Perfect 10 Inc v. Google Inc et al

Filing 923

NOTICE OF MOTION AND MOTION for Review of and Objections to, Magistrate Judge Hillman's June 16, 2010 Order On Perfect 10's Motion For Evidentiary And Other Sanctions Against Defendant Google Inc. re Minutes of In Chambers Order/Directive - no proceeding held, #896 filed by Plaintiff Perfect 10 Inc. Motion set for hearing on 8/16/2010 at 10:00 AM before Judge A. Howard Matz. (Attachments: #1 Proposed Order Granting Motion of Plaintiff Perfect 10, Inc. For Review of, and Objections To, Magistrate Judge Hillman's June 16, 2010 Order On Perfect 10's Motion For Evidentiary and Other Sanctions Against Defendant Google Inc.)(Mausner, Jeffrey)

Perfect 10 Inc v. Google Inc et al

Doc. 923 Att. 1

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[Proposed] Order Granting Motion Of Plaintiff Perfect 10, Inc. For Review Of, And Objections To, Magistrate Judge Hillman's June 16, 2010 Order On Perfect 10's Motion For Evidentiary And Other Sanctions
Dockets.Justia.com

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA PERFECT 10, INC., a California corporation, v. Plaintiff, Case No.: CV 04-9484 AHM (SHx) Before Judge A. Howard Matz [PROPOSED] ORDER GRANTING MOTION OF PLAINTIFF PERFECT 10, INC. FOR REVIEW OF, AND OBJECTIONS TO, MAGISTRATE JUDGE HILLMAN'S JUNE 16, 2010 ORDER ON PERFECT 10'S MOTION FOR EVIDENTIARY AND OTHER SANCTIONS AGAINST DEFENDANT GOOGLE INC. Date: August 16, 2010 Time: 10:00 a.m. Place: Courtroom 14, Courtroom of the Honorable A. Howard Matz Discovery Cut-Off Date: None Set Pretrial Conference Date: None Set Trial Date: None Set

GOOGLE INC., a corporation, Defendants.

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The Motion of Plaintiff Perfect 10, Inc. ("Perfect 10") For Review Of, And Objections To, Magistrate Judge Hillman's June 16, 2010 Order on Perfect 10's Motion for Evidentiary and Other Sanctions Against Defendant Google Inc. and/or for the Appointment of a Special Master (the "Motion") came on for hearing in this Court on August 16, 2010 at 10:00 a.m. Having considered Perfect 10's Motion and supporting papers, the Opposition to the Motion of Defendant Google Inc. ("Google") and supporting papers, Perfect 10's Reply and supporting papers, and the pleadings and supporting evidence submitted before Magistrate Judge Hillman in connection with Perfect 10's Motion for Evidentiary and Other Sanctions Against Defendant Google Inc., and having heard the oral arguments of counsel for the parties, and finding good cause therefor, Perfect 10's Motion is GRANTED. The Court hereby sustains all of Perfect 10's objections to Magistrate Judge Hillman's June 16, 2010 Order, as set forth in Perfect 10's moving papers, sets aside those portions of Magistrate Judge Hillman's June 16, 2010 Order to which Perfect 10 has objected, and rules as follows: 1) Google has violated this Court's May 13, 2008 Order concerning Request For Production ("RFP") No. 196 by failing to produce the "spreadsheettype" DMCA log required by that order. 2) Google has violated Magistrate Judge Hillman's May 22, 2006 Order concerning RFP Nos. 26 and 27 (as modified) by failing to produce all notices of termination issued by Google as a result of alleged intellectual property violations. 3) 4) Google has violated Magistrate Judge Hillman's May 22, 2006 Order Google has violated its own prior representations that it had already concerning RFP No. 51 by failing to produce all third-party DMCA notices. produced documents constituting "all notices received by Google regarding intellectual property violations" and "all underlying notices of infringement" by failing to produce all third-party DMCA notices.
1 [Proposed] Order Granting Motion Of Plaintiff Perfect 10, Inc. For Review Of, And Objections To, Magistrate Judge Hillman's June 16, 2010 Order On Perfect 10's Motion For Evidentiary And Other Sanctions

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5) prejudice. 6)

Google's failure to comply with this Court's May 13, 2008 Order and

Magistrate Judge Hillman's May 22, 2006 Order has caused Perfect 10 to suffer Blogger (i.e., websites with URLs containing the term blogger.com or

blogspot.com) has been at issue in this case since at least January 2005, when Perfect 10 filed its First Amended Complaint in this action. Accordingly, Perfect 10's discovery requests concerning notices of termination (RFP Nos. 26 and 27, as modified), third-party DMCA notices (RFP No. 51), and a DMCA log (RFP No. 196) seek documents concerning Blogger. Furthermore, documents related to Blogger were embraced within Magistrate Judge Hillman's May 22, 2006 Order and this Court's May 13, 2008 Order. 7) Additionally, it is undisputed that Blogger was in this case following Perfect 10's filing of its Second Amended Complaint in July 2008. Accordingly, under Rule 26(e)(1)(A) of the Federal Rules of Civil Procedure, Google has a continuing duty to supplement its prior production of documents and produce documents concerning Blogger that are now responsive to Perfect 10's earlier document requests, including (without limitation), RFP Nos. 26 and 27 (as modified), RFP No. 51, and RFP No. 196. 8) Google shall produce the DMCA log required by this Court's May 13, 2008 Order ­ a "spreadsheet-type document summarizing DMCA notices received, the identity of the notifying party and the accused infringer, and the actions (if any) taken in response." The DMCA log to be produced by Google shall include all information required by this Court's May 13, 2008 Order for all DMCA notices, including those concerning Blogger. 9) Google shall produce all notices of termination issued by Google as a result of alleged intellectual property violations, as required by Magistrate Judge Hillman's May 22, 2006 Order concerning RFP Nos. 26 and 27 (as modified). The notices of termination to be produced by Google shall include: (i) all notices
2 [Proposed] Order Granting Motion Of Plaintiff Perfect 10, Inc. For Review Of, And Objections To, Magistrate Judge Hillman's June 16, 2010 Order On Perfect 10's Motion For Evidentiary And Other Sanctions

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of termination issued by Google as a result of DMCA notices received both from third parties and from Perfect 10; and (ii) all notices of termination issued by Google concerning Blogger. 10) Google shall produce all DMCA notices it has received from third parties, including (without limitation) all DMCA notices concerning Web Search, Image Search, AdSense, AdWords, and Blogger. 11) 12) The documents that Google is ordered to produce under the terms of this Perfect 10 may file a sur-reply in connection with Google's pending Order shall be produced within 20 days of the entry of this Order. DMCA Summary Judgment Motions within 30 days of Perfect 10's receipt of all documents which Google is ordered to produce pursuant to this Order. The Court shall rule upon the pending DMCA Summary Judgment Motions after Perfect 10 files its sur-reply. 13) The Court imposes additional relief as set forth in the [Proposed] Order Granting The Motion Of Plaintiff Perfect 10, Inc. For Evidentiary and Other Sanctions Against Defendant Google Inc. And/Or For The Appointment of a Special Master, filed in this action on November 29, 2009 (Docket No. 617-1). IT IS SO ORDERED. Dated: _______________ Honorable A. Howard Matz United States District Judge

3 [Proposed] Order Granting Motion Of Plaintiff Perfect 10, Inc. For Review Of, And Objections To, Magistrate Judge Hillman's June 16, 2010 Order On Perfect 10's Motion For Evidentiary And Other Sanctions