Perfect 10 Inc v. Google Inc et al

Filing 975

PERFECT 10, INC.'S OPPOSITION TO GOOGLE INC.'S EX PARTE APPLICATION TO STRIKE PERFECT 10'S NOTICE SUBMITTING GOOGLE'S RESPONSES AND OBJECTIONS TO PERFECT 10'S FOURTEENTH SET OF REQUESTS FOR THE PRODUCTION OF DOCUMENTS Opposition to re: 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 Objectio 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 Objectio 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 Objectio #969 filed by Plaintiff Perfect 10 Inc. (Mausner, Jeffrey)

Download PDF
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) Email: Jeff@mausnerlaw.com David N. Schultz (State Bar No. 123094) Email: schu1984@yahoo.com Law Offices of Jeffrey N. Mausner 21800 Oxnard Street, Suite 910 Woodland Hills, California 91367-3640 Telephone: (310) 617-8100, (818) 992-7500 Facsimile: (818) 716-2773 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 PERFECT 10, INC.'S OPPOSITION TO GOOGLE INC.'S EX PARTE APPLICATION TO STRIKE PERFECT 10'S NOTICE SUBMITTING GOOGLE'S RESPONSES AND OBJECTIONS TO PERFECT 10'S FOURTEENTH SET OF REQUESTS FOR THE PRODUCTION OF DOCUMENTS Date: None Set Time: None Set 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; et al., Defendants. Perfect 10's Opposition To Google's Ex Parte Application To Strike Perfect's Notice Submitting Google's Responses and Objections To Perfect 10's Fourteenth Set of Requests For Production of Documents 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 On August 16, 2010, Plaintiff Perfect 10, Inc. ("Perfect 10") received Defendant Google Inc.'s Responses and Objections to Plaintiff Perfect 10, Inc.'s Fourteenth Set of Requests for the Production of Documents ("Google's Responses"). A review of Google's Responses demonstrated that: (1) Defendant Google Inc. ("Google") was continuing to engage in significant obstruction of discovery in this action, including by refusing to comply with discovery propounded by Perfect 10 concerning Blogger; and (2) Google was taking positions in Google's Responses that contradicted prior positions taken by Google in opposition to 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 "Motion for Review"), including that Perfect 10's most recent requests that Google produce its DMCA log, DMCA notices, termination notices, and other documents regarding Blogger were "duplicative" of previous discovery requests propounded by Perfect 10. Accordingly, on August 18, 2010, two days after receiving Google's Responses, Perfect 10 filed a Notice submitting Google's Responses to the Court in connection with the Motion for Review (Docket No. 966) (the "Notice"). Apparently unhappy that this Court has been alerted to its contradictory positions and continued obstruction of discovery, Google has now filed an Ex Parte Application To Strike Perfect 10's Notice Submitting Google's Responses and Objections To Perfect 10's Fourteenth Set of Requests For Production of Documents (Docket No. 969) (the "Application"). The Application lacks good cause, and should be denied by the Court, on the following grounds: I. THIS LITIGATION IS STAYED PURSUANT TO STIPULATION. On August 23, 2010, only six minutes after filing the Application, Google filed a Stipulation For Stay Of Discovery And Other Proceedings 1 Perfect 10's Opposition To Google's Ex Parte Application To Strike Perfect's Notice Submitting Google's Responses and Objections To Perfect 10's Fourteenth Set of Requests For Production of Documents 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 Pending Ruling By Court Of Appeals ("Docket No. 970") (the "Stipulation"). The Stipulation, which was proposed by Google, provides for a stay of discovery and all other proceedings in this Court, except for those matters directly related to the appeal, during the pendency of Perfect 10's appeal of this Court's July 30, 2010 Order, which incorporates by reference this Court's July 26, 2010 Order. For this reason alone, this Court should not grant Google's Application. II. THE NOTICE SHOULD NOT BE STRICKEN BECAUSE IT CONTAINS RELEVANT INFORMATION THAT COULD NOT HAVE BEEN SUBMITTED EARLIER. As explained above, the Notice contains information that is directly relevant to the Motion for Review because it demonstrates Google's continued practice of obstructing the discovery process and withholding relevant documents. Nevertheless, Google advances two grounds for this Court to strike the Notice. As explained below, both fail. Google first asserts that the Notice is improper because it concerns evidence of events that were not before Magistrate Judge Hillman when he issued his June 16, 2010 Order that is the subject of the Motion for Review. Application at 2. It is undisputed, however, that Perfect 10 could not have possibly submitted the Notice before Magistrate Judge Hillman issued his June 16, 2010 Order, because Perfect 10 did not even receive Google's Responses until August 16, 2010. Perfect 10 was justified in not submitting the Notice to Magistrate Judge Hillman because the evidence at issue ­ Google's Responses ­ did not even exist at the time. Under these circumstances, the Notice is not improper and may be considered by this Court. See, e.g., Paddington Partners v. Bourchard, 34 F.3d 1132, 1137-1138 (2d Cir. 1994) (party is barred from presenting further evidence to district court in objecting to a magistrate's ruling only "when it offer[s] no justification for not offering the testimony at the 2 Perfect 10's Opposition To Google's Ex Parte Application To Strike Perfect's Notice Submitting Google's Responses and Objections To Perfect 10's Fourteenth Set of Requests For Production of Documents 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 hearing before the magistrate"). See also Wallace v. Tilley, 41 F.3d 296, 302 (7th Cir. 1994); Hill v. Chalanor, 2010 WL 1257930 *3 n.2 (N.D.N.Y., March 25, 2010).1 Google next asserts that the Notice should be stricken because it purportedly violates Local Rule 7-10. Application at 3. By its very terms, however, Local Rule 7-10 applies only to responses to reply papers. See Local Rule 7-10 ("Absent prior written order of the Court, the opposing party shall not file a response to the reply.") (emphasis added). Here, the Notice cannot possibly be viewed as a response to any reply submitted by Google. On the contrary, the Notice simply attempts to provide the Court with further information based on recent developments that could not have possibly been addressed by Magistrate Judge Hillman or the reply. Google itself has not been hesitant to submit additional briefing in connection with these proceedings absent prior Court order. See, e.g., Google Inc.'s Statement Regarding the Status of DMCA-Related Discovery Issues in P10's Motion for Evidentiary and Other Sanctions, filed June 1, 2010 (Docket No. 885). Nevertheless, Magistrate Judge Hillman chose not to strike that pleading. June 2, 2010 Minute Order dated June 2, 2010 (Docket No. 887). This Court likewise should not strike the Notice, because it does not violate Local Rule 7-10. Accordingly, for all of the foregoing reasons, this Court should deny Google's Ex Parte Application to strike the Notice submitted by Perfect 10. 1 None of the three cases upon which Google mistakenly relies [see Application at 2] is to the contrary. First, none of these three cases involved evidence that did not exist at the time of the ruling of the Magistrate Judge, as is true here. Moreover, United States v. Walker, 601 F.2d 1051 (9th Cir. 1979), one of the cases cited by Google, is wholly inapposite, because it did not even involve a motion for review by a District Court of a ruling by a Magistrate Judge. Finally, Paramount Pictures Corp. et al. v. Replay TV, et al., 2002 WL 32151632 (C.D. Cal., May 30, 2002), another case cited by Google, cites with approval the Second Circuit's opinion in Paddington Partners, cited above, which supports Perfect 10's position. 3 Perfect 10's Opposition To Google's Ex Parte Application To Strike Perfect's Notice Submitting Google's Responses and Objections To Perfect 10's Fourteenth Set of Requests For Production of Documents 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 Dated: August 24, 2010 Respectfully submitted, LAW OFFICES OF JEFFREY N. MAUSNER s/ Jeffrey N. Mausner By: __________________________________ Jeffrey N. Mausner Attorneys for Plaintiff Perfect 10, Inc. Perfect 10's Opposition To Google's Ex Parte Application To Strike Perfect's Notice Submitting Google's Responses and Objections To Perfect 10's Fourteenth Set of Requests For Production of Documents 4

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?