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. 2

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) margretcaruso@@quinnemanuel.com 8 555 Twin Dolphin Drive, 5th Floor 9 Redwood Shores, California 94065 10 Attorneys for Defendant GOOGLE INC. 11 12 13 14 16 17 vs. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CASE NO. CV 04-9484 AHM (SHx) DISCOVERY MATTER DECLARATION OF MARGRET M. CARUSO 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 Hearing Date: Hearing Time: Courtroom.: 14 October 4, 2010 10:00 a.m.

PERFECT 10, INC., a California 15 corporation, Plaintiff,

18 GOOGLE INC., a corporation; and DOES 1 through 100, inclusive, 19 Defendants. 20 21 AND COUNTERCLAIM 22 23 24 25 26 27 28
01980.51320/3648610.1

Hon. A. Howard Matz Discovery Cutoff: None Set Trial Date: None Set

Case No. CV 04-9484 AHM (SHx) `DECLARATION OF MARGRET M. CARUSO IN SUPPORT OF GOOGLE'S OBJECTIONS TO MAGISTRATE HILLMAN'S ORDER
Dockets.Justia.com

1 2

I, Margret M. Caruso, declare as follows: 1. I am a member of the bar of the State of California and a partner at

3 Quinn Emanuel Urquhart & Sullivan, LLP, counsel for Defendant Google Inc. 4 ("Google") in this action. I make this declaration of my personal and firsthand 5 knowledge, and if called and sworn as a witness, I could and would testify 6 competently thereto. 7 2. Attached as Exhibit 1 is a true and correct copy of Docket No 964, 8 Magistrate Judge Hillman's August 10, 2010 Order Denying Google's Motion to 9 Quash the Subpoenas Directed to Shantal Rands Poovala and for a Protective Order. 10 3. Attached as Exhibit 2 is a true and correct copy of the transcript of the 11 August 9, 2010 hearing before Magistrate Judge Hillman on Google's Motion to 12 Quash Perfect 10 Inc.'s ("P10") subpoenas of Shantal Rands Poovala. 13 14 I declare under penalty of perjury under the laws of the United States of Executed August 24, 2010 at 15 America that the foregoing is true and correct. 16 Redwood City, CA. 17 18 19 20 21 22 23 24 25 26 27 28
01980.51320/3648610.1

___________________ Margret M. Caruso

Case No. CV 04-9484 AHM (SHx) -1DECLARATION OF MARGRET M. CARUSO IN SUPPORT OF GOOGLE'S OBJECTIONS TO MAGISTRATE HILLMAN'S ORDER

Case 2:04-cv-09484-AHM-SH Document 964

Filed 08/10/10 Page 1 of 3 Page ID #:19125

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL Case No. Title CV 04-9484-AHM (SHx) Perfect 10, Inc. v. Google Inc. Date August 10, 2010

Present: The Honorable Sandra L. Butler Deputy Clerk

Stephen J. Hillman CS 8-9-10 Court Reporter / Recorder N/A Tape No.

Attorneys Present for Plaintiffs: Jeffrey Mausner David Schultz Proceedings: (IN CHAMBERS- TELEPHONIC)

Attorneys Present for Defendants: Margaret Caruso

For the reasons set forth below, defendant's Motion to Quash the Subpoenas Directed to Shantal Rands Poovala and for a Protective Order (the "Motion") is DENIED. Defendant Google Inc. has moved to quash the deposition and ducument subpoenas served on its employee Shantal Rands Poovala by plaintiff Perfect 10, Inc. and for a protective order regarding the same. Plaintiff is seeking information relevant to issues regarding its copyright infringement claim against defendant, including whether defendant has expeditiously processed DMCA notices and suitably terminated repeat infringers. (See Joint Stipulation 3:14-15, June 23, 2010). Though plaintiff deposed Ms. Poovala on November 19, 2008, the deposition lasted for less than three hours and was only in her capacity as one of several individuals designated by defendant in response to a Rule 30(b)(6) deposition notice served by plaintiff. (See id. at 3:2-4). Plaintiff now seeks to depose Ms. Poovala in her individual capacity. (See id. at 3:4-5). "A party seeking to prevent a deposition carries a heavy burden to show why discovery should be denied." Google v. American Blind & Wallpaper Factory, Inc., 2006 WL 2578277, at *3 n.3 (N.D. Cal., Sept. 6, 2006) (granting motion to compel the deposition of Larry Page, Google's co-founder and president). "It is very unusual for a court to prohibit the taking of a deposition altogether and absent extraordinary circumstances, such an order would likely be in error." Salter v. Upjohn Co., 593 F.2d 649, 651 (5th Cir. 1979). A party may request the production of documents in connection with a deposition
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Case 2:04-cv-09484-AHM-SH Document 964

Filed 08/10/10 Page 2 of 3 Page ID #:19126

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL Case No. Title CV 04-9484-AHM (SHx) Perfect 10, Inc. v. Google Inc. Date August 10, 2010

subpoena. See Fed. R. Civ. P. 45(a)(2). Further, a subpoena may seek documents in the subpoenaed party's "possession, custody, or control." Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 821 (5th Cir. 2004). However, the Court may quash or modify a subpoena that "subjects a person to undue burden." See Fed. R. Civ. P. 45(c)(3)(A)(iv) The Court may issue a protective order only after the moving party proves the order is necessary "to protect a party or person from annoyance, embarrassment, oppression, or unique burden or expense." Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975); Fed. R. Civ. P. 26(c). Following the August 9, 2010 telephonic oral argument on the Motion, the Court finds that defendant has failed to meet its burden for the deposition notice and document subpoena served on Ms. Poovala to be quashed and for a protective order to be issued. The previous Rule 30(b)(6) deposition of Ms. Poovala does not preclude a deposition of her in an individual capacity. See Fed. R. Civ. P. 30(b)(6). In addition, plaintiff may conduct up to 10 depositions, lasting 7 hours each, without leave of the Court. See Fed. R. Civ. P. 30(a)(2)(A)(I), 30(d)(1). Moreover the recent Order denying plaintiff the opportunity to depose Dr. Schmidt weighs in favor of permitting the individual deposition of Ms. Poovala. Further, there appears to be some conflict between the pleadings defendant has submitted and Ms. Poovala's testimony at the Rule 30(b)(6) deposition. In the Poovala Declaration, she discussed specific actions taken by defendant in response to plaintiff's July 2, 2007 DMCA notice, but at her deposition she appeared to have less knowledge about the same topic. Notwithstanding Judge Matz' recent important case rulings, no stay of discovery has been sought, and plaintiff is permitted to prepare its case as it sees fit. Finally, the documents plaintiff seeks in connection with Ms. Poovala's deposition appear to be relevant to the subject matter of this action and reasonably calculated to lead to the discovery of admissible evidence.

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CIVIL MINUTES - GENERAL

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Case 2:04-cv-09484-AHM-SH Document 964

Filed 08/10/10 Page 3 of 3 Page ID #:19127

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL Case No. Title CV 04-9484-AHM (SHx) Perfect 10, Inc. v. Google Inc. Date August 10, 2010

The Motion therefore DENIED. It is so ORDERED.

cc:

Judge Matz Magistrate Judge Hillman Parties of Record : Initials of Preparer

20

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Case 2:04-cv-09484-AHM-SH Document 967 Filed 08/20/10 Page 1 of 19 Page ID #:19180 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 PROCEEDINGS RECORDED BY ELECTRONIC SOUND RECORDING; TRANSCRIPT PRODUCED BY TRANSCRIPTION SERVICE. APPEARANCES: COURT REPORTER: COURTROOM DEPUTY: TRANSCRIBER: SEE NEXT PAGE RECORDED LA'REE HORN DOROTHY BABYKIN COURTHOUSE SERVICES 1218 VALEBROOK PLACE GLENDORA, CALIFORNIA [phone] UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION

PERFECT 10, INC.,

) ) PLAINTIFF, ) ) VS. ) ) ) GOOGLE, INC., ET AL., ) ) ) DEFENDANTS. ) ______________________________)

CASE NO. CV 04-9484-AHM(SHX) LOS ANGELES, CALIFORNIA AUGUST 9, 2010 (3:08 P.M. TO 3:28 P.M.)

TELEPHONIC CONFERENCE BEFORE THE HONORABLE STEPHEN J. HILLMAN UNITED STATES MAGISTRATE JUDGE

91740

Exhibit 2 - Page 5

Case 2:04-cv-09484-AHM-SH Document 967 Filed 08/20/10 Page 2 of 19 Page ID #:19181 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 APPEARANCES: (CONTINUED) FOR THE PLAINTIFF: LAW OFFICES OF JEFFREY N. MAUSNER BY: JEFFREY N. MAUSNER DAVID NATHAN SCHULTZ ATTORNEYS AT LAW 21800 OXNARD STREET SUITE 910 WOODLAND HILLS, CALIFORNIA 91367 FOR THE DEFENDANT: QUINN EMANUEL URQUHART & SULLIVAN BY: MARGARET CARUSO BRAD LOVE ATTORNEYS AT LAW 555 TWIN DOLPHIN SUITE 560 REDWOOD SHORES, CALIFORNIA 04065

Exhibit 2 - Page 6

Case 2:04-cv-09484-AHM-SH Document 967 Filed 08/20/10 Page 3 of 19 Page ID #:19182 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 INDE CASE NO. CV 04-9484-AHM(SHX) PROCEEDINGS: TELEPHONIC CONFERENCE X AUGUST 9, 2010

Exhibit 2 - Page 7

Case 2:04-cv-09484-AHM-SH Document 967 Filed 08/20/10 Page 4 of 19 Page ID #:19183 4 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 RECORDER. RECORD. MS. CARUSO: -- AND BRAD LOVE FOR GOOGLE. THE COURT: OKAY. I JUST TURNED ON THE TAPE LOS ANGELES, CALIFORNIA; MONDAY, AUGUST 9, 2010; 3:08 P.M. THE CLERK: UNITED STATES DISTRICT COURT, CENTRAL TELEPHONIC CONFERENCE HELD BEFORE

DISTRICT OF CALIFORNIA.

STEPHEN J. HILLMAN REGARDING CASE NUMBER CV 04-9484-AHM(SHX), PERFECT 10, INC. VERSUS GOOGLE, INC., ET AL. COUNSEL, PLEASE STATE YOUR APPEARANCES FOR THE

SO, IT'S MR. SCHULTZ AND MR. MAUSNER. AND I'M SORRY? MS. CARUSO: THE COURT: MS. CARUSO: MR. MAUSNER: THE COURT: MARGARET CARUSO AND BRAD LOVE. OKAY. ARE WE WAITING FOR ANYONE ELSE?

NOT ON OUR SIDE, NO. NOT FROM PERFECT 10. I JUST HAVE A COUPLE OF

OKAY.

QUESTIONS.

ONE IS COULD EITHER SIDE'S POSITION ON THIS

MOTION SHIFT ONCE THE SUPPLEMENTAL PRODUCTION THAT I ORDERED IS COMPLETED, WHICH APPARENTLY IS GOING TO TAKE ANOTHER FEW WEEKS. THAT'S MY FIRST QUESTION. AND, SECONDLY, WHAT IF I'M OVERRULED ON MY SANCTIONS MOTION, DOES THAT PUT THIS DEPOSITION MOTION IN A DIFFERENT POSTURE. MR. SCHULTZ: BEHALF OF PERFECT 10. YOUR HONOR, THIS IS MR. SCHULTZ ON

Exhibit 2 - Page 8

Case 2:04-cv-09484-AHM-SH Document 967 Filed 08/20/10 Page 5 of 19 Page ID #:19184 5 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 I DON'T BELIEVE THAT EITHER IF YOU ARE OVERRULED, OR IF THERE'S ANYTHING THAT'S IN THE SUPPLEMENTAL PRODUCTION WILL AFFECT THE ISSUE BEFORE YOU, WHICH IS PERFECT 10'S DESIRE AND RIGHT TO DEPOSE MS. POOVALA FOR THE FIRST TIME. SO, AT LEAST PERFECT 10'S POSITION IS THAT REGARDLESS OF JUDGE MATZ'S RULING ON THE HEARING THAT'S SET FOR NEXT MONDAY, AND REGARDLESS OF WHATEVER DOCUMENTS ARE PRODUCED, WE NEED TO AND WE'RE ENTITLED TO DEPOSE MS. POOVALA. THE COURT: MS. CARUSO: THE COURT: MS. CARUSO: OKAY. YOUR HONOR? YES. THIS IS MARGARET CARUSO FOR GOOGLE.

WE AGREE THAT THE SUPPLEMENTAL PRODUCTION WOULDN'T HAVE ANY EFFECT HERE. AND IT'S DIFFICULT TO SEE HOW THE

OUTCOME OF A SANCTIONS MOTION WOULD HAVE ANY EFFECT EITHER. AND, YES, WE REACH A DIFFERENT CONCLUSION THAN PERFECT 10 DOES ON THIS AND FIND THAT IN ALL CIRCUMSTANCES JUDGE MATZ'S PRIOR ORDERS HAVE MOOTED ANY POSSIBLE NEED FOR THIS DEPOSITION. THE COURT: WELL, THE DENIAL OF THE PRELIMINARY

INJUNCTION IS HARDLY DISPOSITIVE OF THE CASE. MS. CARUSO: THE COURT: OF THE CASE. YES, YOUR HONOR. IT IS HARDLY -- IT IS NOT DISPOSITIVE

Exhibit 2 - Page 9

Case 2:04-cv-09484-AHM-SH Document 967 Filed 08/20/10 Page 6 of 19 Page ID #:19185 6 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 MS. CARUSO: OF THE CASE. HOWEVER, COMBINED WITH THE SUMMARY JUDGMENT RULING, THERE ARE NO COPYRIGHT ISSUES LEFT IN DISPUTE THAT PERFECT 10 HAS IDENTIFIED ANY TESTIMONY THAT MS. POOVALA WOULD HAVE PERSONAL KNOWLEDGE OF. THE COURT: WELL, WHY ARE THE COPYRIGHT ISSUES NOT THAT'S CORRECT. IT'S NOT DISPOSITIVE

IN DISPUTE ANY LONGER? MS. CARUSO: GIVEN THE SUMMARY JUDGMENT RULING, MS.

POOVALA'S TESTIMONY -- EVERY SUBJECT THAT PERFECT 10 HAS IDENTIFIED THAT SHE MIGHT HAVE RELEVANT KNOWLEDGE OF ALL RELATES TO DMCA ISSUES THAT HAVE BEEN RESOLVED BY THE COURT. MR. SCHULTZ: YOUR HONOR, THIS IS MR. SCHULTZ.

WITH ALL DUE RESPECT TO MS. CARUSO, THERE ARE TONS OF ISSUES THAT REMAIN TO BE LITIGATED WITH RESPECT TO PERFECT 10'S COPYRIGHT CLAIM, INCLUDING ISSUES THAT WERE SPECIFICALLY LEFT OPEN BY JUDGE MATZ IN HIS RULING RELATING TO CERTAIN NOTICES. AND FOR THAT MATTER, REGARDLESS OF JUDGE MATZ'S RULING, AS THE COURT IS WELL AWARE, THE RULING ON THE SUMMARY JUDGMENT MOTION IS HARDLY A FINAL RULING. IN FACT, FEDERAL

RULE OF CIVIL PROCEDURE 54(B) SPECIFICALLY SAYS THAT ANY ORDER OR DECISION THAT ADJUDICATES FEWER THAN ALL THE CLAIMS MAY BE REVISED AT ANY TIME BEFORE THE ENTRY OF A JUDGMENT ADJUDICATING ALL THE CLAIMS AND ALL THE PARTIES' RIGHTS AND

Exhibit 2 - Page 10

Case 2:04-cv-09484-AHM-SH Document 967 Filed 08/20/10 Page 7 of 19 Page ID #:19186 7 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 LIABILITIES. MS. POOVALA IS THE KEY DEPONENT -- IS THE KEY WITNESS APPARENTLY FROM GOOGLE'S PERSPECTIVE RELATING TO ISSUES AS TO HOW THEY DEALT WITH NOTICES THAT WERE SUBMITTED BY PERFECT 10. SHE SUBMITTED TWO DECLARATIONS AND WE'RE

ENTITLED TO DEPOSE HER REGARDING THOSE MATTERS REGARDLESS OF JUDGE MATZ'S RULING. THE COURT: DO YOU AGREE THAT THE SUMMARY JUDGMENT

RULING DISPOSES OF THE COPYRIGHT -- ALL COPYRIGHT CLAIMS? MR. SCHULTZ: THE COURT: NO.

WHICH ONES ARE LEFT? WELL, CERTAINLY, YOUR HONOR, THERE

MR. SCHULTZ:

ARE ISSUES WITH RESPECT TO WHAT WE'VE CALLED THE "B NOTICES" FOR WHICH JUDGE MATZ STATED SPECIFICALLY THAT PERFECT 10 CAN GO FORWARD. SECONDLY, THERE ARE NUMEROUS NOTICES THAT WERE SUBMITTED BY PERFECT 10 FOLLOWING THE FILING OF THE SUMMARY JUDGMENT MOTION WHICH WERE NOT COVERED BY JUDGE MATZ'S RULING, THAT THE SUMMARY JUDGMENT MOTIONS WERE FILED JULY 2ND, 2009, AND THERE WERE NUMEROUS SUBSEQUENT DMCA NOTICES THAT ARE STILL AT ISSUE IN THE CASE, INCLUDING SOME THAT WERE -- THEORETICALLY SHOULD HAVE BEEN ADDRESSED IN THE MOTION FOR PRELIMINARY INJUNCTION. AND, FURTHERMORE, IT'S NOT AT ALL CLEAR TO ME -LOOK, YOUR HONOR, THIS IS NOT THE NORMAL SITUATION WHERE WE

Exhibit 2 - Page 11

Case 2:04-cv-09484-AHM-SH Document 967 Filed 08/20/10 Page 8 of 19 Page ID #:19187 8 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 CASE. WERE A JOHNNIE-COME-LATELY AND WE DECIDED AFTER -- YOU KNOW, WAY DOWN THE LINE TO DEPOSE MS. POOVALA. TO TAKE HER DEPOSITION SINCE LAST FALL. LEAVE. SO, WE -THE COURT: YES, I REMEMBER. WE'VE BEEN TRYING SHE WAS ON MATERNITY

MR. SCHULTZ: -- COULDN'T TAKE HER DEPOSITION THEN. IT SEEMS TO ME TO BE -- WOULD BE GROSSLY UNFAIR WERE THE SITUATION TO BE, HEY, LOOK, YOU CAN'T TAKE HER DEPOSITION WHILE THE SUMMARY JUDGMENT MOTION IS PENDING BECAUSE SHE'S ON MATERNITY LEAVE. NOW THAT SHE'S BACK OFF

MATERNITY LEAVE YOU CAN'T TAKE HER DEPOSITION BECAUSE THE SUMMARY JUDGMENT MOTION HAS BEEN RULED UPON. THERE ARE ISSUES THAT ARE STILL REMAINING IN THE AND OUR POSITION IS WE'RE ENTITLED TO TAKE A

BROAD-BASED DEPOSITION OF MS. POOVALA RELATING TO ALL THE ISSUES THAT ARE RAISED BY HER DECLARATION, AMONG OTHER THINGS. BUT, FRANKLY, WE DON'T KNOW EXACTLY AT THIS POINT HOW THE TRIAL OF THE REMAINING COPYRIGHT CLAIMS ARE GOING TO PLAY THEMSELVES OUT. THE COURT: MS. CARUSO: THE COURT: MS. CARUSO: OKAY. YOUR HONOR? YES. I'D LIKE TO POINT OUT TO YOU THAT

PERFECT 10 MOVED FOR SUMMARY JUDGMENT ON COPYRIGHT ISSUES

Exhibit 2 - Page 12

Case 2:04-cv-09484-AHM-SH Document 967 Filed 08/20/10 Page 9 of 19 Page ID #:19188 9 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 NOTICES. COMPLETE, AHEAD. APART FROM THE DMCA RULING -THE COURT: YES. MS. CARUSO: -- ARGUING THAT DISCOVERY WAS IT ONLY DECIDED I KNOW WHAT YOU'RE GOING TO SAY, BUT GO

IT DIDN'T NEED ANYTHING FURTHER.

-- SERVED US NOTICE FOR MS. POOVALA'S TESTIMONY IN HER PERSONAL CAPACITY -- OF COURSE, IT HAD ALREADY DEPOSED HER PREVIOUSLY -- AFTER THE HEARING ON THE PRELIMINARY INJUNCTION MOTION. SO, THERE HAVE BEEN THESE WAVES OF MOTIONS THAT HAVE DEALT WITH COPYRIGHT ISSUES. WITH THE RECORD ON THOSE. AND P-10 HAS BEEN FINE BUT

NOW, IT WANTS MORE DISCOVERY.

IT STILL REMAINS UNCLEAR WHAT TESTIMONY IT'S GOING TO GET FROM HER THAT'S GOING TO ADDRESS ANYTHING NEW. NOW, THERE'S TWO THINGS THAT PERFECT 10'S COUNSEL JUST IDENTIFIED. ONE IS THE GROUP B NOTICES. AND THERE ARE

VERY FEW OF THOSE THAT ARE AT ISSUE IN THE CASE GIVEN THE COURT'S RULING. AND THE SECOND IS THE POST SUMMARY JUDGMENT ALL OF THOSE, EVEN THOUGH THEY WERE NOT SORT OF PER

SE AN ISSUE IN THE SUMMARY JUDGMENT ORDER THAT CAME OUT, THE COURT'S SUMMARY JUDGMENT ORDER DOES GIVE THE LEGAL GUIDANCE BY WHICH ALL OF THEM CAN BE RESOLVED. BECAUSE UNDER THE

STANDARD THAT'S ARTICULATED BY THE COURT NONE OF THOSE POST SUMMARY JUDGMENT NOTICES ARE ADEQUATE.

Exhibit 2 - Page 13

Case 2:04-cv-09484-AHM-SH Document 967 Filed 08/20/10 Page 10 of 19 Page ID #:19189 10 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 STATUTE. MR. SCHULTZ: WITH ALL DUE RESPECT, OBVIOUSLY, WE THE COURT: MS. CARUSO: ARE WHAT? ARE ADEQUATE OR COMPLIANT WITH THE

DISAGREE AS TO WHETHER OR NOT THOSE NOTICES, WHICH ARE SIGNIFICANTLY DIFFERENT THAN THE NOTICES THAT WERE ADJUDICATED BY JUDGE MATZ. WE DON'T AGREE. THAT'S SOMETHING

THAT WOULD NEED TO BE DETERMINED. WE ALSO DON'T AGREE THAT THERE ARE VERY FEW GROUP B NOTICES THAT NEED TO BE (RECORDING SKIPS) TRIAL HERE. WE ALSO BELIEVE THAT, FRANKLY, UNDER THE CIRCUMSTANCES HERE WE'RE ENTITLED TO TAKE A BROAD DEPOSITION OF MS. POOVALA. FOR MS. CARUSO TO SAY THAT WE ONLY NOTICED

MS. POOVALA'S DEPOSITION AFTER THE PRELIMINARY INJUNCTION HEARING SORT OF -- THAT MAY BE TRUE IN THE MATTER OF TIME, BUT WE TRIED TO NOTICE HER DEPOSITION BACK IN OCTOBER, AND WE WERE TOLD THAT SHE WAS ON MATERNITY LEAVE. AND WE WERE ONLY

TOLD SHE WAS OFF MATERNITY LEAVE RIGHT AROUND -- RIGHT AROUND THE TIME OF THE HEARING ON THE PRELIMINARY INJUNCTION MOTION. WE BELIEVE THAT SHE HAD LOTS OF RELEVANT TESTIMONY RELATING TO THE COPYRIGHT CLAIM. WE PLAYED THOSE OUT. I

MEAN, SHE SUBMITTED -- SHE SUBMITTED TWO DECLARATIONS WITH TONS OF EXHIBITS -- 125 PARAGRAPHS' WORTH OF INFORMATION, 38 ACCOMPANYING EXHIBITS. AND, FRANKLY, WE, PLAINTIFF PERFECT 10, ARE

Exhibit 2 - Page 14

Case 2:04-cv-09484-AHM-SH Document 967 Filed 08/20/10 Page 11 of 19 Page ID #:19190 11 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 GOING. ENTITLED TO DETERMINE WHO IT IS THAT WE WANT TO DEPOSE IN THIS CASE. I MEAN, THE LAST TIME WE WERE -CAN I SAY SOMETHING?

MR. MAUSNER:

THE STATEMENT THAT WE ALREADY NOTICED HER DEPOSITION AFTER THE P.I. IS NOT TRUE. DEPOSITION IN SEPTEMBER 2009. THE COURT: I REMEMBER THAT. FIRST NOTICE. THEY TOLD US THAT SHE OKAY. SO, WE NOTICED HER

MR. MAUSNER:

WAS ON MATERNITY LEAVE AND COULD NOT BE DEPOSED.

WE'VE BEEN TRYING TO TAKE HER DEPOSITION FOR -- WHAT IS IT? -THE COURT: ALMOST A YEAR. -- MONTHS NOW. AND WHAT THEY DO IS AND THEY SAY,

MR. MAUSNER:

THEY DELAY AND THEY DELAY AND THEY DELAY.

WELL, YOU CAN TAKE HER DEPOSITION WHEN SHE COMES BACK FROM MATERNITY LEAVE. LEAVE. AND, THEN, SHE COMES BACK FROM MATERNITY AND NOW THEY'RE SAYING

WE RENOTICE THE DEPOSITION.

WE CAN'T TAKE IT ALL. THAT'S JUST UNFAIR THE WHOLE WAY THIS THING IS EVERYTHING HAS BEEN OBSTRUCTED. WE HAVEN'T BEEN ABLE

TO TAKE ANY DISCOVERY.

AND HERE THEY'RE DOING IT AGAIN WITH

OBVIOUSLY THE MOST RELEVANT WITNESS ON GOOGLE'S SIDE. MR. SCHULTZ: YOUR HONOR, LET ME ADD ONE PARTICULAR

POINT, WHICH IS, AS YOUR HONOR MAY RECALL THE LAST TIME WE SPOKE BEFORE YOU WE WERE DEALING WITH THE MOTION TO QUASH THE

Exhibit 2 - Page 15

Case 2:04-cv-09484-AHM-SH Document 967 Filed 08/20/10 Page 12 of 19 Page ID #:19191 12 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 SUBPOENA FOR GOOGLE'S CHIEF EXECUTIVE OFFICER DR. SCHMIDT. YOU INDICATED YOU THOUGHT IT WAS A CLOSE QUESTION, AND, THEN, YOU SUBSEQUENTLY GRANTED GOOGLE'S MOTION. AND ONE OF THE GRANTS YOU ADVANCED SPECIFICALLY WAS, YOU KNOW, YOU STATED PERFECT 10 SHOULD FIRST DEPOSE OTHER LOWER-LEVEL EMPLOYEES RATHER THAN -- AND I'M QUOTING FROM YOUR ORDER NOW -- QUOTE, LEAPFROGGING TO THE PINNACLE OF GOOGLE'S CORPORATE PYRAMID. THE COURT: RIGHT. AND, OF COURSE, MY ORDER WAS BUT I --

RIGHT BEFORE JUDGE MATZ RULED.

WELL, ANYTHING MORE FROM GOOGLE? MS. CARUSO: YES, YOUR HONOR.

AGAIN, PERFECT 10 SAID THEY DID NOT NEED ANY MORE DISCOVERY TO RESOLVE THE COPYRIGHT ISSUES IN THIS CASE. FILED A SUMMARY JUDGMENT -MR. MAUSNER: WAIT A MINUTE. WHEN DID WE SAY THAT? THEY

GET THE QUOTE WHERE WE SAID THAT. MS. CARUSO: MOTION ON -MR. MAUSNER: OKAY. AND WHERE DO WE SAY THAT WE PERFECT 10 FILED A SUMMARY JUDGMENT

DON'T NEED ANY MORE DISCOVERY IN THIS CASE? MR. LOVE: -- IT WAS DURING THE MEET AND CONFER ON BOTH PERFECT 10 AND GOOGLE'S COPYRIGHT SUMMARY JUDGEMENT MOTION IN THE SUMMER OF 2009. AND WE HAD BEEN MEETING AND

CONFERRING FOR MORE THAN FIVE MONTHS TRYING TO FILE --

Exhibit 2 - Page 16

Case 2:04-cv-09484-AHM-SH Document 967 Filed 08/20/10 Page 13 of 19 Page ID #:19192 13 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 OKAY. THAT? MR. LOVE: YES. THAT'S NOT TRUE. I DID NOT SAY THAT. MR. MAUSNER: OKAY. WHAT WAS THE STATEMENT THAT

WAS MADE AND WHO MADE IT? MR. LOVE: ON A PHONE CALL WITH MS. HERRICK YOU

SAID THAT FURTHER DMCA DISCOVERY WOULD BE A WASTE OF TIME, AND THAT YOU DIDN'T NEED ANYTHING FURTHER BECAUSE SUMMARY JUDGEMENT ON COPYRIGHT ISSUES WAS RIPE -MR. MAUSNER: OKAY. YOU'RE SAYING THAT I SAID

MR. MAUSNER:

I DENY SAYING THAT. MS. CARUSO: WELL, IRRESPECTIVE OF WHETHER YOU SAID

THAT OR NOT, AND THERE WAS NO DECLARATION -MR. MAUSNER: MS. CARUSO: BUT I DIDN'T SAY IT. OKAY. I'LL -OKAY.

MR. MAUSNER: -- I DIDN'T SAY THAT WE DON'T NEED ANY MORE DISCOVERY IN THIS CASE. MS. CARUSO: NOT IN THIS CASE, PERIOD, BUT WITH

RESPECT TO THE COPYRIGHT ISSUES. MR. MAUSNER: MS. CARUSO: NO. AND THE FACT THAT -I DIDN'T SAY THAT

MR. MAUSNER: -- SAY THAT EITHER.

WE DON'T NEED MORE DISCOVERY WITH RESPECT TO THE COPYRIGHT ISSUES. THE COURT: YOU KNOW WHAT. I'M GOING --

Exhibit 2 - Page 17

Case 2:04-cv-09484-AHM-SH Document 967 Filed 08/20/10 Page 14 of 19 Page ID #:19193 14 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 MR. MAUSNER: MAKING THAT UP. THE COURT: OUT FROM THE GUTTER. YOU GUYS ARE REALLY -- YOU GOT TO GET JUST MOVE ON. I THINK I KNOW -- I THINK I I NEVER SAID THAT. AND YOU GUYS ARE

ANY OTHER ARGUMENTS?

HAVE ENOUGH TO RULE, BUT GO AHEAD. MS. CARUSO: THANK YOU, YOUR HONOR.

I WOULD LIKE TO POINT OUT THAT BY OPERATION OF THE FEDERAL RULES WHEN YOU MAKE A MOTION FOR SUMMARY JUDGMENT, YOU ARE IMPLICITLY STATING TO THE COURT THAT YOU DON'T NEED FURTHER DISCOVERY FOR THE ISSUES TO BE RESOLVED. AND AS DR. ZADA SAID IN A PRIOR HEARING BEFORE YOUR HONOR, IT'S PREMATURE TO RECEIVE THIS DISCOVERY UNTIL WE KNOW THE LIABILITY STANDARDS THAT WILL BE IMPOSED UPON THE DEFENDANTS AND WHETHER THEY WILL BE LIABLE -- WHAT THEY'LL BE LIABLE FOR, IF ANYTHING. AND BECAUSE PERFECT 10'S SUMMARY JUDGMENT MOTION IS PENDING, WE PROPOSE THAT THAT FIRST BE ADDRESSED BEFORE THERE'S ANY FURTHER DISCOVERY ON COPYRIGHT ISSUES. MR. SCHULTZ: WITH ALL DUE RESPECT, YOUR HONOR,

THEY HAD AN OPPORTUNITY TO RAISE THAT POINT IN BOTH THE JOINT STIPULATION AND IN THE SUPPLEMENTAL MEMO, AND IT WAS NOT ADDRESSED. MR. MAUSNER: MR. SCHULTZ: I'M NOT SURE WHAT THEY'RE PROPOSING. JEFF.

Exhibit 2 - Page 18

Case 2:04-cv-09484-AHM-SH Document 967 Filed 08/20/10 Page 15 of 19 Page ID #:19194 15 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 ALREADY. MR. MAUSNER: MR. SCHULTZ: THEY'RE PROPOSING THAT OUR -JEFF, JEFF, JEFF.

MR. MAUSNER: -- SUMMARY JUDGMENT MOTION BE DECIDED BEFORE WE GET TO TAKE HER DEPOSITION? SENSE AT ALL. MS. CARUSO: YOU FILED THE SUMMARY JUDGMENT MOTION THAT DOESN'T MAKE ANY

AND SHE HAS PREVIOUSLY BEEN DEPOSED. MR. SCHULTZ: YOUR HONOR, WE'RE NOW GOING OVER I DON'T THINK FILING

ARGUMENTS THAT HAVE BEEN RAISED BEFORE.

A SUMMARY JUDGMENT MOTION IN -- WHICH WAS, BY THE WAY, FILED AT OR ABOUT THE SAME TIME AS GOOGLE'S SUMMARY JUDGMENT MOTIONS. AND, CERTAINLY, WE WERE NOT IN THE POSITION AT THE TIME TO HAVE ANALYZED IN ANY GREAT DEGREE WHAT WAS IN MS. POOVALA'S DECLARATION. AND NOW THAT WE'VE BEEN ABLE TO WE SEE THE

ANALYZE IT WE SEE WHY WE NEED TO DEPOSE HER.

CONTRADICTIONS BETWEEN HER VARIOUS DECLARATIONS AND BETWEEN HER DEPOSITION TESTIMONY -- WHICH IS IN THE RECORDS BEFORE YOUR HONOR, AND I WON'T SPEND THE TIME GOING OVER IT. I DON'T THINK GOOGLE HAS THE RIGHT TO TELL PERFECT 10 WHO IT CAN AND CAN'T DEPOSE WITH RESPECT TO AN ISSUE THAT IS STILL GOING TO BE BEFORE THE COURT IN TRIAL, PARTICULARLY SINCE THERE'S NO FINAL JUDGMENT HERE. WE COULD ALWAYS GAIN

SOMETHING FROM MS. POOVALA WHICH WOULD RAISE ISSUES THAT ARE RELEVANT TO ISSUES THAT MAY HAVE BEEN DECIDED BASED ON THE

Exhibit 2 - Page 19

Case 2:04-cv-09484-AHM-SH Document 967 Filed 08/20/10 Page 16 of 19 Page ID #:19195 16 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 RECORD BEFORE US. SO, I THINK THAT -- I THINK THAT THESE CIRCUMSTANCES, AND BASED UPON OUR PAPERS, UNLIKE THE SITUATION WITH DR. SCHMIDT, THIS ISN'T A CLOSE CALL. WE

SHOULD BE ALLOWED TO TAKE OUR FIRST INDIVIDUAL DEPOSITION OF MS. POOVALA. THE COURT: WELL, I -- MY TENTATIVE RULING IS TO I DON'T THINK THAT THE POSTURE OF THE

AGREE WITH PERFECT 10.

CASE CURRENTLY WARRANTS SIMPLY CUTTING OFF ALL PERCIPIENT DISCOVERY -- PERCIPIENT DEPOSITIONS. AND IT MAY -- IT MAY NOT GET MUCH. I DON'T KNOW.

THERE'S NOTHING THAT REQUIRES THEM TO STATE EXACTLY WHAT THEY'RE GOING TO GET OR PROVE THAT THEY'RE GOING TO GET SOMETHING USEFUL. BUT SINCE, AMONG OTHER REASONS, I DID NOT PERMIT THEM TO PROCEED WITH DR. SCHMIDT, WHILE IT'S PERHAPS A CLOSER QUESTION THAN I'M ACKNOWLEDGING, I LIKELY AM GOING TO ALLOW IT. AND I'LL ISSUE AN ORDER BY WEDNESDAY. MR. SCHULTZ: THE COURT: MS. CARUSO: THE COURT: MS. CARUSO: THANK YOU, YOUR HONOR. THANK YOU ALL.

ALL RIGHT.

YOUR HONOR. YES? THIS IS MS. CARUSO.

I APOLOGIZE IF THIS IS SOMETHING THAT'S ALREADY BEEN ESTABLISHED IN THIS CASE. BUT IN MS. POOVALA'S PRIOR

Exhibit 2 - Page 20

Case 2:04-cv-09484-AHM-SH Document 967 Filed 08/20/10 Page 17 of 19 Page ID #:19196 17 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 HONOR? THE COURT: WELL, WHAT MONTH ARE YOU THINKING OF? DEPOSITION COUNSEL FROM PERFECT 10 SPENT TWO HOURS ASKING HER THE SAME TWO QUESTIONS OVER AND OVER AGAIN. IS THERE AN EXPEDITED PROCEDURE BY WHICH WE CAN CONTACT THE COURT -THE COURT: WELL, MR. MAUSNER -- I THINK MR.

MAUSNER MAY RECALL MANY YEARS AGO IN ANOTHER PERFECT 10 CASE I ACTUALLY WAS AVAILABLE -- AND MAYBE THIS CASE -- I WAS AVAILABLE. THERE BECAME A CRISIS DURING A DEPOSITION. AND

I'M WILLING TO DO THAT IN THIS CASE. SO, IF YOU SCHEDULE IT FOR A DAY, MAKE SURE IT'S A DAY THAT I'M NOT ON THE BENCH AND I'M HERE. AND IF THERE'S A

PROBLEM, I'LL RESOLVE IT RIGHT THEN ON THE PHONE. MR. MAUSNER: HOW SHOULD WE DETERMINE THAT, YOUR

I MEAN, I COULD TELL -MR. MAUSNER: THE COURT: I WOULD GUESS SEPTEMBER.

I COULD TELL YOU THE WEEK I'M GOING TO NO, I'M SORRY. I'M GOING

BE AWAY IS THE WEEK OF THE 20TH.

TO BE AWAY -- I GUESS THE FIRST HALF OF SEPTEMBER IS BETTER THAN THE SECOND HALF. MR. MAUSNER: MR. SCHULTZ: THE COURT: LET ME PUT IT THAT WAY. I'M SORRY. I GOT YOU. I DIDN'T HEAR THE --

I'M HERE MORE OFTEN THE FIRST HALF OF

SEPTEMBER THAN THE SECOND HALF OF SEPTEMBER.

Exhibit 2 - Page 21

Case 2:04-cv-09484-AHM-SH Document 967 Filed 08/20/10 Page 18 of 19 Page ID #:19197 18 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 MR. MAUSNER: MR. SCHULTZ: OKAY. I'M ASSUMING WHAT WILL HAPPEN, YOUR

HONOR, IS WE'LL GET AVAILABLE DATES FROM -THE COURT: I DON'T KNOW, THEY MAY APPEAL ME. I DON'T KNOW. WELL, I ASSUME WE'LL GET SO,

IT MAY BE OCTOBER OR NOVEMBER. MR. SCHULTZ: OKAY.

AVAILABLE DATES, YOUR HONOR, AND WE'LL OBVIOUSLY TRY TO RUN IT BY YOUR CLERK IF THAT'S SOMETHING THAT WE DECIDE MAKES SENSE. THE COURT: OKAY.

THANK YOU ALL. MR. SCHULTZ: THE COURT: THANK YOU VERY MUCH, YOUR HONOR. BYE.

ALL RIGHT.

MR. MAUSNER:

THANK YOU.

(PROCEEDINGS CONCLUDED 3:28 P.M.)

Exhibit 2 - Page 22

Case 2:04-cv-09484-AHM-SH Document 967 Filed 08/20/10 Page 19 of 19 Page ID #:19198 19 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 DOROTHY BABYKIN ______________________________ FEDERALLY CERTIFIED TRANSCRIBER DOROTHY BABYKIN 8/20/10 ___________ DATED I CERTIFY THAT THE FOREGOING IS A CORRECT TRANSCRIPT FROM THE ELECTRONIC SOUND RECORDING OF THE PROCEEDINGS IN THE ABOVE-ENTITLED MATTER. CERTIFICATE

Exhibit 2 - Page 23