Perfect 10 Inc v. Google Inc et al

Filing 966

STATEMENT of NOTICE SUBMITTING TO THE COURT GOOGLE'S RESPONSES AND OBJECTIONS TO PERFECT 10'S FOURTEENTH SET OF REQUESTS FOR THE PRODUCTION OF DOCUMENTS, SUBMITTED IN CONNECTION WITH PERFECT 10'S MOTION FOR REVIEW OF, AND OBJECTIONS TO, MAGISTRATE JUDGE HILLMAN'S JUNE 16, 2010 ORDER re: 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, #923 filed by Plaintiff Perfect 10 Inc. (Attachments: #1 Declaration of Jeffrey N. Mausner In Support of Notice Submitting to the Court Google's Responses and Objections to Perfect 10's Fourteenth Set of Requests for the Production of Documents)(Mausner, Jeffrey)

Perfect 10 Inc v. Google Inc et al

Doc. 966

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Jeffrey N. Mausner (State Bar No. 122385) [e-mail] David N. Schultz (State Bar No. 123094) [e-mail] Law Offices of Jeffrey N. Mausner 21800 Oxnard Street, Suite 910 Woodland Hills, California 91367-3640 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 A. Howard Matz NOTICE SUBMITTING TO THE COURT GOOGLE'S RESPONSES AND OBJECTIONS TO PERFECT 10'S FOURTEENTH SET OF REQUESTS FOR THE PRODUCTION OF DOCUMENTS, SUBMITTED IN CONNECTION WITH PERFECT 10'S MOTION FOR REVIEW OF, AND OBJECTIONS TO, MAGISTRATE JUDGE HILLMAN'S JUNE 16, 2010 ORDER [Declaration of Jeffrey N. Mausner Filed Separately] Date: Motion Taken Under Submission Time: N/A 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.

Notice Submitting to the Court Google's Responses and Objections to Perfect 10's Fourteenth Set of Requests For The Production of Documents
Dockets.Justia.com

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
1

Plaintiff Perfect 10, Inc. ("Perfect 10") submits this Notice to the Court, in order to alert the Court to Defendant Google Inc.'s Responses and Objections to Plaintiff Perfect 10, Inc.'s Fourteenth Set of Requests for the Production of Documents, which Perfect 10 only received on August 16, 2010 ("Google's Responses"). A copy of Google's Responses is attached as Exhibit A to the Declaration of Jeffrey N. Mausner, submitted separately herewith ("Mausner August 18, 2010 Decl."). As explained below, a review of Google's Responses demonstrates that Defendant Google Inc. ("Google") continues to refuse to comply with discovery in this action, including discovery propounded by Perfect 10 concerning Blogger. One of the key issues before this Court in connection with Perfect 10's Motion for Review of, and Objections to, Judge Hillman's June 16, 2010 Order concerning Perfect 10's Motion for Evidentiary and Other Sanctions against Google (the "Sanctions Motion") is Judge Hillman's incorrect ruling that Blogger was not at issue in this case at the time that the discovery at issue in the Sanctions Motion was propounded by Perfect 10. Perfect 10 explained, both in its moving papers and reply papers, why Judge Hillman was incorrect. See Docket Nos. 925, 949, 960. Perfect 10 also explained that Google had failed to produce: (1) "[a]ll notices of termination issued by Google as a result of alleged intellectual property violations," as required by Judge Hillman's May 22, 2006 Order. See May 22, 2006 Order (Docket No. 163) at 5:15-20 (emphasis added); (2) a "DMCA log," defined by this Court as "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." May 13, 2008 Order (Docket No. 294) at 5:1-9 (emphasis added); and (3) all third-party DMCA notices, despite Google's prior representations that it had produced "all notices received by Google regarding intellectual property violations" and "all underlying notices of infringement."1 See Google's Response to Document Request No. 196, dated February 23, 2007, found at Mausner Decl. (Docket No. 618), Exh. F, p. 35, Response No. 196
Notice Submitting to the Court Google's Responses and Objections to Perfect 10's Fourteenth Set of Requests For The Production of Documents

1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

As Perfect 10 explained, the various Court Orders regarding discovery and Google's own prior representations compelled Google to produce the documents at issue in the Sanctions Motion. Nevertheless, in the exercise of caution following Judge Hillman's June 16, 2010 Order, Perfect 10 served its Fourteenth Set of Requests for the Production of Documents upon Google ("Perfect 10's Requests"). Perfect 10's Requests contained 38 specific requests for the production of documents, which were phrased in the most explicit way possible and specifically referred to such Google programs as Blogger, AdSense, AdWords, Image Search and Web Search. For example, Perfect 10's Requests included the following specific requests: YOUR DMCA LOG RELATING TO BLOGGER. All notices of termination issued by GOOGLE as a result of alleged intellectual property violations RELATING TO BLOGGER. All notices of termination issued by GOOGLE as a result of alleged intellectual property violations RELATING TO any GOOGLE product, program, or service in which GOOGLE stores images on GOOGLE servers. All notices of termination notices that RELATE TO any DMCA notice received by GOOGLE from an ENTITY other than Perfect 10. To the extent not included in response to any previous request, all DOCUMENTS RELATING TO any notice of termination issued by GOOGLE as a result of alleged intellectual property violations. All DMCA notices received by GOOGLE RELATING TO BLOGGER. All DMCA notices received by GOOGLE RELATING TO GOOGLE ADSENSE. All DMCA notices received by GOOGLE RELATING TO GOOGLE ADWORDS. All DMCA notices received by GOOGLE RELATING TO GOOGLE WEB SEARCH. All DMCA notices received by GOOGLE RELATING TO GOOGLE IMAGE SEARCH. (emphasis added); Joint Stipulation Re Plaintiff Perfect 10, Inc.'s Motion to Compel Defendant Google Inc. to Produce Documents, filed October 9, 2007, found at Mausner Decl. (Docket No. 618), Exh. L, p. 86, lines 21-22 (emphasis added).
Notice Submitting to the Court Google's Responses and Objections to Perfect 10's Fourteenth Set of Requests For The Production of Documents

2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

All DMCA notices received by GOOGLE RELATING TO any GOOGLE product, program, or service in which GOOGLE stores images on GOOGLE servers. All DMCA notices received by GOOGLE from an ENTITY other than Perfect 10. To the extent not included in response to any previous request, all DOCUMENTS RELATING TO any DMCA notice received by GOOGLE. GOOGLE'S REPEAT INFRINGER TRACKING SHEET RELATING TO BLOGGER. GOOGLE'S REPEAT INFRINGER TRACKING SHEET RELATING TO GOOGLE ADWORDS. GOOGLE'S REPEAT INFRINGER TRACKING SHEET RELATING TO GOOGLE WEB SEARCH. GOOGLE'S REPEAT INFRINGER TRACKING SHEET RELATING TO GOOGLE IMAGE SEARCH. Perfect 10 propounded these 38 requests despite its position that the documents sought in these requests had already been requested and were already the subject of Court Orders regarding discovery. Perfect 10 received Google's Responses to Perfect 10's Requests on August 16, 2010. See Mausner August 18, 2010 Decl., Exh. A. As may be seen by a review of Google's Responses, Google has objected to every request, and has refused to produce responsive documents. Id.2 Among its voluminous and inapplicable objections, Google cites to the recent Court Orders as its basis for not producing documents, including those relating to third-party DMCA notices. Google now also states that Perfect 10's most recent requests for its DMCA log, DMCA notices, termination notices, and other documents regarding Blogger are "duplicative" of previous requests and "it has previously responded to Perfect 10's prior [requests...], and will supplement its production regarding these requests as necessary and appropriate." Google's position thus contradicts its prior claim that Perfect 10 never On August 16, counsel for Google also sent a letter to counsel for Perfect 10 asking Perfect 10 to agree to a stay of all discovery. Mausner August 18, 2010 Decl., Exh. B.
2

Notice Submitting to the Court Google's Responses and Objections to Perfect 10's Fourteenth Set of Requests For The Production of Documents

3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

requested the documents at issue. Google's Responses demonstrate that Google is continuing to engage in significant obstruction of discovery in this action. Google continues to refuse to produce documents requested by Perfect 10 that are clearly relevant to this action. Google apparently realizes that these documents will show that Google did not respond to third-party notices and did not have a valid DMCA policy or repeat infringer policy. This Court should reject Google's position, sustain Perfect 10's objections to Judge Hillman's June 16, 2010 Order, and compel Google to produce these relevant documents forthwith. Dated: August 18, 2010 Respectfully submitted, Law Offices of Jeffrey N. Mausner

By: __________________________________ Jeffrey N. Mausner Attorney for Plaintiff Perfect 10, Inc.

Jeffrey N. Mausner

Notice Submitting to the Court Google's Responses and Objections to Perfect 10's Fourteenth Set of Requests For The Production of Documents

4