Perfect 10 Inc v. Google Inc et al

Filing 969

EX PARTE APPLICATION to Strike Plaintiff Perfect 10, Inc.'s purported Notice re Statement (Motion related), Statement (Motion related), Statement (Motion related), Statement (Motion related) #966 Submitting Google's Responses and Objections to P10's Fourteenth Set of Requests for the Production of Documents, Submitted in Connection with P10's Motion for Review of, and Objections to, Magistrate Judge Hillmans June 16, 2010 Order filed by Defendant and Counterclaimant Google Inc.(Caruso, Margret)

Perfect 10 Inc v. Google Inc et al

Doc. 969

1 QUINN EMANUEL URQUHART & SULLIVAN, LLP Michael T. Zeller (Bar No. 196417) [e-mail] 2 865 South Figueroa Street, 10th Floor 3 Los Angeles, California 90017-2543 Telephone: [phone] Facsimile: [phone] Charles K. Verhoeven (Bar No. 170151) [e-mail] 5 50 California Street, 22nd Floor 6 San Francisco, California 94111 Rachel Herrick Kassabian (Bar No. 191060) [e-mail] 7 Margret M. Caruso (Bar No. 243473) [e-mail] 8 555 Twin Dolphin Drive, 5th Floor 9 Redwood Shores, California 94065 Attorneys for Defendant GOOGLE INC. 10 11 12 13 14 PERFECT 10, INC., a California corporation, 15 Plaintiff, 16 vs. 17 GOOGLE INC., a corporation; and 18 DOES 1 through 100, inclusive, 19 20 21 22 23 24 25 26 27 28
Case No. CV 04-9484 AHM (SHx) GOOGLE'S EX PARTE APPLICATION TO STRIKE PERFECT 10'S NOTICE SUBMITTING GOOGLE'S RESPONSES TO PERFECT 10'S REQUESTS FOR THE PRODUCTION OF DOCUMENTS Dockets.Justia.com

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CASE NO. CV 04-9484 AHM (SHx) GOOGLE INC.'S EX PARTE APPLICATION TO STRIKE PERFECT 10, INC.'S NOTICE SUBMITTING GOOGLE'S RESPONSES AND OBJECTIONS TO PERFECT 10'S FOURTEENTH SET OF REQUESTS FOR THE PRODUCTION OF DOCUMENTS Hon. A. Howard Matz Date: None Set Time: None Set Crtrm.: 14 Discovery Cut-off: None Set Pretrial Conference Date: None Set Trial Date: None Set

Defendants. AND COUNTERCLAIM

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Pursuant to the Federal Rules of Civil Procedure and Local Rule 7-19,

2 Defendant Google Inc. ("Google") respectfully submits this ex parte application to 3 strike Plaintiff Perfect 10, Inc.'s ("P10") purported Notice Submitting Google's 4 Responses and Objections to P10's Fourteenth Set of Requests for the Production of 5 Documents, Submitted in Connection with P10's Motion for Review of, and 6 Objections to, Magistrate Judge Hillman's June 16, 2010 Order (Dkt. No. 966) 7 ("Notice"). 8 This ex parte application is made on the grounds that P10 may not submit 9 new evidence or arguments on a motion for review of a Magistrate Judge's order 10 and that P10's Notice further violates Local Rule 7-10 by submitting new evidence 11 and briefing on a motion that was already taken under submission. Google makes 12 these requests through an ex parte application because P10's Notice was filed five 13 days after the Court's Order taking P10's Objections under submission (Dkt. No. 14 965), depriving Google of the opportunity to otherwise object to P10's improper 15 pleading. 16 Pursuant to Local Rule 7-19, on August 19, 2010, Google contacted Jeffrey 17 N. Mausner of The Law Offices of Jeffrey N. Mausner (address: 21800 Oxnard 18 Street, Suite 910, Woodland Hills, California 91367, telephone: [phone]), 19 counsel of record for P10, regarding the substance of this ex parte application. 20 P10's counsel stated that it would oppose this application. 21 22 DATED: August 23, 2010 23 24 25 26 27 28
Case No. CV 04-9484 AHM (SHx) -1GOOGLE'S EX PARTE APPLICATION TO STRIKE PERFECT 10'S NOTICE SUBMITTING GOOGLE'S RESPONSES TO PERFECT 10'S REQUESTS FOR THE PRODUCTION OF DOCUMENTS

QUINN EMANUEL URQUHART & SULLIVAN, LLP

By Margret M. Caruso Attorneys for Defendant GOOGLE INC.

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MEMORANDUM OF POINTS AND AUTHORITIES The Court should reject P10's Notice, which is the latest episode of P10's

3 now-familiar practice of serial filings made without leave that violate the Rules and 4 burden the Court. First, the Notice improperly submits new evidence and arguments 5 on P10's Motion for Review of, and Objections to, Magistrate Judge Hillman's June 6 16, 2010 Order (Dkt. No. 923) ("Objections") based on events that occurred after 7 Judge Hillman issued the June 16 Order. Objections to a Magistrate Judge's order 8 must be based on the record on which the Magistrate Judge ruled. See Estate of 9 Gonzales ex rel. Gonzales v. Hickman, 2007 WL 3231956, *2 (C.D. Cal. April 10 17,2007) (in reviewing Magistrate Judge's order under 28 U.S.C § 636(b)(1)(A), 11 "the district court is limited to the record that the magistrate judge had before her in 12 the proceeding below"); Paramount Pictures Corp. et al., v. Replay TV, et al., 2002 13 WL 32151632, *1 (C.D. Cal. May 30, 2002) (sustaining objections to new 14 declarations not presented to Magistrate Judge because "parties objecting to a 15 magistrate judge's order may not present affidavits containing evidence not 16 presented below") (citations omitted); see also United States v. Walker, 601 F.2d 17 1051, 1055 (9th Cir. 1979) ("We are here concerned only with the record before the 18 trial judge when his decision was made."). It is undisputed that the evidence and 19 argument contained in the Notice was not before Judge Hillman. Indeed, the 20 Notice's title concedes that P10 is "submitting [new evidence] in connection with" 21 P10's Objections. Notice at 1. P10's Notice is improper for this reason alone.1 22 23 24 25 26 27 28 The thrust of P10's Notice is that Google's responses to P10's fourteenth set of document requests "contradict" Google's defense of Judge Hillman's June 16 Order. Notice at 2-3. P10's claim is unfounded. Google responses do not claim that P10 previously requested non-P10 Blogger documents, only that P10 already requested and Google produced documents related to P10's notices of infringement. This is because P10 sent some notices related to Blogger and Google produced documents related to its processing of those notices, which are also sought by P10's (footnote continued) Case No. CV 04-9484 AHM (SHx) -2GOOGLE'S EX PARTE APPLICATION TO STRIKE PERFECT 10'S NOTICE SUBMITTING GOOGLE'S RESPONSES TO PERFECT 10'S REQUESTS FOR THE PRODUCTION OF DOCUMENTS
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Second, and independently, the Local Rules do not provide for briefing after

2 the reply--and certainly not after a motion has been taken under submission, as was 3 the case here. To the contrary, the Rules bar a party from submitting additional 4 briefing on a motion after the reply without leave of the court. See Local Rule 7-10 5 ("Absent prior written order of the Court, the opposing party shall not file a 6 response to the reply."); Spalding Labs., Inc. v. Arizona Biological Control, Inc., 7 2008 WL 2227501, at *1 n.2 (C.D. Cal. May 29, 2008) ("The Court strikes and does 8 not consider Spalding's 14-page `sur-opposition' to ARBICO's reply brief.") (citing 9 Local Rule 7-10); DISC Intellectual Properties LLC v. Delman, 2007 WL 4973849, 10 at *1 n.1 (C.D. Cal. Sept. 17, 2007) (rejecting "Defendants ... attempt[] to file a 11 Response to Plaintiffs' Reply in violation of Local Rule 7-10."). P10's Notice 12 includes misleading and groundless argument in support of its Objections,2 in 13 violation of the Rules. 14 P10's Notice's should be stricken in its entirety. However, if the Court is 15 inclined to consider any of P10's erroneous argument or improper new evidence, 16 Google requests leave to file a short, substantive response to them. 17 18 19 20 21 22 23 24 25 26 27 28 new requests. All of the document requests and prior production which Google references in its responses to P10 improper new requests for documents related to Blogger DMCA notices concern Google's processing of P10's Blogger notices. Google's statements that P10 never requested documents concerning Google's processing of non-P10 Blogger notices are entirely consistent with Google's responses that it produced documents related to P10's DMCA notices. 2 For example, P10 claims that the third-party DMCA documents it seeks "are clearly relevant to this action," but bases that claim on their relationship to an issue the Court has decided as a matter of law--the adequacy of Google's "repeat infringer policy." Notice at 3; see also n.1, supra.
Case No. CV 04-9484 AHM (SHx) -3GOOGLE'S EX PARTE APPLICATION TO STRIKE PERFECT 10'S NOTICE SUBMITTING GOOGLE'S RESPONSES TO PERFECT 10'S REQUESTS FOR THE PRODUCTION OF DOCUMENTS

1 DATED: August 23, 2010 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

QUINN EMANUEL URQUHART & SULLIVAN, LLP

By Margret M. Caruso Attorneys for Defendant GOOGLE INC.

Case No. CV 04-9484 AHM (SHx) -4GOOGLE'S EX PARTE APPLICATION TO STRIKE PERFECT 10'S NOTICE SUBMITTING GOOGLE'S RESPONSES TO PERFECT 10'S REQUESTS FOR THE PRODUCTION OF DOCUMENTS