document 916

Filed 06/29/10 Page 1 of 2

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CASE NO. CV 04-9484 AHM (SHx) ORDER APPROVING STIPULATION OF EXTENSION OF TIME TO FILE MOTION FOR REVIEW OF NONDISPOSITIVE RULING OF MAGISTRATE JUDGE HILLMAN Court: Hon. A. Howard Matz

10 PERFECT 10, INC., a California corporation, 11 Plaintiff, 12 vs. 13 GOOGLE INC., a corporation; and 14 DOES 1 through 100, inclusive, 15 16 17 18 19 21 22 24 Defendants. AND COUNTERCLAIM

WHEREAS, Magistrate Judge Hillman issued his Order re Plaintiff Perfect 10's served upon the parties on June 17, 2010 (Docket No. 896); WHEREAS, under L.R. 72-2.1, the time for Perfect 10 to file a motion for WHEREAS, on June 26, 2010, Perfect 10 informed Google via email that it

20 Motion for Evidentiary Sanctions on June 16, 2010, which Order was electronically

23 review of Magistrate Judge Hillman's Order is no later than July 1, 2010; 25 intends to file objections to and a motion for review of certain aspects of Magistrate 26 Judge Hillman's Order; 27 / / / 28
01980.51320/3555492.1

Case No. CV 04-9484 AHM (SHx) [PROPOSED] ORDER APPROVING STIPULATION TO EXTEND TIME

Case 2:04-cv-09484-AHM-SH Document 916

Filed 06/29/10 Page 2 of 2

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WHEREAS, the parties have mutually agreed to extend the deadline and

2 briefing schedule pertaining to Perfect 10's objections and motion for review of 3 Magistrate Judge Hillman's Order; 4 6 8 9 2010. 10 11 2010. 12 14 15 IT IS SO ORDERED. 16 17 18 19 20 21 22 23 24 25 26 27 28
01980.51320/3555492.1

ACCORDINGLY, PURSUANT TO THE PARTIES' STIPULATION, IT IS 1. 2. 3. 4. Perfect 10's objections to and motion for review of Magistrate Judge Google's opposition shall be filed and served on or before July 26, Perfect 10's reply shall be filed and served on or before August 2, The hearing on Perfect 10's objections and motion for review of

5 HEREBY ORDERS AS FOLLOWS: 7 Hillman's Order shall be filed and served on or before July 12, 2010.

13 Magistrate Judge Hillman's Order shall be set for August 16, 2010 at 10:00 a.m.

DATED: June 29, 2010 A. Howard Matz United States District Judge

Case No. CV 04-9484 AHM (SHx) -2[PROPOSED] ORDER APPROVING STIPULATION TO EXTEND TIME

Exhibit B

Jeffrey N. Mausner
From: Sent: To: Cc: Subject: Jeffrey Mausner [[e-mail]] Tuesday, June 29, 2010 11:42 PM 'Rachel Herrick Kassabian' 'Brad R. Love'; 'Andrea P Roberts'; 'David Schultz' RE: Order of Magistrate Judge Hillman

Perfect 10 will agree that Google may have up to and including July 30 to produce documents if Google agrees to produce the following by that date: 1. All intellectual property notices, including all notices pertaining to Blogger; 2. All DMCA logs in EXCEL format, including logs pertaining to Blogger; 3. All termination notices, including for Blogger; 4. The remaining documents that Judge Hillman ordered Google to produce in his June 16, 2010 Order. Acceptance of the above proposal will allow Google to avoid a hearing before Judge Matz in connection with Perfect 10's objections to Judge Hillman's Order, in which Perfect 10 demonstrates just how much material Google has failed to produce. Regards, Jeff.
From: Rachel Herrick Kassabian [mailto:[e-mail]] Sent: Tuesday, June 29, 2010 10:15 PM To: 'Jeffrey Mausner' Cc: Brad R. Love; Andrea P Roberts; 'David Schultz' Subject: RE: Order of Magistrate Judge Hillman

Jeff, While we appreciate the week, it won't be enough, unfortunately. For example, one of the document categories to be supplemented, Request for Production Nos. 128131 and 194195, requires Google to search through a massive volume of documents. As you may recall from our discussions back in June 2008, last time we had to search through several hundred gigabytes of files, encompassing literally millions of pages of documents pertaining to the custodians in question. That production took Google approximately three months, and required an extension as well. We estimate the supplemental production on these requests will take 68 weeks (which puts us right around the hearing date on P10's Objections). We might be able to work out an agreement that provides the DMCA processing spreadsheets in excel format, but recall from our January 2010 hearing that doing so will be time consuming as well, since those documents will need to be manually rereviewed and redacted for privilege in excel format. The bottom line here is that this isn't just a matter of convenience we physically cannot complete the supplemental production by July 6 (or July 13), and we need more time. Please let us know whether P10 will reconsider and stipulate to Google's request below. If not, we will proceed with our ex parte application tomorrow.
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Regards, Rachel

From: Jeffrey Mausner [mailto:[e-mail]] Sent: Tuesday, June 29, 2010 9:43 PM To: Rachel Herrick Kassabian Cc: Brad R. Love; Andrea P Roberts; 'David Schultz' Subject: RE: Order of Magistrate Judge Hillman

Hi Rachel. Perfect 10 will agree to a oneweek extension, until July 13, 2010, for Google to produce the materials that Judge Hillman ordered produced, as long as Google produces all materials that are in EXCEL format or other electronic format in that native format. That should actually speed the production, because you will not have to convert the documents into another format. I understand that your client contact at Google will be back by that time. Perfect 10 will oppose an ex parte application seeking relief other than that described above. Regards, Jeff.

From: Rachel Herrick Kassabian [mailto:[e-mail]] Sent: Tuesday, June 29, 2010 7:35 PM To: 'Jeffrey Mausner' Cc: Brad R. Love; Andrea P Roberts; 'David Schultz' Subject: RE: Order of Magistrate Judge Hillman

Thanks Jeff. We will need to file an ex parte tomorrow if the parties cannot agree on this, since we want the Court to have sufficient time to consider it before the impending holiday. Please let us know this evening whether (1) P10 will agree to the below request, and (2) if not, whether P10 intends to oppose Google's ex parte. Regards, Rachel
From: Jeffrey Mausner [mailto:[e-mail]] Sent: Tuesday, June 29, 2010 5:15 PM To: Rachel Herrick Kassabian Cc: Brad R. Love; Andrea P Roberts; 'David Schultz' Subject: RE: Order of Magistrate Judge Hillman

Hi Rachel. I have been tied up with other matters so far today, but will get back to you as soon as I can. Jeff.

From: Rachel Herrick Kassabian [mailto:[e-mail]] Sent: Tuesday, June 29, 2010 5:11 PM To: 'Jeffrey Mausner'
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Cc: Brad R. Love; Andrea P Roberts; David Schultz Subject: RE: Order of Magistrate Judge Hillman

Jeff, We have yet to hear from you regarding the request below. Accordingly, please be advised that Google will be seeking ex parte relief from the Court tomorrow, as described below. Please let us know if P10 intends to oppose Google's ex parte application, and if so, on what grounds. Alternatively, if P10 will agree to the requested relief, please advise so that we can avoid burdening the Court with unnecessary motion practice. Regards, Rachel
From: Rachel Herrick Kassabian Sent: Tuesday, June 29, 2010 8:56 AM To: 'Jeffrey Mausner' Cc: Brad R. Love; Andrea P Roberts Subject: Order of Magistrate Judge Hillman

Jeff, Given P10's intention to file objections to Judge Hillman's June 16th Order with Judge Matz, and the fact that the parties are still meeting and conferring regarding certain document issues (ie spreadsheet format), we suggest that the parties agree to continue the deadlines for supplemental production in that Order pending Judge Matz's ruling on P10's Objections. Once the parties have Judge Matz's order and reach agreement on formatting issues, Google will know with certainty the scope of any necessary production, which will allow us to avoid potentially duplicative or wasted production costs. Additionally, we have investigated the time it will take for Google to search for, review and produce supplemental documents, and confirmed that it will be impossible to complete this supplementation by the current deadline, due to (1) the large volume of materials that must be searched and (2) the preplanned summer vacations of key Google inhouse and outside personnel. Please let us know by the close of business if P10 will agree to the above. Regards,

Rachel Herrick Kassabian | Partner Quinn Emanuel Urquhart & Sullivan LLP 555 Twin Dolphin Drive, Fifth Floor Redwood Shores, CA 94065 650.801.5005 Direct 650.801.5000 Main 650.801.5100 Fax [e-mail] www.quinnemanuel.com
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