Perfect 10 Inc v. Google Inc et al

Filing 938

SUPPLEMENTAL MEMORANDUM OF LAW OF PLAINTIFF PERFECT 10, INC. IN OPPOSITION TO DEFENDANT GOOGLE INC.'S MOTION TO QUASH SUBPOENAS DIRECTED TO SHANTAL RANDS POOVALA AND FOR A PROTECTIVE ORDER re: MOTION to Quash Subpoena served by Perfect 10, Inc. on Ms. Shantal Rands Poovala and for a Protective Order #904 filed by Plaintiff Perfect 10 Inc. (Attachments: #1 Declaration of David N. Schultz in Opposition to Defendant Google Inc.'s Motion to Quash Subpoenas Directed to Shantal Rands Poovala and for a Protective Order)(Mausner, Jeffrey)

Perfect 10 Inc v. Google Inc et al

Doc. 938

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Jeffrey N. Mausner (State Bar No. 122385) [e-mail] David N. Schultz (State Bar No. 123094) [e-mail] Law Offices of Jeffrey N. Mausner Warner Center Towers 21800 Oxnard Street, Suite 910 Woodland Hills, California 91367 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 Judge Stephen J. Hillman SUPPLEMENTAL MEMORANDUM OF LAW OF PLAINTIFF PERFECT 10, INC. IN OPPOSITION TO DEFENDANT GOOGLE INC.'S MOTION TO QUASH SUBPOENAS DIRECTED TO SHANTAL RANDS POOVALA AND FOR A PROTECTIVE ORDER [DECLARATION OF DAVID N. SCHULTZ IN SUPPORT THEREOF SUBMITTED HEREWITH] Date: August 9, 2010 Time: 2:00 p.m. Place: Courtroom 550, Courtroom of the Honorable Stephen J. Hillman Discovery Cut-Off Date: None Set Pretrial Conference Date: None Set Trial Date: None Set

GOOGLE INC., a corporation, Defendants.

Supplemental Memorandum Of Law Of Plaintiff Perfect 10, Inc. In Opposition To Defendant Google Inc.s Motion To Quash Subpoenas Directed To Shantal Rands Poovala And For A Protective Order
Dockets.Justia.com

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Plaintiff Perfect 10, Inc. ("Perfect 10") submits the following Supplemental Memorandum of Law in connection with Perfect 10s Opposition to the Motion of Defendant Google Inc. ("Google") to Quash Subpoenas Directed to Shantal Rands Poovala and For A Protective Order (the "Motion"). Googles Motion seeks to prohibit Perfect 10 from conducting any deposition whatsoever of Google employee Shantal Rands Poovala ("Ms. Poovala"). As explained in Perfect 10s portion of the Joint Stipulation in connection with the Motion, Ms. Poovala is a key witness who has never previously been deposed in her individual capacity and whose deposition is critical to this action.1 Indeed, Ms. Poovalas July 2, 2009 declaration (the "Poovala Declaration") and her September 9, 2009 rebuttal declaration form the basis for Googles summary judgment motions asserting that it is entitled to a DMCA safe harbor (the "DMCA Motions"). See Joint Stipulation at 2-5, 20-28. This Supplemental Memorandum of Law addresses four additional issues, all of which provide further grounds to deny Googles Motion. I. THIS COURT'S RECENT ORDER PROHIBITING THE DEPOSITION OF DR. ERIC SCHMIDT PROVIDES ADDITIONAL GROUNDS FOR PERFECT 10 TO DEPOSE MS. POOVALA. In its July 20, 2010 Order (Docket No. 930), this Court granted Googles Motion for a Protective Order prohibiting Perfect 10 from deposing Dr. Eric Schmidt, Googles chief executive officer. One of the grounds advanced by the Court in support of its ruling was that Perfect 10 should first depose other lowerlevel employees rather than "leap-frogging to the pinnacle of [Googles] corporate pyramid." As this Court stated, Perfect 10 "still has several more opportunities to depose employees of [Google] who are the most knowledgeable on matters relevant to this lawsuit." July 20, 2010 Order at 3.
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Ms. Poovala has only been deposed for less than three hours as part of a Rule 30(b)(6) deposition almost two years ago. See Joint Stipulation on Googles Motion to Quash the Poovala Subpoenas and for a Protective Order (Docket No. 912) ("Joint Stipulation") at 19-20.
Supplemental Memorandum Of Law Of Plaintiff Perfect 10, Inc. In Opposition To Defendant Google Inc.s Motion To Quash Subpoenas Directed To Shantal Rands Poovala And For A Protective Order

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Ms. Poovala is a lower level Google employee with knowledge of matters relevant to this lawsuit. Indeed, Ms. Poovalas declarations form the basis for Googles DMCA Motions. See Joint Stipulation at 20-27. In light of this Courts ruling prohibiting Perfect 10 from deposing Dr. Schmidt, it would be wrong to deny Perfect 10 the opportunity to depose Ms. Poovala. II. JUDGE MATZ'S JULY 21, 2010 ORDER PROVIDES A FURTHER BASIS FOR PERFECT 10 TO DEPOSE MS. POOVALA. On July 21, 2010, Judge Matz issued an Order requiring the parties "to identify where in the existing briefs on Googles motion for safe harbor under 17 U.S.C. § 512(b) there is any reference in any of the ,,Group B ,,spreadsheet notices sent between May 31, 2004 and April 24, 2007 (Poovala Decl. ¶41, Exhs. L1-L48) identifying any specific material on Googles cache as infringing." July 21, 2010 Order (Docket No. 931), attached as Exhibit A to the Declaration of David N. Schultz in opposition to Googles Motion, submitted separately herewith ("Schultz Decl."). Judge Matzs Order thus specifically referenced language from, and exhibits to, the Poovala Declaration. Perfect 10s Response to Judge Matzs Order also relied in large part on the Poovala Declaration, quoting Paragraph 10 of the declaration in its entirety. See Plaintiff Perfect 10, Inc.s Response to Minute Order Dated July 21, 2010 (Docket No. 932) at 1-3, found at Schultz Decl., Exh. B. Perfect 10 has never had the opportunity to depose Ms. Poovala regarding Paragraph 10 or any other portion of the Poovala Declaration, even though it has been seeking to take Ms. Poovalas deposition since October 2009. Ms. Poovalas deposition may very well result in additional evidence relevant to this action. Judge Matzs Order, and Perfect 10s Response thereto, demonstrate the importance of Ms Poovalas testimony. Under these circumstances, this Court should deny Googles Motion and issue an Order permitting Perfect 10 to depose Ms. Poovala forthwith.

Supplemental Memorandum Of Law Of Plaintiff Perfect 10, Inc. In Opposition To Defendant Google Inc.s Motion To Quash Subpoenas Directed To Shantal Rands Poovala And For A Protective Order

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III.

GOOGLE'S FAILURE TO OBTAIN RELIEF BEFORE THE DATE SCHEDULED FOR MS. POOVALA'S DEPOSITION PROVIDES A FURTHER BASIS TO DENY GOOGLE'S MOTION. The deposition of Ms. Poovala that is the subject of Googles Motion was set

for May 20, 2010. See Declaration of Andrea Pallios Roberts in support of Googles Motion (Docket No. 913), Exh. A. (Ms. Poovalas deposition was originally noticed in October 2009, but that deposition did not take place.) Thereafter, by agreement of the parties, Ms. Poovalas deposition was continued to June 24, 2010. Schultz Decl. ¶4 and Exh. C. Although Google filed its Motion on June 23, 2010 [see Notice of Motion (Docket No. 904)], neither Google nor Ms. Poovala sought or obtained an order staying Ms. Poovalas deposition or excusing Ms. Poovala from appearing at the deposition before the scheduled deposition date of June 24, 2010. For this reason alone, Google is not entitled to a protective order and its request to prohibit Ms. Poovalas deposition should be denied. Such a conclusion is compelled by the Ninth Circuits ruling in Pioche Mines Consol., Inc. v. Dolman, 333 F.2d 257 (9th Cir.1964), cert. denied, 380 U.S. 956 (1965).2 Although Pioche was decided under an earlier version of the Federal Rules
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In Pioche, the Ninth Circuit held as follows: Rule 30(b) places the burden on the proposed deponent to get an order, not just to make a motion [for a protective order prior to the date of the deposition]. And if there is not time to have his motion heard, the least that he can be expected to do is to get an order postponing the time of the deposition until his motion can be heard. He might also appear and seek to adjourn the deposition until an order can be obtained. Rule 30(d). But unless he has obtained a court order that postpones or dispenses with his duty to appear, that duty remains. Otherwise, as this case shows, a proposed deponent, by merely filing motions under Rule 30(b), could evade giving his deposition indefinitely. Under the Rules, it is for the court, not the deponent or his counsel, to relieve him of the duty to appear.

Pioche, 333 F.2d at 269. See also F.A.A. v. Landy, 705 F.2d 624, 634 (2d Cir.) ("It is clear, however, that it is not the filing of such a motion that stays the deposition, but rather a court order."), cert. denied, 464 U.S. 895 (1983).
Supplemental Memorandum Of Law Of Plaintiff Perfect 10, Inc. In Opposition To Defendant Google Inc.s Motion To Quash Subpoenas Directed To Shantal Rands Poovala And For A Protective Order

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of Civil Procedure, it remains good law. In fact, one of the leading treatises cites Pioche for the following proposition: Pendency of motion does not excuse discovery: A party served with a deposition notice or discovery request must obtain a protective order (e.g., a stay of the deposition pending hearing on the motion) before the date set for the discovery response or deposition. The mere fact that a motion for protective order is pending does not itself excuse the subpoenaed party from making discovery: "(I)t is for the court, not the deponent or his counsel, to relieve him of the duty to appear." 11 W. Schwarzer, A. Wallace Tashima, and J.Wagstaffe, California Practice Guide: Federal Civil Procedure Before Trial (The Rutter Group 2010) § 11:1166, quoting Pioche, 333 F.2d at 269 (italic emphasis in original; bold and italic emphasis added). See also 8A C. Wright, A. Miller and R. Marcus, Federal Practice and Procedure (Thomson Reuters 2010) § 2035, at 151-52 ("with regard to depositions, the order should ordinarily be obtained before the date set for the discovery"). Here, neither Google nor Ms. Poovala obtained a court order preventing Ms. Poovalas deposition from going forward before its scheduled date of June 24, 2010. Neither Google nor Ms. Poovala sought a stay or a continuance of Ms. Poovalas deposition while the Motion was pending. Under these circumstances, Ms. Poovala was not excused from appearing for her deposition on June 24, 2010. For this reason alone, this Court should deny the Motion.3
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In its July 20, 2010 Order granting Googles motion to prohibit the deposition of Dr. Eric Schmidt, discussed in Section I, above, this Court attempted to distinguish Pioche by asserting, without more, that Pioche "involved a direct flaunting of the authority of a court for a failure to appear based on a motion to quash." Order at 1 n.1. This assertion misreads Pioche. The Ninth Circuit based its ruling in Pioche not on the deponents alleged flaunting of the courts authority, but on its holding that the Federal Rules of Civil Procedure at the very least required a prospective deponent moving for a protective order "to get an order postponing the time of the deposition until his motion can be heard." Pioche, 333 F.2d at 269. Moreover, as the treatises cited above state, Pioche is not so limited. Rather, any party served with a deposition notice must obtain a protective order before the date set for the
Supplemental Memorandum Of Law Of Plaintiff Perfect 10, Inc. In Opposition To Defendant Google Inc.s Motion To Quash Subpoenas Directed To Shantal Rands Poovala And For A Protective Order

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IV.

THE DEPOSITION OF MS. POOVALA IS NOT POINTLESS, EVEN THOUGH JUDGE MATZ JUST RULED LATE TODAY ON GOOGLE'S DMCA MOTIONS. In its portion of the Joint Stipulation, Google asserted that a deposition of Ms.

Poovala would be "pointless" because "Judge Matz has now ruled on Googles DMCA Motions." See Joint Stipulation at 17-18. Perfect 10 demonstrated, however, that a deposition of Ms. Poovala would not be pointless for at three separate reasons. Two of those reasons were as follows: (1) Even if Judge Matzs final ruling on the DMCA Motions duplicates his tentative ruling (and it likely will not, because of the various factual errors found in the tentative ruling), Ms. Poovalas testimony would still be relevant to issues regarding Perfect 10s copyright infringement claims that remain to be tried; (2) The pending DMCA Motions only cover DMCA notices and Googles infringing activity through approximately June 2009. Ms. Poovalas deposition testimony certainly would be relevant to any infringing activity after that date. Joint Stipulation at 3-4, 28-30. Although Judge Matz just issued his ruling on the DMCA Motions late in the afternoon on July 26, 2010,4 the deposition of Ms. Poovala still would not be pointless, because of the above two reasons, among others. Thus, Google has not demonstrated the "extraordinary" or "exceptional" circumstances necessary for this Court to issue a protective order barring Ms. Poovalas deposition. See J. Moore & J. Lucas, Moore's Federal Practice (3d. ed. 2007), § 26.105[2][a], at 26-520. deposition in order to excuse the deponent from appearing at the deposition. See 11 W. Schwarzer, A. Wallace Tashima, and J.Wagstaffe, supra, § 11:1166. 4 Because Judge Matz only just issued his ruling, Perfect 10 has not yet had the opportunity to carefully review that ruling. Judge Matz stated in his ruling, however, that he did not consider the declarations of four witnesses that Perfect 10 offered because Perfect 10 did not identify those witnesses in its Rule 26(f) Report and "Google was deprived of the opportunity to depose or otherwise directly rebut these witnesses declarations." July 26, 2010 Order (Docket No. 937) at 8. Ms. Poovala similarly was not identified in Googles Rule 26(f) Report and Perfect 10 similarly has been deprived of the opportunity to depose or otherwise directly rebut her declarations. See Schultz Decl., Exh. D (Googles Rule 26(f) Report).
Supplemental Memorandum Of Law Of Plaintiff Perfect 10, Inc. In Opposition To Defendant Google Inc.s Motion To Quash Subpoenas Directed To Shantal Rands Poovala And For A Protective Order

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DATED: July 26, 2010

Respectfully submitted, Law Offices of Jeffrey N. Mausner By: __________________________________ Jeffrey N. Mausner Jeffrey N. Mausner Attorneys for Plaintiff Perfect 10, Inc.

Supplemental Memorandum Of Law Of Plaintiff Perfect 10, Inc. In Opposition To Defendant Google Inc.s Motion To Quash Subpoenas Directed To Shantal Rands Poovala And For A Protective Order

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