Perfect 10 Inc v. Google Inc et al

Filing 919

NOTICE OF ERRATA filed by Counter Claimant Google Inc, Defendant Google Inc. correcting 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 Defendant Google Inc.'s Notice Of Errata Regarding The Declaration Of Andrea Pallios Roberts In Support Of Google's Ex Parte Application (Attachments: #1 Corrected Declaration of Andrea Pallios Roberts in Support of Google's Ex Parte Application)(Kassabian, Rachel)

Perfect 10 Inc v. Google Inc et al

Doc. 919 Att. 1

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QU1NN EMANUEL URQUHART & SULLIVAN, LLP Michael T. Zeller Bar o . 196417) michaelzeller @ qu^nnemanuel . com 865 South Figueroa Street 10th Floor Los Angeles, California 9017-2543 Telephone : [phone] Facs^mxle ^ 13) 443-3100 Charles Verhoeven { Bar No . 170151) charlesverhoeven @ uinnemanuei.com 50 California Street, 2nd Floor San Francisco = California 94111 Rachel Herrick Kassabian {Bar No. 191060) rachelkassabian quinnemanuel.com 555 Twin Dolphin rive , 5th Floor Redwood Shores , California 94065

9 Attorneys for Defendant GOGGLE INC. 10 11 12 13 PERFECT 10, INC., a California 14 corporation, 15 16 vs. DOES 1 throug^i 100 , inclusive, Defendants. Plaintiff, CASE NO. CV 04-9484 AHM (SHx) DISCOVERY MATTER LCORRECTED] DECLARATION F ANDREA PALLIOS ROBERTS IN SUPPORT OF GOOGLE'S EX PARTS APPLICATION FOR (1) RELIEF FROM THE TEN-DAYY REQUIREMENT OF LOCAL RULE 7-3; AND {2) A STAY OF THE COURT'S JUNE 16, 2010 ORDER Hon. Stephen J. Hillman Date: None Set Time: None Set Crtrm.: 550
Discovery Cutoff: None Set Pretrial Conference Date: None Set Trial Date: None Set

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

17 GOGGLE INC. a corporation; and 18
19 20 ^ AND COUNTERCLAIM 21 22 23 24 25 26 27

28
O 198D .51320C3557770.4

Case No. CV 04-9484 AHM (SHx} [CORRECTED] DECLARATION OF ANDREA PALLIOS ROBERTS IN SUPPORT OF GOGGLE INC.'S EX

P^4R7E APPLICATION TO STAY THE COURT'S JUNE 16, 2010 ORDER Dockets.Justia.com

1 2

I, Andrea Pallios Roberts, declare as follows: 1. 1 am a member of the bar of the State of California and an associate at

3 ^ Quinn Emanuel Urquhart & Sullivan, LLP, counsel for Defendant Google Inc. 4 ^ ("Google") in this action. Unless otherwise stated, I make this declaration of my 5 personal and f rsthand knowledge, and if called and sworn as a witness, I could and 6 ^ would testify competently thereto. 7, 2. Shortly after receiving the Court's June 16, 2010 Order denying

8 ^ Plaintiff Perfect 10, Inc.'s ("P 10") Motion for Evidentiary and Other Sanctions ("the 9 Order"), Google began working diligently to comply with the alternative relief 10 provided in that Order, including by commencing to gather and review documents 11^ for Google's supplemental production, and taking steps to determine how long it 12 will take to search for, review and prepare the entire supplemental document 13 production specif ed in the Order. 14 3. Several in-house and outside legal personnel critical to Google's

15 supplemental document production effort had pre-planned vacations scheduled 16 during the week before and/or the week after Independence Day, including the in17 house counsel overseeing this case and the in-house legal assistant overseeing the 18 document gathering effort. While Google has assigned additional legal personnel to 19 assist with this supplemental production effort, Google will still need substantial 20 additional time to complete it. I 21 4. For example, one of the referenced document categories ordered to be 22 supplemented, P 10's Requests for Production Nos. 128-13 I and 194-195, requires 23 Google to search a massive volume of documents the entire custodial files of each 24 of the ten custodians named in the requests. Google must then convert and de-

25 duplicate the documents, manually review them for responsiveness and privilege, 26 and process any responsive documents for electronic production. By way of ',

27 comparison, Google's prior search for documents responsive to these same requests 28
019 80.5 1 32013 5 5 77 70.9

Case No. CV 04-9484 AHM (5H [CORRECTED] DECLARATION OF ANDREA PALLIOS R08ERTS IN SUPPORT OF GOGGLE INC.'S EX P^IRTE APPLICATION TO STAY THE COURT'S JUNE 16. 2010 ORDER

in 2008 involved the review of millions of documents (over 400 gigabytes of 2 electronic files, to be precise) and required more than three months to complete. 3 5. This supplemental production will require a similarly burdensome

4 undertaking. Based on our prior experience with pulling, searching, reviewing and 5 producing documents in the same categories as those specified in the Order 6 (including the production referenced in paragraph 4 above}, we estimate that it will 7 take approximately six to eight weeks (and possibly longer) for Google to complete 8 the work necessary to supplement its production as the Court has ordered, even with 9 the assistance of the additional legal staffng Google has assigned to this project. 10 6. On Saturday, June 26, 2010, Jeffrey Mausner, counsel of record for

11^ P 10, emailed me (and other counsel for Google} to inform Google that P 10 intended

12 to f le objections to the Order. Mr. Mausner's email stated that P10 believed the 13 Order was "clearly erroneous," and listed several instances of what P 10 believed 1 4 were "clearly erroneous f ndings of fact." The email did not indicate what specific 15 changes to the Order P10 would seek with its objections, but it did list several
16 categories of documents it claims Google was obliged to (but did not} produce, 17 which P10 apparently will request from Judge Matz in its objections. For example, 1$ Mr. Mausner stated that "Perfect 10 was entitled to all [third--party DMCA] notices I9 that were sent to Google." 20 7. I am informed that during the June 28, 2010 telephonic hearing on an

21 unrelated Google discovery motion, P10 raised an issue referenced but not decided 22 in the Order, namely, whether Google should be required to re-produce in Excel 23 format the DMCA processing spreadsheets Google had already produced to P 10. I 24 am informed that the Court directed the parties to continue to meet and confer 25 regarding this issue, and to bring the issue to the Court ' s attention if they reached an 26 impasse in those negotiations . Given that certain key Google personnel who must 27 approve any discovery agreements are currently on vacation ( as referenced above), 28
01980 .5 1320f3557770.4 I

Case No. CV 04-4484 AHM (SH [CORRECTED] DECLARATION OF ANDREA PALLIOS ROBERTS IN SUPPORT OF GOOGLE INC.'S EX P^lR7'E APPLICATION TO STAY THE COURT'S .NNE I6.2010 ORDER

1 ^ Google anticipates that those negotiations will not conclude until late next week or 2 ^ early the week thereafter. 3 8. On the morning of June 29, 2010, my colleague Rachel Herrick

4 Kassabian emailed Mr. Mausner, requesting that P 10 agree to a stay of the Order's 5 July 6 deadline for Google's supplemental production during the pendency of P 10's 6 objections to the Order. Ms. Kassabian' s email explained the various reasons why a 7 J stay was necessary and appropriate, including that despite Google's best efforts, it 8 would be physically impossible for Google to meet the current deadline. The parties 9 exchanged several emails, but ultimately, Mr. Mausner refused to agree to Google's 10 requested stay. Instead, Mr. Mausner demanded several substantive concessions 11 including that Google agree to produce several categories of documents that the

12 Order found P 10 had not even requested - in exchange fora 24-day extension. Ms. 13 Kassabian informed Mr. Mausner that Google would be filing an ex pate 14 application seeking the necessary stay of the Order, and Mr. Mausner indicated that 15'^ P 10 would oppose it. A true and correct copy of these meet and confer emails is 16 attached hereto as Exhibit A. 17 I declare under penalty of perjury under the laws of the United States of

18 America that the foregoing is true and correct. Executed July 1, 2010 at Redwood ^, 19 Shores, California. 20
21 22 23 24 25 26. 27

^^I

Andrea Pallios Roberts

2s
o^gaosi32or^ss722o.a _3_ Case No. CV 04-9484 AHM (SHx} [CORRECTED] DECLARATION OF ANDREA PALLIOS ROBERTS IN SUPPORT OF GOGGLE INC.'S E.Y P.4RTE APPLICATION TO STAY THE COURT'S JUNE 16.2010 ORDER

EXHIBIT A

Fram : To: Cc: Subject : Date :

Jeffrey Mausner Rachel Fferrick Kassabian Brad R . Lnve; Andrea P Roberts; "David Schultr" RE: Order of Magistrate Judge Hillman Tuesday, June 29, 2010 11:42:53 PM

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; z. 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 [mailtaracheikassabian@quinnemanuei.c4m] Sent : Tuesday, June 29, 2010 10:15 PM 70: 'Jeffrey Mausner' Ca Brad R. Love; Andrea P Roberts; 'David Schultz' Sub,^ect : RE: Order of Magistrate Judge Hiliman

Jeff,
While we appreciate the weep, it won't be enough, unfortunately. For example, one of the document categories to be supplemented, Request for Production Nos. 1Z8-131 and 194-195, 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 6-8 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

Exhibit A, Page 4

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 PiQ will reconsider and stipulate to Google's request below. if not, we will proceed with our ex parte application tomorrow. 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 one-week extension, until July 13, 2010, far 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. [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 [maiito:[e-mail]] Sent : Tuesday, June 29, 2010 7:35 PM To: `Jeffrey Mausner' Cc: Brad R. Love; Andrea P Roberts; 'David Schultz` Subjec# : 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 tune to consider it before the impending holiday. Please let us know this evening whether {1) P10 wilt agree to the below request, and {2) if not, whether P10 intends to oppose Google's ex parte.

Exhibit A, Page 5

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:rachelkassabian@quinnemanue[.com] Sent : Tuesday, June 29, 2010 5;11 PM To: 'Jeffrey Mausner' 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 P1D 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, 2D10 8:Sb AM To: 'Jeffrey Mausner' Cc: Brad R, Lave; 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 Gaogie to search for, review and produce supplemental documents, and confirmed that it will be impossible to complete

Exhibit A, Page 6

this supplementation by the current deadline, due to (1) the large volume of materials that must be searched and (2) the pre-planned summer vacations of key Google in-house and outside personnel. Please let us know by the close of business if Pia will agree to the above. Regards,
Rachel Herrick Kassabian ^ Partner Quinn i=manual Urt{ uhart & Sullivan LLP 555 Twin Dolphin Drive, Fifth Floor Redwood Shores, CA 94065 650.801.5005 Direct 650.801.5000 Main 650.801.5'[00 Fax

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Exhibit A, Page 7'