Perfect 10 Inc v. Google Inc et al

Filing 976

NOTICE OF MOTION AND MOTION for Review of Magistrate Hillman's Order of August 10, 2010 On Google Inc.'s Motion to Quash Subpoenas to Shantal Rands Poovala re Order on Motion to Quash Subpoena, Telephone Conference,, #964 filed by Defendant and Counterclaimant Google Inc. Motion set for hearing on 10/4/2010 at 10:00 AM before Judge A. Howard Matz. (Attachments: #1 Memorandum in Support of Google Inc.'s Motion for Review of and Objections to Magistrate Hillman's Order of August 10, 2010 on Google Inc.'s Motion to Quash Subpoenas to Shantal Rands Poovala [Public Redacted], #2 Declaration of Margret Caruso in Support of Google's Motion, #3 Proposed Order)(Caruso, Margret)

Perfect 10 Inc v. Google Inc et al

Doc. 976 Att. 1

2 3 4 5 6 7 8 9 10 11 12 13

QUINN EMANUEL URQUHART & SULLIVAN, LLP Michael T. Zeller Bar o. 196417) michaelzeller @ qulnnemanuel.com Sb5 South Figueroa Street 10th Floor Los Angeles California 9}017-2543 Telephone: [phone] Facsimile ^ 13} 443-3100 Charles Verhoeven (Bar No. 170151) charlesverhoeven@quinnemanuel. coin 50 California Street , 22nd Floor San Francisco ? California 94111 Rachel Herrick Kassabian (Bar No. 191060) rachelkassabian@ quinnemanuel.com Margret M. Caruso (Bar No. 243473) margretcaruso @ q^ulnnemanuel.com 555 Twin Dolphin rive, 5th Floor Redwood Shores, California 94065 Attorneys for Defendant GOOGLE INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

14 PERFECT 10, INC., a California corporation, 15 Plaint 1b
vs.

CASE NO. CV 04-9484 AHM (SHx) GOOGLE INC.'S MEMORANDUM IN SUPPORT OF ITS MOTION FOR REVIEW OF AND OBJECTIONS TO MAGISTRATE HILLMAN'S ORDER OF AUGUST 10, 201.0 ON GOGGLE INC.'S MOTION TO QQUASH SUBPOENAS TO SHANTAL RANDS POOVALA Hon. A. Howard Matz

GOGGLE INC. a corporation; and i8 DOES 1 throug^i 100, inclusive, 19 20 21 22 23 24 25 26 Defendants. AND COUNTERCLAIM

17

Date: October 4, 2010 Time: 10:00 a.m. Crtrm.. 14 Discovery Cutoff: None Set Pre-trial Conference: None Set Trial Date: None Set

L ECLARATION OF MARGRET M. D c : ARUSO FILED CONCURRENTLY HEREWITH]
PUBLIC REDACTED

27 28
Case No. CV 04-9484 AHM (SHx) GOOGLE'S MEMORANDUM IN SUPPORT OF ITS MOTION FOR REVIEW OF MAGISTRATE HILLMAN'S ORDER OF AUGUST 10.2010 Dockets.Justia.com

TABLE OF CONTENTS 2 3 4 II MEMORANDUM OF POINTS AND AUTHORITIES .............................................1 5 PRELIMINARY STATEMENT ..................................................................................1 6 ^ FACTUAL BACKGROUND ......................................................................................2 7 ARGUMENT ..........................................................................:....................................6 8 I. 9 II. 10 11 12 13 14 15 16 17 18 19 20 21 22 III. 23 24 25 26 27 28
Case No . CV 04-9484 AHM (SHx) GOOGLE'S MEMORANDUM IN SUPPORT OF ITS MOTION FOR REVIEW OF MAGISTRATE HILLMAN'S ORDER OF AUGUST I0.2010

Page

STANDARD OF REVIEW ...............................................................................6 THE MAGISTRATE JUDGE'S ORDER IS CONTRARY TO LAW BECAUSE IT FAILS TO GIVE EFFECT TO THIS COURT'S DECISIONS ON GOOGLE ' S SUNIlVIARY JUDGMENT MOTIONS AND P 10 ' S PRELIMINARY INJUNCTION MOTION .............. ....................7 A. B. g The Opinion On Google's Motions for Summary Judg ment Established Certain Facts As No Longer "Genuinely In Dispute ." ........7 The Magistrate's Order is Contrary to Law Because It Allows Discovery On Established Matters ..........................................................9 1. P 10 Is Not Entitled to Again Take Deposition Testimony from Ms. Poovala On Google's Repeat Infringer Policy and Practices ............................................................................... 11 P 10 Is Not Entitled to Further Discovery Regarding Google's Processing of its Deficient DMCA Notices ............... 11 No "Conflict" Exists Between Ms. Poovala ' s Prior y Deposition Testimony and the Consistent Declarations She Made In Support of Uoogle's Summary Judgment Motions ....................................................................................... 12 P 10's New DMCA Notices Are Deficient Under the DMCA Order And Cannot Justify Further Discovery ............... 14

2. 3.

4.

THE ORDER IS CONTRARY TO LAW BECAUSE IT ALLOWS P 10 TO CIRCUMVENT RULE 56(F}' S REQUIREMENTS ....................... 15 THE MAGISTRATE JUDGE'S ORDER IS CONTRARY TO LAW BECAUSE IT FAILED TO CONSIDER THE BURDEN OF THE REQUESTED CUMULATIVE DISCOVERY .............................................. 16 A. B. Further Deposition of Ms. Poovala Would Be Highly Cumulative Of P10's Prior DMCA Discovery And Overly Burdensome ............... 16 P 10's Document Subpoenas Are Invalid, Overbroad, and Unduly Burdensome .......................................................................................... 18

IV.

V. 2

P10'S APPEAL OF THE ORDER ON ITS PRELIMINARY INJUNCTION MOTION MAKES ANY DEPOSITION OF MS. POOVALA PREMATURE AT THIS JUNCTURE ...................................... 21

3 CONCLUSION ......................................................................................................... 22 TABLE 4F AUTHORYTYES 4 Page 5 Cases 6 Access Telecom, Inc. v. MCI Telecomm'ns Corp., 197 N'.3d 694 (5th [;^r. 1999) ................................................................................15 7
An -, 8 - elico v. Lehi Valley Hosp., Inc. SS Fed. Appx. l6 3 (3rd Cir. 2004} .....................................10, 11 9 Ashton-Tate Co v. Ross i. t ^r. ^990} ................................................................................15 10

11 Bhan v. NME Hos itals Inc.

t

xr. ^91) ................................................................................6

12 13 Brae Trans . Inc. v. Coo ers & L brand, 7 .2 ir. 1 t ..............................................................................15

14 Burdick v. Union Securi Ins. Co., 5 a . ec. 3, 200 $} ........................................................17 15 Clinton v. California De t. of Corrections, a . ay , 2009} ............. ......................................... 19 16 17 Concord Boat Co . v. Brunswick Co .,
........................................................................... l $

18
Cris in v. Christian Audi ier Inc.,

19

1

a.

ay 26, 2010) ........................................................6

20 Earthlite Massa e Tables Inc. v. Life ear Inc., 7 a. uy ........................................................13 21 v. The News Coro.. L 22 ...........................................................................20 23 Falicia v. Advanced Tenant Servs·,.Inc ..................................................................... S .20 24 Ferruza v. MTI Technolo , 7 25 .Cal. June 13, 2002} ......................................................6 26 Fulani v. Brad , 6779 {S.D.N.Y. May 19, 1992) ........................................................21 27

Blind & Wall a er Facto
. a.

28

.....................................................................13

Inc.,

_ _ij _ Case No. CV 04-9484 AHM (5Hx} GOOGLE'S MEMORANDUM IN SUPPORT OF ITS MOTION FOR REVIEW OF MAGISTRATE HILLMAN'S ORDER OF AUGUST IO.20I0

Graham v. Case 's General Stores, . n 2) .........................................................................19 Hanni v. American Airlines Inc., 5 a .May 27, 2009} ......................................................21 ^t 4 Kniffen v. Macomb Count , 5^:7]. Mich . November 3, 2006) ............................................I6 6 Kxemen v. Cohen, 7 396 (N.D. Cal . 2007 ) .................................................................... 20 .D. Cal. duly 6, 2007 ) ....................................................... 6. 7

7 L.H. v. Schwarzene er, 8 9

L.W. ex rel. Whitson v. Knox Coun Bd. of Educ., 7, e as ep . 7 .Tenn. Mar. 25, 2008 ) .............. 17

10 Little v. Ci of Seattle, . t ir. 1988} ................................................................................21 11 McCormick v. Ci of Lawrence Kan., 7 an. an . S, 07) ..................................................................6 12 13 Moon v. SCP Pool Co ., . .Cal. 2005) ....................................................................10, 16 14 O'Brien v. Avco Co ., F. upp . 7 .D.N.Y. 1969) .......................................................................21 15 16^ O enheimer Fund Inc. v . Sanders, 7 1 7 ...............................................................................................9 17 Perfect 10 Inc, v. Amazon.co a^. May 12, 2009 IS ) ......................... .............................14 19 20 21 uiksilver Inc. v. 5 uick S orts Int'1 B.v., a . ept. , 2005 ) .....................................................13

Rodri uez-Cuervos v, Wal-Mart Stores Inc., 5 st Ir. ...................................................................................15

22 Schaaf v. SmithKline Beecham Co ., . 5 .................................................................... l $, 19 23 Sullivan v. Ci of S ran field, 7 st Ir . 24 ^ .....................................................................................15 25 26 T 27 28
Case No . CV 04-9484 AHM (SHx) GOOGLE'S MEMORANDUM IN SUPPORT OF ITS MOTION FOR REVIEW OF MAGISTRATE HILLMAN'S ORDER OF AUGUST IU. 20I0

S.A. de C.V. v. Univision Communications, Inc. ov. 17, 2008) ......................................................10 v. Bacardi & Co. Ltd., ..............................................................................9, 11

Travelers Indem. Co. v. Metro olitan Life Ins. Co.,
. orlrl .

........................................................................19

Statutes

17 U.S.C.

................................................................................................. .7 512 c 512 c (3)(A)(ii} ..................................................................................................14 512 d .......... .........................................................................................................7 512 k { 1)(B ) ......................................................................................................... 8

28 § 36(b)C1 )(A) .........................................................................................................6
Fed. R. Civ. P. Rule 26 ................................................................................................................7, 9 Rule 26(b){ 1) .......................................................................................................7, 9 Rule 30 b 6 ............................................................................................... passim 10 Rule 45 ..................................................................................................................10 Rule 45 a 2 (C) ........ .......................................................................................20 .. . 11 Rule 45 c 1 , {c)(3)(A) ..................................................................................16, 18 Rule 56 d 1 .................................................................................................1, 7, 8 12 .................................................................. 15, 16, 17 Rule 56 .. Rule 72 a^ ................................................................................................................6 13 14 15 16 17 18 19

2a
21 22 23 24 25 26 27 28
Case No. CV 04-9484 AHM (SHx) GOOGLE'S MEMORANDUM IN SUPPORT OF ITS MOTION FOR REVIEW OF MAGISTRATE HILLMAN'S ORDER OF AUGUST 10.2010

1 2 3

MEMORANDUM OF POINTS AND AUTHORITIES
Prelimina Statement

On August 10, 2010, Magistrate Judge Hillman denied Google Int.'s

4 ("Google") Motion to Quash Perfect 10 Int.'s {"P10"} Subpoenas to Shantal Rands 5 Poovala ("Ms. Poovala"). Declaration of Margret M. Caruso dated August 24, 2010 6 ("Caruso Decl.") Ex. 1 (Dkt. No. 964) {the "Order"). The Order allows P 10 to 7 depose a witness about issues it has previously deposed her about and which have 8 since been resolved as a matter of law. Google respectfully seeks review of that 9 Order as it is contrary to law and clearly erroneous. 10 The Order fails to reconcile the breadth, burden, and intent of the discovery

11 sought by P 10's subpoenas with the considerable narrowing of the case effected by 12 this Court's orders granting in part Google's Motion for Summary Judgment on its 13 DMCA Safe Harbor Eligibility and denying P 10's Motion for a Preliminary 14 Injunction. Google respectfully submits that neither the testimony sought nor the 15 documents requested are relevant because they are directed at facts that "are not 16 genuinely at issue." See Fed. R. Civ. P. 56(d)(1). Allowing P10 to conduct

17 additional discovery related to the decided DMCA issues defeats a core purpose of 18 Rule 56 and will encourage P 10 continuously to rehash these issues in an effort to 19 re-litigate the DMCA Order. 20 21 The Order is also contrary to law in allowing P 10 a carte blanche deposition of Ms. Poovala whose relevant knowledge is limited to DMCA notice processing

22 issues and whom P 10 already deposed in a Rule 30{b)(6) capacity regarding 23 Google's processing of DMCA notices-and in requiring wholesale production of 24 the subpoenaed documents-which are entirely duplicative of document requests 25 P 10 served on Google. Combined with extensive DMCA discovery, including

26 Google's responses to P10's interrogatories and hundreds of RFAs, the prior 27 deposition of Ms. Poovala reveals that the subpoenas directed at her are cumulative 28 and unduly burdensome . Yet the Order denying Google's motion erroneously

_^_ __ Case No . GV 04-9484 AHM (sHx) GOOGLE'S MEMORANDUM IN SUPPORT OF ITS MOTION FOR REVIEW OF MAGISTRATE HILLMAN'S ORDER OF AUGUST 10.2010

1 ignored the extent of prior discovery and the over breadth of P 10's subpoenas. At a 2 minimum, P 10's appeal of this Court's orders on its preliminary injunction motion 3 and Google's summary judgment motions warrants postponing any discovery from 4 Ms. Poovala until the scope of the issues remaining in this action has been resolved.' 5 Because the Order is contrary to law, this Court should grant Google's

6 objections and motion for review, quash the subpoenas to Ms. Poovala, and issue a 7 protective order prohibiting further discovery from Ms. Poovala. 8 Factual Bac round

9 P10's Prior De osition of Ms. Poovala 10 On November 18, 200$, Perfect 10 deposed Ms. Poovala as Google's Ruie

11 30(b){6) designee on various DMCA topics. Declaration of Andrea Pallios Roberts 12 in Support of Google's Motion to Quash (Dkt. No. 913) ("Roberts Decl."} ¶¶ 3-4, 13 Exs. C (6130108 deposition notice}, D {8128108 Letter to Mausner} & X (1015106 P10 14 deposition notice). Google designated Ms. Poovala to provide testimony regarding 15 non-technical aspects of Google's processing of DMCA notices, and an engineer, 16 Paul Haahr, to discuss the technical aspects of these topics. Id., Exs. C and D. 17 When designating these witnesses, Google reminded P10 that it was receiving a 18 third day of Rule 30{b}(6) deposition testimony on DMCA issues, and that Google 19 would move for summary judgment regarding its entitlement to DMCA safe harbor 20 after the depositions. Yd., Exs. D (8128/08 Letter to Mausner) and O. 21 22 23 24 25 26 27 28
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Despite

Google's warnings and acknowledgement of Ms. Poovala's involvement in 1 Yesterday the parties requested a stipulated stay of discovery and other proceedings during P10's appeal or alternatively a stipulated briefing schedule on Google's Objections to the Order. Dkt. No. 970. Google's filing of these objections is not done to violate the spirit of that request, but in recognition that it is obligated to comply with the fourteen--day deadline of Local Rule 72-2.1. If the Court approves any delay in the briefing of Google's Objections, Google requests leave to file a revised motion to account for any intervening developments, such as appellate rulings.

1 Google's processing of DMCA notices, during her deposition , P 10 did not 2 3 4 answered, 5 and wasted time repeatedly asking questions that she had previously

. Id. ¶^ 4, 5; Supplemental

6 Declaration of Andrea Pallios Roberts in Support of Google's Motion to Quash 7 {Dkt. No. 950) ("Supp. Roberts I7ecl."}, Ex. 1 {Poovala Depo. Tr.); see e.^., id. at 8 18:3-22, 43:25-44:22, 59:12-61:3, 62:5-63:24, 67:23-6$:9 (repeatedly questioning After Google confirmed that the

9 the witness beyond her personal knowledge).

10 deposition was closed P I 0 did not request additional time to examine Ms. Poovala 11 or any other Google witness regarding DMCA issues, nor has P I O ever moved to

12 compel additional Rule 30(b}(6) testimony on the grounds that Google' s designees 13 were unprepared to provide testimony regarding the noticed DMCA topics. Roberts 14 Decl. ¶¶ S, I0. 15 P10 Re resents That It Needs No Further Discove 16 On DMCA Issues.

Months before Ms. Poovala was deposed Google initiated the meet and confer

I7 process with PIO regarding Google's planned motion for summary judgment on 18 Google's entitlement to DMCA safe harbor. Roberts Decl., Ex. D (8128108 Letter to 19 P 10}. After Ms. Poovala's deposition, P I O met and conferred with Google

20 regarding P10's anticipated summary judgment on DMCA and other copyright 21 related issues. Id., Exs. P & Q. During these communications, P 10 represented that

22 the question of Google's entitlement to DMCA safe harbor was "ripe" for 23 adjudication and that further DMCA-related discovery and depositions would be "a

24 waste of time." Id., Ex. U at ¶ 34. After the parties met and conferred, Google f led 25 its motions for summary judgment regarding the DMCA safe harbor. Roberts Decl. 26 ¶ 18. P 10 opposed Google's motions on the merits without making any motion 27 pursuant to Rule 56{f) that it needed additional discovery to do so, and this Court 28
Case No. CV 04-_9484 AHM {SHx} GOOGLE'S MEMORANDUM IN SUPPORT OF ITS MOTION FOR REVIEW OF MAGISTRATE HILLMAN'S ORDER OF AUGUST 10.2010

1

took the motions under consideration. Dkt Nos. 495, 497, and 498, Roberts Decl.

2 Ex. S (8113/09 Order). 3 Following the submission of Google's DMCA summary j udgment motions,

4 P10 successfully argued against further DMCA-related discovery in a hearing on 5 motions to compel brought by Google, stating that it would be wasteful to require "a 6 massive amount of work on things that we may not be awarded damages on." 7 Roberts Decl., Ex. T (914109 Hearing Transcript at 15 :2-16:24). Consistent with its 8 position that no further discovery was necessary for the Court to resolve DMCA9 related issues, P I O represented to Magistrate Judge Hillman that it "is not seeking a 10 continuance under Rule 56{f)" for discovery relating to Google's DMCA motions 11 (Roberts Decl., Ex. V { 12/13/09 Reply in support of P 10's Motion for Evidentiary

12 Sanctions at 24)), and did not argue to this Court that it needed additional discovery 13 relating to Google's DMCA motions. Id., Ex. X (415110 Civil Minutes {Dkt. No. 14 850)) at 6-10.}, Ex. Z (5110110 Hearing Transcript at 4:24-5:1, 7:19-20). 1S P10's Cumulative And Overl Broad Sub oenas of Ms. Poovala 16 Notwithstanding its deposition of Ms. Poovala in her Rule 30{b)(6) capacity

17 about DMCA-related issues-indisputably the only subject she has any relevant 18 knowledge concerning---and its representations that no more DMCA-related

19 discovery was necessary, P10 served document and deposition subpoenas on Ms. 20 Poovala in her individual capacity. Roberts Decl., Ex. A. The subpoenas required 21 an overwhelming number of documents related to Google's DMCA notice

22 processing, including "^a]Il emails and/or other communications between" Ms. 23 Poovala "and any other Google employee relating to the processing of a notice 24 received from any person claiming to be a copyright owner" and "^a]I1 emails, 25 faxes, and/or other communications received by" or "sent by" Ms. Poovala from or 26 to "any person claiming to be a copyright owner," Id., Ex. A {Request Nos. 1-3) 27 {emphasis added). Shortly after receiving the subpoenas, Google began meet and 28 confer efforts regarding them. Id., at ¶ 28. When P10 refused to withdraw them,
__ Case No. CV 04-9484 AHM (SHx) GOOGLE'S MEMORANDUM IN SUPPORT OF ITS MOTION FOR REVIEW OF MAGISTRATE HILLMAN'S ORDER OF AUGUST 10.20I0

1

Google moved for a protective order and to quash the subpoenas. See Dkt. No. 912

2 {Joint Stipulation on Google's Motion to Quash the Poovala Subpoenas ("Joint 3

Stipulation")); see also Dkt. No. 9S 1 (Google's Supplemental Memorandum on its

4 Motion to Quash the Poovala Subpoenas ("Supp. Memo"}).

S

Before the hearing on the Motion to Quash, this Court ruled on both Google's

6 Motion for Summary Judgment and P10's second Motion for a Preliminary 7 Injunction. Dkt. Nos. 937 ("DMCA Order") and 9S3 ("P.I. Order"). Based on these 8 rulings, Google again requested that P10 withdraw the Poovala subpoenas because 9 they had become even less reasonable and more burdensome in seeking evidence 10 relating to issues already decided by this Court, which mooted every reason that P 10 11 identified in its briefing supporting its need for further discovery from Ms. Poovala. 12 Dkt. No. 963-1 {Declaration of Bradley R. Love in Support Of Google Inc.'s 13 Supplemental Statement ("Love Decl."}, Ex. 4 (7131110 Letter from B. Love to J.

14 Mausner)}. P 10 refused, and Google filed a supplemental memorandum explaining 1S the impact ofthis Court's ruling on P10's subpoenas. Dkt. No. 963. 16 The Hearin and Order On Goo le's Motion to uash 17 During the telephonic hearing on Google's motion to quash, P 10 argued that

18 this Court's rulings had not significantly narrowed the action, that many DMCA 19 issues remained, and that any ruling by this Court was subject to revision up until a 20 final order was entered. See Caruso Decl. Ex. 2 (819 Hearing Transcript). Rejecting 21 Google's arguments that the case had been substantially limited and that P10 had

22 repeatedly admitted it did not need further discovery on DMCA issues, Magistrate 23 Judge Hillman tentatively ruled against Google's motion. Id. The next day he The Order

24 issued the Order denying Google's motion to quash the subpoenas.

2S reasoned that P 10 was free to depose Ms. Poovala in her individual capacity 26 separately from her testimony as a Rule 30(b)(6} witness, that an earlier order 27 granting Google's motion to prevent the apex deposition of Google's CEO weighed 2$ in favor of allowing Ms. Poovala's deposition, that alleged discrepancies appeared
Case Na. CV 04-9484 AHM {SHx) GOOGLE'S MEMORANDUM IN SUPPORT OF ITS MOTION FOR REVIEW OP MAGISTRATE HILLMAN'S ORDER OF AUGUST ] 0.2010

1 to exist in the depth of detail provided in Ms. Poovala's prior deposition testimony 2 and her declarations in support of Google's summary judgment motions, and that 3 despite this Court's rulings on Google's motion for summary judgment and P 10's 4 motion for a preliminary injunction, no discovery stay has been sought.2 Order at 25 '' 3. The Order placed no restrictions or limitations on the subject matter or scope of 6 Ms. Poovala's deposition or the document subpoenas. Id. 7 Argument

I.
9

STANDARD OF REVIEW Rulings of magistrate judges on non-dispositive motions may be set aside if

10 "clearly erroneous or contrary to law." 28 U.S.C. § 636(b){1)(A}; Fed. R. Civ. P. 11 72(a); Bhan v. NME Hos itals Inc., 929 F.2d 1404, 1414 (9th Cir. 1991 }. The 12' clearly erroneous standard applies to the magistrate judge's factual fmdings while 13 the contrary to law standard "permits independent review of purely legal 14 determinations by the magistrate judge." Cris in v. Christian Audi ier Inc., 2010 15 WL 2293238, *3 (C.D. Cal. May 26, 2010} (citations omitted) (granting motion for 16 review of Magistrate Judge's denial of motion to quash subpoenas). 17 When a magistrate judge grants discovery requests that are not relevant to the

18 claims or defenses of the case , the magistrate commits reversible error. McCormick 19 v. City of Lawrence, Kan., 2007 WL 38400, at *3 (D. Kan. Jan. 5, 2007} {"The 20 magistrate judge's order is ... clearly erroneous and contrary to law insofar as it 21 orders the production of materials which are both irrelevant to this lawsuit and not

22 responsive to defendant[`s] original discovery request."). See also Ferruza v. MTI 23 Technolo^y> 2002 WL 32344347, at *6 {C.D. Cal. June 13, 2002} (reversing a 24 magistrate's order compelling disclosure of information as "contrary to law," even 25 absent "precedential authority directly on point"); L.H. v. Schwarzenegger, 2007 26 27 28
Case No. CV 04-9484 AHM (SHx) GOOGLE'S MEMORANDUM IN SUPPORT OF ITS MOTION FOR REVIEW OF MAGISTRATE HILLMAN'S ORDER OF AUGUST 10.2010

a The parties' joint request of a stay of discovery and all other proceedings, Dkt. No. 970, had not been f led at the time of the hearing.

1 ^^ WL 2009807, at *4-5 (E.D. Cal. July 6, 2007) ( granting a motion to reconsider a 2 ^^ magistrate's order on a motion to compel because the magistrate's legal analysis 3 was incomplete). 4 II. 5 b 7 8 THE MAGISTRATE JUDGE'S ORDER IS CONTRARY TO LAW BECAUSE IT FAILS TO GIVE EFFECT TO THIS COURT'S DECISIONS ON GOOGLE'S SUMMARY JUDGMENT MOTIONS AND P10'S PRELIMINARY INJUNCTION MOTION, Pursuant to Rule 56(d)(1) of the Federal Rules of Civil Procedure, all issues

9 resolved by summary judgment are deemed established in the action. Accordingly, 10 further discovery concerning such issues would be improper under Rule 26, which 11 provides that the scope of discovery is limited to "any nonprivileged matter that is 12 relevant to any party's claim or defense ." Fed. R. Civ. P. 2b(b)(1). By allowing 13 P 10 to pursue irrelevant discovery from Ms. Poovala related to issues already 14 decided by this Court's DMCA Order , Magistrate Judge Hillman's Order is contrary 15 to law. 16 17 18 A. The Opinion On Google's Motions for Summary Judgment Established Certain Facts As No Lon er "Genuinel In Dis ute." This Court granted the vast majority of Google's motions for summary

19 judgment on its DMCA safe harbor defense. See DMCA Order. The DMCA Order 20 held that Google is entitled to safe harbor for its cache feature under 17 U.S.C. 21 § 512{d), for its Blogger feature under 17 U.S.C. § 512(c}, and for a large portion of

22 the copyright claims relating to Google's web and image search 17 U.S.C. § 512(d). 23 Id. at 2. More specifically, Google is entitled to safe harbor for its web and image 24 search services in relation to copyright claims corresponding to P 10's "Group A," 25 and "Group C," DMCA notices and to those links within "Group B" DMCA notices 26 that failed to adequately provide the information required by the DMCA such as 27 those that "contain incomplete URLs, lack image-specific URLs, or do not reference 28 the copyrighted work with specif city." Id. at 13.
_^_ _ Cass No. CV 04-9484 AHM (SHx) GOOGLE'S MEMORANDUM 1N SUPPORT OF ITS MOTION FOR REVIEW OF MAGISTRATE HILLMAN'S ORDER OF AUGUST ] 0.2010

1

In analyzing Google's motions, the Court held that Google satisf ed the three

2 "threshold conditions" necessary to be eligible for any of the safe harbors under the 3 DMCA, i. e. Google is a "service provider" as defined by 17 U.S.C. § 512{k)( 1)(B); 4 Google accommodates and does "not interfere with standard technical measures" used by copyright owners to identify or protect copyrighted works; and Google has implemented a reasonable repeat infringer policy. DMCA Order at 6-9. In finding Google's repeat infringer policy was reasonably implemented , the Court determined that Google could not have a repeat infringer policy for its search products (which 9 lack subscribers or account holders} and that it adequately terminated repeat or 10 blatant infringers using its Blogger service. Id. at 7-8. 11 Because the DMCA Order did not dispose of the entire action, Fed. R. Civ. P.

12 ^ 5d(d)(1} applies to the decision. Under that rule, the facts that are determined to be 13 "not genuinely at issue" are to be specified in an order on a motion for summary 14 judgment, and having been specified in support of the determinations made by the 15 Court, these facts "must be treated as established in the action." Fed. R. Civ. P. 16 56(d){ 1 }. Thus, the facts determined by the Court as not subject to genuine dispute, 17 including that Google has an adequate repeat infringer policy and that Google is

18 'entitled to DMCA safe harbor for a majority of P10's notices, are established for 1 9 this action and no longer an appropriate subject of discovery. 20
In subsequent orders, this Court conf rmed the narrowed scope of the

21 remaining issues. For example, in denying without prejudice Google's motion to
22f take additional depositions and denying P10's motion for a preliminary injunction, 23 the Court reiterated that "this case has been narrowed substantially as a result of the 24 Court's rulings this week granting Google most of the relief against secondary 25 copyright liability it sought under the Digital Millennium Copyright Act." Dkt. No. 26 946 at 1. The Preliminary Injunction Order reaffirmed that the DMCA Order 27 established "that Google is entitled to DMCA safe harbor for its web and image 28
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search, caching, and Blogger features with respect to each of P 10's Group A and

2 Group C notices, and part of the Group B notices." See P.I. Order at 8. 3 4 5 S. The Ma istrate ' s Order is Contra Discovery On Established Matters_ Because issues resolved on summary judgment are no longer at issue, they are to Law Because It Allows

6 no longer within the proper scope of discovery under Rule 26. See Fed. R. Civ. P. 7 '^ 26(b}{1) (discovery is limited to "any nonprivileged matter that is relevant to any 8 party's claim or defense"}. Accordingly, no further discovery is appropriate

9 concerning Google's eligibility for DMCA safe harbor, the adequacy of Google's 10 repeat infringer policies and the processing of third party DMCA notices, Google's 11 processing of P10's DMCA notices in "Group A" and "Group C," or Google's 12 processing of any notice that does not comply with the DMCA standards set forth in 13 the DMCA Order {i.e. the vast majority of the "Group B" notices and all of the post 14 summary judgment notices sent by P10). Dkt. No. 953, P.I. Order at 7-21; see also 15 Tequila Centinela, S.A. de C.V. v. Bacardi_ & Co. Ltd., 242 F.R.D. 1, 9 {D.D.C. X6i 2007} (limiting discovery to "the requests for production [that] could be construed to 17 be based on one of the remaining issues of the case"); Oppenheimer Fund, Inc. v. 18 Sanders, 437 U.S. 340, 352 {1978} {"it is proper to deny discovery of matter that is 19 relevant only to claims or defenses that have been stricken"). 20 In def ante of this Court's rulings and the Federal Rules of Civil Procedure,

21 P 10 defended its irrelevant and cumulative subpoenas by arguing that "the ruling on 22 the summary judgment motion is hardly a final ruling" and that the DMCA Order 23 could be "revised at any time before the entry of a judgment adjudicating all the 24 claims." See 819 Hearing Transcript at 6:1925. According to P10, this justifies 2S reopening discovery concerning issues the Court already directly ruled on, such as 26 Google's repeat infringer policies, as well as issues substantively resolved by the 27 Court's ruling, such as the adequacy of "DMCA Notices" P 10 sent Google after 28 Google filed its summary judgment motions. Similarly, P 10 asserted that it is
_C}_ Case No. CV 04-4484 AHM (SHx)

^GOOGLE'S MEMORANDUM IN SUPPORT OF ITS MOTION FOR REVIEW OF MAGISTRATE HILLMAN'S ORDER OF AUGUST 10.201 p

1 "entitled to depose [Ms. Paovala] regarding those matters" included within her 2 declarations submitted in support of summary judgment "regardless of Judge Matz's 3 ruling." Id. at 7:5-7. a This Court's DMCA ruling was not a nullity , and P10 ' s continued pursuit of

5 testimony on issues that order resolved and other irrelevant topics unduly burdens 6 Ms. Poovala and is forbidden by Rule 45. See Televisa, S.A. de C.V. v. Univision 7 Communications , Inc., 2008 WL 4951213, *2 (C.D. Cal. Nov. 17, 2008 ) {quashing 8 subpoena where "the testimony and documents sought are irrelevant to the issues 9 presented in this litigation" and because the "unnecessarily large breadth of the 10 request supports a finding that the subpoena constitutes an undue burden."). 11 Like the unlimited deposition it seeks, P10's overbroad document demands

12 are also directed to issues resolved by the DMCA Order, including documents 13 relating to-not merely consisting of-all DMCA notices received by Google, 14 including internal and external communications regarding third party notices. 15 Because such documents are no longer relevant to claims or defenses at issue, P 10's 16 subpoenas for them are unduly burdensome and must be quashed. Se e^e.>~., Moon _ _Se 17 v. SCP Pool Com., 232 F.R.D. 633, 637 (C.D. Cal. 2005} (quashing subpoena that 18 sought documents irrelevant to claims at issue, especially in light of ability to seek 19 the same documents from opposing party}; see also Angelico v. Lehigh,,,.Valley 20 Hos 21 Inc., 8S Fed. Appx. 30$, 3 i 1, 2404 WL 75383, 2 {3rd Cir. 2004)

(disallowance of discovery appropriate where "the only remaining issue before the

22 District Court when [Plaintiff) sought additional discovery was unrelated to his 23 discovery request."). 24 Allowing the cumulative, irrelevant, and burdensome discovery sought by

25 P10's subpoenas was contrary to law and cannot be justified by any of the four 261 topics identified by P 10 in its portion of the Joint Stipulation, each of which is 271 discussed in more detail below. See Roberts Decl. ¶ 30, Joint Stipulation at 25:17-

281 29:9.
Case No. CV 04-9484 AHM (SHx) -1 f1GOOGLE'S MEMORANDUM IN SUPPORT OF ITS MOTION FOR REVIEW OF MAGISTRATE HILLMAN'S ORDER OF AUGUST IO.2010

1.

P 10 Is Not Entitled to Again Take Deposition Testimony from Ms. Poovala On Google's Repeat Infringer Policy and Practices..

The DMCA Order established that " Google employs an adequate repeat infringer policy and practice," because Google "terminates Blogger users who 5 repeatedly or blatantly infringe copyright" and Google is neither required to have a 6 repeat infringer policy for its web search, image search, or caching features, nor able 7 to do so as they have no account holders or subscribers. DMCA Order at 7-9. Thus, 8 Google's repeat infringer practices have been evaluated as a matter of law, 9^ removing them from the scope of both the remaining case and the issues appropriate 10 for further discovery. See Angelico v. Lehigh Valley Hosp^Inc., 8S Fed. Appx. 11 308, 311, 2004 WL 75383, 2 (3rd Cir. 2004) (disallowance of discovery appropriate 12 where "the only remaining issue before the District Court when [Plaintiff) sought 13 additional discovery was unrelated to his discovery request."). 14 15 1b 2. P 10_Is Not Entitled to Further,,, Discovery Regardin Processing of its Deficient DMCA Notices. Ms. Poovala' s declarations in support of Google 's DMCA motions were G^oogle's

17 related to Google's DMCA processing generally and regarding P10's numerous 18 DMCA notices specifically. In connection with the DMCA Order, those statements 19 have already been evaluated . As such, they are no longer the subject of dispute and 20 no additional discovery regarding them is appropriate. See, e.^. Te uila Centinela 21 22 S.A. de C.V., 242 F.R.D. at 9. Moreover, because the DMCA Order established that Google is entitled to

23 safe harbor for all of P 10's "Group A" and "Group C" DMCA notices, as well as for 24 any "Group B" notice that failed to satisfy the DMCA requirements for a compliant 25 notice, {DMCA Order at 12-15}, none of the def cient notices can form the basis of a 26 copyright claim against Google. Accordingly, discovery about any deficient notices 27 is irrelevant. 28 material Of the very few notices that are not deficient, the only remaining Google's DMCA safe harbor eligibility is the

fact concerning

Case No. CV 04-9484 AHM (SHx) GOOGLE'S MEMORANDUM IN SUPPORT OF ITS MOTION FOR REVIEW OF MAGISTRATE HILLMAN'S ORDER OF AUGUST 10.2010

1 ^^ expeditiousness with which Google processed those few notices. See DMCA Order 2 at 14. Yet P 10 has neither proposed limiting Ms. Poovala's deposition to that

3 subject nor explained why such a topic would not be duplicative and cumulative of 4 ^^ the prior deposition of Ms. Poovala. The Order likewise fails to restrict the

S deposition or address its cumulative and overly burdensome nature in light of P 10's 6 prior opportunity to question Ms. Poovala on this very topic. See also Section 1V, 7 ^ ^ A, below, 8 9 10 11 3. No "Conflict" Exists Between Ms. Poovala's Prior De osition Testimony and the Consistent Declarations She Made in Support of Goo le^'S Summary Judgment Motions. One of the justifications for the Magistrate Judge's denial of Google's motion

12 was that "there appears to be some conflict between the pleadings defendant has 13 submitted and Ms. Poovala's testimony at the Rule 30 { b)(6} deposition." Order at 2. 14 The record reveals, however, that Ms. Poovala 's DMCA declarations do not 15 "conflict" with her deposition testimony . For example, P10 asserted that Ms.

1b, Poovala's declaration statement that " Google processes all DMCA notices 171 ^ expeditiously" is contradicted by her testimony 18 19 ^ at 21:20-24. This is not a contradiction or conflict; 20 21 22 Indeed, Ms. Joint Stip.

23 ^ Poovala's declaration regarding Google's processing of P10's DMCA notices is 24 ^ consistent with her testimony that 251

26

Supp. Roberts Decl., Ex. 1 (Poovala Depo.

27 Tr.) at 99:21-100:7. Similarly, Ms. Poovala's statement in her rebuttal declaration 281 that her team copied and pasted "one UR.L at a time from the PDF files" is entirely
_ ^ 2_ Case No. GV 04-4484 AHM (SHx) _ GOOGLE'S MEMORANDUM IN SUPPORT OF ITS MOTION FOR REVIEW OF MAGISTRATE HILLMAN'S ORDER OF AUGUST I0.2010

1 ^^ consistent with her testimony that 2 3

Id. at 111:5-14.
Further, Ms. Poovala's statement that P10's Group C notices failed to identify

4 ^^ the location of infringing material is consistent with her deposition testimony that 5 6 7 ^Tr.) at 100:17-101:14. S extensively about 9 10 11 See^e,^., id., at 9:17-11:4, 12:11-14:20, 17:21-18:2, 23 :425:13, 27:3-30:5, 30:15-31:14, 34:3-23, 36:10-37:7. P10's failure to provide Ms. . Supp. Roberts Decl., Ex. 1 {Poovala Depo. In fact, during her deposition Ms, Poovala testifed

12 Poovala with relevant exhibits the first time around-such as 13 is not a proper basis

14 for seeking a second deposition. See Goo le Inc. v. American Blind & Wa11 a er 15 Facto Inc. 2006 WL 2318803, 3 {N.D.CaI. 2006} (denying further deposition

16 where deposing counsel failed to bring relevant documents because "[d]eponents 17 under Rule 30(b){6) ... need not be subjected to a memory contest.") (citations 18 omitted}; Earthlite Massage Tables, Inc. v. Lifegear^,-Inc., 2006 WL 2056397, * 1 19 (S.D. Cal. July 3, 2006) (quashing subpoena directed at individual who had already 20 been deposed as 30{b)(6) designee); uiksilver, Inc. v. Quick Sports Int'1 B.v., 2005

21 WL 2339148, * 1 (C.D. Cal. Sept. 14, 2005) (denying request to re-depose a 22 corporation's 30(b)(6) witness in his individual capacity because plaintiff already 23 had opportunity to depose him); Roberts Decl. ¶ 5. 24 Moreover, in connection with the DMCA Order this Court rejected P10's

25 arguments against admitting Ms. Poovala's declarations, including its assertions of 26 discrepancies between Ms. Poovala's declarations and her deposition testimony. 27 See P10's Evidentiary Objections to: Declaration and Rebuttal Declaration of 28 Shantal Rands Poovala in Support of Google's Motions for Summary Judgment re
_ ^ ^_ Case No. CV 04-9484 AHM (SHx) GOOGLE'S MEMORANDUM IN SUPPORT OF ITS MOTION FOR REVIEW OF MAGISTRATE HILLMAN'S ORDER OF AUGUST I0.2010

1

Google's Entitlement to Safe Harbor, Dkt. No 587 (54-page objection to Ms.

2 Poovala's declarations ); DMCA Order at 2-3 n. 5 {"Throughout P 10's pleadings], 3 it purports to `dispute' a fact, but then states allegations that are consistent with the 4 ^ ^ asserted fact. The Court will not address these immaterial `disputes,' which do

S nothing more than strain the Court's resources and distract from the real issues in 6 this litigation.") (internal citation omitted); see also id. at 4, 13-15, and 26. 7 Accepting P 10's assertion of "contradictions" without identif cation of any, when 8 none are apparent from the record, and in disregard of the Court's prior rulings was 9 clear error. 10 11 12 4. P 10's New DMCA Notices Are Deficient Under the DMCA Order And Cannot Justi Further Discove

The processing of the DMCA notices that P 10 submitted after those explicitly

13 included within Google's Motions for Summary Judgment is not a proper subject of 14 further discovery in this matter for reasons set forth in the DMCA Order. Like the 15 defective Group B and Group C notices, P 10's recent DMCA notices fail to identify

16i the infringed works (apart from the identification of the alleged infringement). See
17

17 U.S.C. § 512(c)(3)(A)(ii), DMCA Order at 13- 15.

Second , post- litigation

18'^ infringement notices including these sent after Google filed its DMCA motions do 19 not constitute notice within the meaning of the DMCA for the claims at issue in this 20 suit, and are accordingly irrelevant . 21 22 23

Perfect 10 , Inc. v. Amazon.com, 2009 WL

1334364, *5 {C.D. Cal. May 12, 2009) {November 2008 notice sent to A9's copyright agent during litigation, plus notices produced in discovery, were "legally irrelevant"). Third, P 10's theory that it is entitled to deposition testimony about

24 each DMCA notice would perpetually entitle it to depose Ms. Poovala as long as it 25

continued to send DMCA notices to Google. This is not how federal discovery is

26 designed to work, particularly discovery that relates to issues already decided by 27 !summary judgment motions. 28
_ Case No. CV 04-9484 AHM {SHx) GOOGLE'S MEMORANDUM IN SUPPORT OF ITS MOT10N FOR REVIEW OF MAGISTRATE HILLMAN'S ORDER OF AUGUST 10.2010

1 II iii. 2 3

THE ORDER IS CONTRARY TO LAW BECAUSE IT ALLOWS P10 TO CIRCUMVENT RULE 56 F 'S RE UiREMENTS If P 10 wanted additional discovery regarding the issues raised by Google's

4 ^, ^ DMCA summary judgment motions, P 10 was required to seek leave from this Court 5 '^ under Fed. R. Civ. P. 56{f} before opposing Google's DMCA motions . Having 6 chosen not to do so, P 10 waived its right to additional discovery on these issues. 7 i Ashton-Tate Corp. v^Ross, 916 F.2d 516, 520 {9th Cir. 1990) (affirming denial of S request for additional discovery filed after hearing on summary judgment motion); 9 see also Rodri uez-Cuervos v. Wal-Mart Stores Inc., 181 F.3d 15, 23 (1st Cir. 10 1999) ("a party may not attempt to meet a summary judgment challenge head-on but 11 fall back on Rule S6{f) if its f rst effort is unsuccessful.") (citation omitted}; Access 12 Telecom Inc. v. MCI Telecomm'ns Co ., 197 F.3d 694, 719 {5th Cir. 1999} (party 13 waived claims of inadequate discovery by failing to file Rule 56(f) motion); Brae 14 Trans .Inc. v. Coo ers & L brand, 790 F.2d 1439, 1443 (9th Cir. 1986} ("Failure 15 to comply with the requirements of Rule 56(f) is a proper ground for denying 16^ discovery and proceeding to summary judgment."}. Even if P10 had not explicitly 17 waived its right to seek additional discovery on DMCA issues (see Roberts Decl., 18 Ex. V (12113109 Reply in support of P 10's Motion for Evidentiary Sanctions at 24}), 19 P 10 implicitly waived such rights by f ling its own motion on DMCA issues. Dkt. 20 No. 436; see Fed. R. Civ. P. 56(f) (limiting relief to party opposing summary 21 judgment motion); Sullivan v. City of Springfield, 561 F.3d 7,16 (1st Cir. 2009} 22 (rejecting plaintiffs' argument that additional discovery was necessary to decide 23 cross-motions for summary judgment motion because "they affirmatively requested 24 that the court resolve the case on the existing evidence" by f ling the motion). 25 P 10 has blatantly conceded that it intends to use discovery obtained from Ms.

26 Poovala to re-litigate the issues that have already been decided against it in this 27 action. See 819 Hearing Transcript at 6:19-25. But P 10 is not allowed to

28 "circumvent the requirements of Fed. R. Civ. P. 56 {^" by presenting "new"
Case No. CV 04-9484 AHM (SHx} GOOGLE'S MEMORANDUM IN SUPPORT OF ITS MOTION FOR REVIEW OF MAGISTRATE HILLMAN'S ORDER OF AUGUST 10.2010

1 ^^ evidence regarding claims that have already been decided on summary judgment. 2 ^^ See Kniffen v. Macomb County, 2006 WL 3205364, *3 {E.D. Mich. November 3, 3 ^^ 2006 ) (denying reconsideration where moving party failed to request additional 4 ^^ discovery pursuant to Rule 56(f)). Giving P10 the opportunity to seek discovery for S ^^ such an improper purpose was clearly erroneous and contrary to law. 6 II IV. 7 S 9 THE MAGISTRATE JUDGE'S ORDER IS CONTRARY TO LAW BECAUSE IT FAILED TO CONSIDER THE BURDEN OF THE RE VESTED CUMULATIVE DISCOVERY The Order denying Google's motion to quash the subpoenas failed to consider

10 the burden to Ms. Poovala and Google in light of the breadth of discovery P 10 has 11 already obtained and the cumulative and irrelevant nature of the "new" evidence

12 P10 seeks. In permitting P10 to re-depose Ms. Poovala, the Order reasoned that her 13 ^ prior Rule 30(b)(6} testimony did not preclude a deposition in her individual 14 ^ capacity. Order at 2. But on Google's motion to quash, the Magistrate was required 15 not merely to determine whether P 10's subpoenas fell within the procedural limits 16 of the Rules, but also to evaluate whether their substantive scope was appropriate in 17 view of the facts and circumstances. See Fed . R. Civ. P. 4S(c)(1), (c)(3)(A); sce 18 also Moon v. SCP Pool Co ., 232 F.R.D. 633, 637 (C.D. Cal. 2005) ( quashing 19 subpoena that sought documents irrelevant to claims at issue, especially in light of 20 ability to seek the same documents from opposing party ), In failing to reflect any 21 ^ consideration of these issues, the Order is contrary to law. 22 23 24 A. Further Deuosition of Ms. Poovala , ,Would Se Highly Cumulative Of P10' s Prior DMCA Discove And Overl Burdensome.

The Magistrate's Order is contrary to law because it allows P 10 to proceed

25 with discovery that is cumulative of P10's DMCA related discovery, and therefore 26 is unduly burdensome. P 10 has deposed five Google employees on Google's

27 DMCA policies and procedures and taken four days of testimony on Google's 2$ processing of P10's notices (including expeditiousness) and enforcement of its
16_ Case No. CV 04-9484 AHM (SHx)
GOOGLE'S MEMORANDUM IN SUPPORT OF ITS MOTION FOR REVIEW OF MAGISTRATE HILLMAN'S ORDER OF AUGUST 10.20I0

1 ^^ repeat infringer policies. In response to P10's revised interrogatories, Google has 2 provided narrative descriptions regarding numerous DMCA issues (such as its 3 policies and procedures, and its processing of P10's DMCA notices}. Roberts DecL, 4 ¶ 8. P 10 concedes the sufficiency of these responses, having not moved to compel 5 further responses in the more than four years since they were served. Id. Google 6 also provided responses to 715 Requests for Admission, most of which concerned 7 ^ Google's DMCA policies and procedures , and P 10 has not moved to compel fixrther 8 responses to those requests either. Id. ¶ 9. 9 Signif candy, P10 also had the opportunity to depose Ms. Poovala herself about Google's DMCA processing . That deposition was taken in Ms. Poovala's capacity as a Rule 3 0(b)(6) witness , and P 10 never challenged the Buff ciency of the

la
11

12 responses or argued that she was inadequately prepared. Roberts Decl. ¶ 10. P 10's 13 post-hoc dissatisfaction with that deposition and desire for another bite at the apple 14. cannot justify the deposition it now seeks. See Burdick_v._Union Security Ins. Co., 15 2008 WL 5102851 at *3 (C.D. CaI. Dec. 3, 2008 ) ( denying motion to compel

16' second deposition of Rule 30(b)(6) designee when party could have obtained the
17 ^^ information through written discovery responses); see also L.W. ex rel. Whitson v.

18 Knox County Bd. of Educ., 2008 WL 820007, *2, 36 Media L. Rep. 1721 (E.D. 19 Tenn. Mar. 25, 2008) (granting motion to quash deposition subpoena where plaintiff
20 had ample opportunity to previously depose the witness and other witnesses 21 regarding the information sought). Further, on these facts, the order preventing P 10 22 from deposing Eric Schmidt, Google's CEQ, does not affect this analysis. Indeed, 23 all of P 10's representations concerning the ripeness of DMCA issues for summary 2^ resolution and its failure to f le a Rule 56(f) motion or move to compel any of 25 Google's DMCA discovery responses were made before it even noticed the 26 deposition of Mr. Schmidt. 27 In view of the exhaustive nature of prior discovery on DMCA issues, a

28 second deposition of Ms. Poovala regarding repeat infringer policies and
_ 1'].. Case No. CV 04-9484 AHM (SHx) GOOGLE'S MEMORANDUM IN SUPPORT OF ITS MOTION FOR REVIEW OF MAGISTRATE HILLMAN'S ORDER OF AUGUST 10.2010

1 expeditious processing of P10 's DMCA notices would be impermissibly cumulative. 2 This alone justifies granting Google's motion, and the Order's failure even to 3 address the question of burden in this context was clear error. 4 S 6 S. P10' s Document Sub oenas Are Invalid Overbroad and Undul Burdensome. The Order is clearly erroneous in failing to quash Pi0's document subpoenas

7 for over breadth and undue burden. Courts are required to enforce the obligation of 8 the party issuing a subpoena to "take reasonable steps to avoid imposing undue 9 burden or expense on a person subject to the subpoena ," and must quash or modify 10'' document subpoenas that "subject[] a person to undue burden." Fed. R. Civ. P. 11 45(c}(1), {c)(3)(A}; see also Concord Boat Co . v. Brunswick Co ., 169 F.R.D.

12

44, 49 {S.D.N.Y. 1996) ( quashing subpoena requesting broad categories of

13 documents "with little apparent or likely relevance to the subject matter"); Schaaf v. 14 SmithKline Beecham Corp., 233 F.R.D. 451, 455 {E.D.N.C. 2005) (quashing 15 subpoena requesting all corporate records from a corporate employee related to 16 employment over amulti-year period as "a paradigmatic example of a facially 17 overbroad subpoena"). 18 In disregard of its obligation to avoid undue burden, P 10 subpoenaed

19 sweepingly broad categories of documents from Ms. Poovala that address issues that
20 it has already deposed her about and that are entirely duplicative of its requests of 21 Google. For example, P 10's subpoenas demand production of: "All emails and/or other COMMUNICATIONS between SHANTAL RANDS POOVALA and any other Google employee RELATING TO the processing of a notice received from any person claiming to be a copyright owner" {Request No. 1 }; "All emails, faxes , and/or other COMMUNICATIONS received by" or "sent by" Ms. Poovala from or to "any person claiming to be a copyright owner" (Request Nos. 2 and 3); and
Case No. CV 04-9^48^4 AHM (SHx} GOOGLE'S MEMORANDUM IN SUPPORT OF ITS MOTION FOR REVIEW OF MAGISTRATE HILLMAN'S ORDER OF AUGUST 10.2010

22 f· 23 24 25 26 I· 27

2g

1 2 3

·

"Ali COMM[JNICATIONS RELATING TO DMCA notices which Ms. Poovala processed" (Request No. 7). Roberts Decl., Ex. A ( emphases added). On their face, these requests are impossible to comply with. For example, it

4 will not always be clear from a particular document whether its author, recipient, or S sender "claims to be a copyright owner." Nor are the requests limited to documents 6 Ms. Poovala had access to in her role as a Google employee, much less as its 7 DMCA processing agent. Thus, personal correspondence to Ms. Poovala from

8 anyone who has authored a published article would be responsive to P10 ' s requests. 9 Even if limited to Google's records, however, the subpoenaed documents would be 10 within Google ' s control, not Ms. Poovala ' s. Accordingly , Ms. Poovala is not

11 required to produce them under the Federal Rules. See Clinton v. California De t. 12 of Corrections, 2009 WL 1308984, *7 (E.D. Cal. May 11, 2009) (employees are not 13 in possession of all documents kept by their employer); Schaaf, 233 F.R.D. at 4SS 14 (E.D.N,C. 2005) (holding that "by def nition" corporate records are within the 15' control of the corporate party and should be requested from the corporation "even if I6 located in [an individual's] off ce or her home"}. Indeed, recognizing that any 17 potentially relevant documents would be in Google's control, P 10 served duplicate 18 requests on Google in P 10's 11th and 13th Sets of Requests for the Production of I9 Documents to Google. See Roberts Decl., Exs. A, G and H (attaching requests that 20 are themselves duplicative of multiple prior requests from P I O's first ten sets of 21 22 document requests to Google). It is additionally cumulative, wasteful, and harassing to demand that Ms.

23 Poovala search for and re-produce the very same corporate documents that can be 24 obtained directly from Google. See Travelers Indem. Co. v. Metro olitan Life Ins. 25 Co., 228 F.R.D. 1115 114 (D. Conn. 2005} {quashing document subpoena to non26 party when documents were within the control of a party to the litigation); Graham 27 v. Case: r^General Stores, 206 F.R.D. 2S 15 254 (S.D. Ind. 2002) (same}.
__ _ ^ gThe

28 impermissibly broad scope of the document requests issued to both Ms. Poovala and
Case No. CV D4-9484 AHM {SHx)
GOOGLE'S MEMORANDUM IN SUPPORT OF ITS MOTION FOR REVIEW OF MAGISTRATE HILLMAN'S ORDER OF AUGUST 1 D. 20l 0

1 ^^ Google confirms the undue burden imposed by P10's attempt to obtain corporate 2 ^^ documents from a party in the litigation through a subpoena on an employee. 3 ^^ Google has produced documents relating to Ms. Poovala's processing of P10's 4 ^^ notices, and has appropriately objected to P10's new requests for documents relating 5 JJ to her processing of third-party notices. See Roberts Decl. Exs. G and H {responses 6 ^^ indicating Google's production of documents responsive to P10's 11th and 13th Sets 7 JJ of Document Requests}. Despite Google's objections to P10's requests, P10 has not 8 met and conferred with Google to appropriately narrow the objectionable identical 9 requests to Google. Requiring such burdensome and wasteful production from an 10 employee before the parties have met and conferred about the identical document I1 requests served on a parry to the litigation is clear error. 12 Independently, P 10's document subpoena and the document requests included

13 J with its deposition subpoena should be quashed as invalid because they were issued 14 by the District Court for the Northern District of California and purport to compel 15 ^ production of documents to an address outside the Northern District, in Woodland 16 Hills. Fed. R. Civ. P. 45(a)(2}(C) (a subpoena "for production or inspection [of 17 J documents], if separate from a subpoena commanding a person's attendance, [must 18 issue] from the court for the district where the production or inspection is to be 19 made.") Courts routinely quash or otherwise refuse to enforce an invalid subpoena 20 requesting production in another district. See Kremen v. Cohen, 2007 WL 1119396, 21 * 1 (N.D. CaI. 2007) (Northern District of California subpoenas requesting

22 ^ production of documents in the Central and Southern Districts of California were 23 defective on their face); Falicia v. Advanced Tenant Servs. Inc., 235 F.R.D. 5, 11 24 (D.D.C. 2006) (same}; Echostar Commc'ns Co . v. The News Co Ltd., 180

25 F.R.D. 391, 397 (D. Colo. 1998) (same). The Order is clearly erroneous in failing to 26 even address this facial defect in P 10's subpoenas. 27 Because the Order failed to analyze the waste and burden caused by P 10

2$ seeking duplicative and cumulative documents from Ms. Poovala in her individual
_20_ Case No. CV 04-94$4 AHM (SHx) GOOGLE'S MEMORANDUM 1N SUPPORT OF ITS MOTION FOR REVIEW OF MAGISTRATE HILLMAN'S ORDER OF AUGUST 10.2410

1 capacity, and the invalidity of the document subpoenas, it is contrary to law and 2 should be reversed. 3 II V. 4 5 6 P10'S APPEAL OF THE ORDER ON ITS PRELIMINARY

INJUNCTION MOTION MAKES ANY DEPOSITION OF MS. POOVALA PREMATURE AT THIS JUNCTURE The parties have jointly requested that this Court stay discovery and all other

7 proceedings pending resolution of P 10's appeal of the denial of its motion for a 8 preliminary injunction. Dkt. No. 970. Even if that request is denied, however, this 9 Court should stay any further discovery of Ms. Poovala until the appeal has been 10 resolved . See, e.^., Fulani v^Brad_y_, 1992 WL 116779 (S.D.N.Y. May 19, 1992) 11 (staying discovery pending appeal of denial of preliminary injunction based on the 12 potentially dispositive nature of the legal determinations at issue); cam: O'Brien v. 13 Avco Corp., 309 F.Supp . 703, 705 (S.D.N.Y. 1969) ("when, as here, the 14 determination of a preliminary question may dispose of the entire suit, applications 15 for discovery may properly be deferred until the determination of such questions"). 16 Such a stay is appropriate here because the pending appeal is {1} "dispositive on the 17 issue at which discovery is directed"-here, the adequacy of Google's repeat 1S infringer policy and P 10's DMCA notices-and (2) "can be decided without 19 additional discovery." Hanni v. American Airlines; Inc., 2009 WL 1505286, at *7 20 (N.D. Cal. May 27, 2009} (ordering stay of discovery allegedly relevant to a 21 pending summary judgment motion); Little v. City. of_ Seattle, 863 F.2d 681, 685 22 (9th Cir. 198$) {affirming district court's decision to stay discovery until case 23 dispositive summary judgment motion was decided). 24 As Dr. Zada stated in support of P 10's successful request to stay Google's

25 pending discovery motions while dispositive motions were litigated, holding off 26 additional discovery "make[s] a lot of sense... [b]ecause until such time as we know 27 what the Defendants will be held liable for, if anything, you know, for us to have to 28 go through and do a massive amount of work on things that we may not be awarded
_2 7 _ Case No. CV 04-9484 AHM {SHx)

GOOGLE'S MEMORANDUM IN SUPPORT OF ITS MOTION FOR REVIEW OF MAGISTRATE HILLMAN'S ORDER OF AUGUST I0.2010

damages on seems premature." Roberts Decl., Ex. T (914109 Hearing Transcript) at 2 15:2-16:24. In all events, staying P 10's proposed discovery from Ms. Poovala until

3 after its appeal of this Court's orders would enable the burdens placed on her by the 4 subpoena to be limited to the discovery actually necessary for the remaining issues 5 in the case. If the Court grants a stay, Google respectfully requests leave to file an 6 amended motion for review of the Order and supporting memorandum after the stay 7 is lifted. CONCLUSION 9 For the foregoing reasons, Google respectfully requests that the Court sustain

XO its objections to the Magistrate nudge's Order of August 10, 2010 denying Google's 11 Motion to Quash the Poovala subpoenas and reverse the Order by quashing the 12 subpoenas and issuing a protective order protecting Ms. Poovala from deposition or 13 further response to the subpoenas. 14 15 DATED: August 24, 2010 16 17 18 19 20 21 22 23 24 25 26 27 2$I
__ Case No . CV 04-9484 AHM (SHx) GOOGLE'S MEMORANDUM IN SUPPORT OF ITS MOTION FOR REVIEW OF MAGISTRATE HILLMAN'S ORDER OF AUGUST 10.2010

QUINN EMANUEL URQUH.A RT & SULLIVAN, LLP

er ^^ ^^^
Margret M. Caruso Attorneys for Defendant GOOGLE INC.