Perfect 10 Inc v. Google Inc et al, No. 2:2004cv09484 - Document 264 (C.D. Cal. 2008)
Court Description: MEMORANDUM in Opposition to MOTION for Review of Portions of Magistrate Judge Hillman's Order of February 22, 2008 Granting in Part Perfect 10's Motion to Compel Defendant Google, Inc. to Produce Documents, and Objections Thereto; Memorandum of Points and Authorities i 257 Google Inc.'s Opposition to Perfect 10, Inc.'s Motion for Review and Reconsideration of Portions of Magistrate Judge Hillman's Order of February 22, 2008 Granting in Part and Denying in Part Perfect 10's Motion to Compel filed by Counter Claimant Google Inc, Defendant Google Inc. (Attachments: # 1 Declaration of Rachel M. Herrick Regarding Google Inc.'s Opposition to Perfect 10, Inc.'s Motion for Review and Reconsideration of Portions of Magistrate Judge Hillman's Order of February 22, 2008, and Exhibits A-H Thereto# 2 Proposed Order Denying Perfect 10, Inc.'s Motion for Review and Reconsideration of Portions of Magistrate Judge Hillman's Order of February 22, 2008)(Zeller, Michael)
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Perfect 10 Inc v. Google Inc et al Doc. 264 7 QUINN EMANUEL URQUI -IART OLIVER & HEDGES, LLP Michael T. Zeller Bar o. 196417) mi chae 1 zell er@qumnemanuel. com 865 South Figueroa Street, 10th Floor Los Angeles, California 90017-2543 Telephone : 213) 443-3000 Facsimile: 213 ) 443-3100 Charles K. erhoeven .(Bar No. 170151 } charlesverhoeven@ umnemanuel.com 50 California Street, 2nd Floor San Francisco , California 94111 Rachel M. Herrick (Bar No . 191060) rachelherrick^ ^ aa,,quinnemanuel . com 8 555 Twin Dolphrn Drive, Suite 560 Redwood Shores , California 94065-213 2 3 4 5 6 9 Attorneys for Defendant Google Inc. 10 11 UNITED STATES DISTRICT COURT 12 CENTRAL DISTRICT OF CALIFORNIA 13 PERFECT 10, INC., a California corporation, 14 Plaintiff, 15 vs. 16 GOOGLE INC. a corporation; and 17 DOES 1 through 100, inclusive, Defendants. 18, 19 AND COUNTERCLAIM GOOGLE INC.'S OPPOSITION TO PERFECT 10 INC.'S MOTION FOR REVIEW ANA RECONSIDERATION OF PORTIONS OF MAGISTRATE JUDGE HILLMAN'S ORDER OF FEBRUARY 22, 2008 GRANTING IN PART AND DENYING IN PART PERFECT 10'S MOTION TO COMPEL Hon. A. Howard Matz 20 21 PERFECT 10, INC., a California corporation, 22 Plaintiff, 23 '^ CASE NO. CV 04-9484 AHM (SHx) Consolidated with Case No. CV 05753 AHM (SHx)] VS. Courtroom: 14 Hearing Date: April 14, 200$ Hearing Time: 10:00 am Discoverer Cutoff: None Set Pretrial Conference Date: None Set Trial Date: None Set 24 AMAZON.COM, INC., a corporation; A9.COM, INC. a corporation; and 25 DOES 1 throug^x 100, inclusive, 26 Defendants. 27 28 GOOGLY INC.'S OPPOSITION TO PERFECT I0, I7VC.'S MOTION FOR REVIEW AND RECONSIDERATION Dockets.Justia.com 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 Preliminary Statement 3 Perfect 10' s motion for review of Magistrate Judge Hillman's February 4 22, 2008 Order makes two main arguments . First, Perfect 10 posits that the 5 Magistrate Judge should have compelled Google to give a testimonial response to 6 ^ document requests, despite the fact that Federal Rule of Civil Procedure 34 7 imposes no such requirement. Second, Perfect 10 argues that the Magistrate Judge 8 should have compelled Google to produce deposition transcripts from an unrelated 9 case involving unrelated parties raising unrelated claims involving unrelated 10 copyrighted works. Facial infirmities of these arguments aside, Perfect 10 does not 11 even argue-let alone demonstrate-that the challenged rulings are contrary to 12 law. Nor does Perfect 10 identify any factual errors at all much less clear errors. 13 Perfect 10's motion should be denied. 14 15 Ar>?ument 16^ 17 z. 18 STANDARD OF REVIEW The Magistrate Judge's order must stand unless " clearly erroneous or 19 ^ contrary to law." 28 U.S . C. § 636(b)(1){A); Fed . R. Civ. P. 72(a); Local Rule 7220 2^1; Bhan v. N1VIE Hospitals, Inc., 929 F.2d 1404 , 1414 (9th Cir. 1991). The 21 clearly erroneous standard applies to the magistrate judge's factual f ndings while 22 the contrary to law standard applies to the magistrate judge's legal conclusions, 23 which are reviewed de novo. Columbia Pictures, Inc. v. Bunnell, 24S F.R.D. 443, 24 446 (C.D . Cal. 2007} {citing YYolpin v. Philip MoYris, Inc., 189 F.R. D. 41 $, 422 25 (C.D. Cal. 1999}). 26 27 28 GOOGLE INC.'S OPPOSITION TO PERFECT 10, INC.'S MOTION FOR REVIEW AND RECONSIDERATION II. THE MAGISTRATE JUDGE DID NOT COMMIT CLEAR ERROR 2 BY DECLINING TO REQUIRE GOGGLE TO PROVIDE 3 TESTIMONIAL RESPONSES TO CERTAIN DOCUMENT 4 RE VESTS NOS. 135 136 AND 137 . S In his ruling on Perfect 10's Motion to Compel, the Magistrate Judge 6 compelled responses to Ferfect 10's Requests for Production Nos. 135-37 (to the 7 extent they were not so-called "mega-requests "),' but rejected certain additional 8 proposed language from Perfect 10 that would require Google to provide 9 testimonial responses to these document requests. Perfect 10 now objects to these 10 rulings to the extent that the Magistrate Judge declined to include the proposed 11 additional language. Perfect 10's objection should be overruled, because the 12 Magistrate Judge's rejection of this additional proposed language was entirely 13 consistent with Rule 34, and thus, was not clearly erroneous nor contrary to law. 14. See Fed. R. Civ. P. 72{a} and Local Rule 72-2.1. 15 The Magistrate Judge's rulings, and the additional language which 16 Perfect 10 proposed and which the Magistrate Judge rejected, are as follows: __. 1Vla^is^r^te Judie 's Order on' the 17 Perrfect 'Perfect 10's Pro>osed and:. 1:0's Request Rejected ^dd><tignal 18 Request ° Language;; 19 20 Order on Request for Production For each of the nine Perfect 10 model names listed in Exhibit B attached to the Fifth Document At the time of production, Google must state whether or not it has produced 21 22 ' See Order re. Perfect 10's Motion to Compel Defendant Google Inc. to Produce Documents, entered February 22, 2008, at pp. 2 and 7 {Further Order No. 24 3) (attached as Exhibit A to the Declaration of Rachel M. Herrick ("Herrick Decl."), executed March 26, 2008, filed concurrently herewith). 23 25 26 27 Z See Herrick Decl., Exh. A {Order at p. 2). 3 See Herrick Decl., Exh. B{(Proposed) Order re. Perfect 10's Motion to Compel Defendant Google Inc. to Produce Documents, submitted February 20, 2008, at 3-S}. 28 -J- GOOGLE INC. 5' OPPOSITION TO PERFECT 10, INC. S MOTION FOR REVI ^^^^^ EW AND RECONSIDERATION 1 No. 135 2 3 4 5 6 7 Request, existing logs, data, documents and information from the Google Trends Data Base or elsewhere, suff dent to determine the approximate number of GOGGLE Web Searches which included the name of that model, for each of the years 2001 through 2006 or for any portions of those years if yearly summaries do not exist, existing logs, data, documents and information sufficient to determine the approximate number of GOGGLE Web Searches which included the name of that model , for each of the years 2001 through 2006 or for any portions of those years if yearly summaries do not exist. For each of the terms Perfect 10, Perfect Ten , Perfect 10 , and perfectl0 . com, existing logs, data, documents and information from the Google Trends Data Base or elsewhere suffdent to determine the approximate number of GOGGLE Image Searches done which included that term, for each of the years 2001 through 2006, or for any portions of those years if yearly summaries do not exist. At the time of production, Google must state whether or not it has produced existing logs, data, documents and information sufficient to determine the approximate number of GOGGLE Image Searches done which included that term, for each of the years 2001 through 2006, or for any portions of those years if yearly summaries do not 8 Order on Request for 10 Production 11' No. 136 9 12 13 14 15 16 17 exist. 18 19 20 21 221 23 24 25 26 27 Order on Request for Production No. 137 For each of the nine Perfect 10 model names listed in Exhibit B attached to the Fifth Document Request, existing logs, data, documents and information from the Google Trends Data Base or elsewhere sufficient to determine the approximate number of GOGGLE Image Searches which included that model name , for each of the years 2001 through 2006, or for any portions of thane years if yearly summaries do not exist. At the time of production, Google must state whether or not it has produced existing logs, data, documents and information sufficient to determine the approximate number of GOGGLE Image Searches which included that model name, for each of the years 2001 through 2006, or for any portions of those years if yearly summaries do not exist. 28 GOGGLE 1NC.'S OPP051T10N TO PERFECT I0, INC.'S MOTION FOR REVIEW AND RECONSIDERATION 1 The Magistrate Judge did not impose the requirements sought in 2 (Perfect 10's proposed order at the hearing on Perfect 10's Motion to Compel.4 Nor 3 did he do so in his Order, and rightly so. Rule 34 permits a party to request that 4 certain documents be produced or made available for inspection. Fed. R . Civ. P. 5 34{a){1) and (2). Generally speaking, the party to whom the request is directed 6 must then either {1) state objections (Rule 34(b){2)), (2) state that inspection will 7 be allowed (Rule 34{b)(2){B) and {C )), or (3) produce the requested documents 8 (Rule 34{b)(2){E)).5 9 However, there is no obligation whatsoever in Rule 34 to give the 10 kind of narrative and testimonial response Perfect 10 seeks. See In re G-I Holdings 11 Inc., 218 F.R.D. 428, 439 {D. N.J. 2003) ("Unlike Rule 33(d}, which governs 12 Interrogatories, Rule 34(b) does not require the responding party to make 13 specif cations for all document productions."}; Stiller v. Arnold, 167 F.R.D. 68, 70 14 {N.D. Ind. 1996) (noting that a response to a Rule 34 request "shall state, with 15 '' respect to each item or category, that inspection and related activities will be 16 permitted as requested, unless the request is objected to, in which event the reasons 17 for the objection shall be stated"); Cardenas v. Dorel Juvenile Group, Inc., 230 18 F.R.D. 611, 619 (D. Kan. 2005) (same). 19 Perfect 10 understood this principle well when it presented its 20 arguments to the Magistrate Judge on the Order at issue here, stating that "Google 2i argues that a federal court does not have the power to order a party to state whether 22 23 24 25 26 27 a See Herrick Decl., Exh. C (November 27, 2007 Hearing Transcript at 57:22 58:6). 5 Google has, of course, served written responses and objections to all of Perfect 10's document requests, including Request Nos. 135, 136 and 137. See Herrick Decl., Exh. D (Defendant Google Int.'s Responses and Objections to Plaintiff s Fifth Set of Requests for the Production of Documents, dated February 23, 2007, at 10-11). 28 J - GOOGLE INC.' S OPPOSITION TO PERFECT f0, INC.'S MOTION FOR REVIEW AND RECONSIDERATION 1 or not it has complied with a document request by incorrectly limiting to the Court 2 to what is required by the Federal Rules in the absence of a courtt o^de^." Herrick 3 Decl., Exh. E (Joint Statement Regarding {Proposed) Order on Perfect 10's Motion 4 to Compel Defendant Google Inc. to Produce Documents, submitted February 20, 5 2008, at 6-7) (emphasis in original). Having failed to obtain a court order to the 6 ^^ contrary, however, Perfect 10 has now revised its view of the Federal Rules, 7 ^I contending that Rule 34 does impose such a requirement. Perfect 10's attempt to 8 stretch Rule 34's provision fora "respon[se] in writing" (see Fed. R. Civ. P. 9 34{b)(2){A)) to include the sort of testimonial commentary regarding the existence 10 or sufficiency of the documents produced, as Perfect 10's proposed language would 11 do, should be rejected out of hand, and the Magistrate Judge was well within his 12 discretion to do so. See Fed. R. Civ. P. 72(a}. 13 Perfect 10's proposed language should be rejected for the additional 14 reason that it has steadfastly refused to confirm whether it has produced documents IS in response to particular document requests propounded by Google. Specif cally, 16 in Google's prior motion to compel, brought on February 13, 2006, Google asked 17 this Court to order Perfect 10 to modify its manner of production of documents in 18 several respects, including by confirming that no responsive documents existed, 19 where appropriate. See, e.g., Herrick Decl., Exh. F (Joint Stipulation re: Google's 20 Motion to Compel Production of Documents and Responses to interrogatories, 21 dated February 13, 2006, at pp. 7-12, 24 {"Google requests that this Court compel 22 Plaintiff to supplement its written responses to { 1 }indicate which documents 23 respond to each of Google's requests for production ...and (2) indicate that no 24 responsive documents exist to a particular request when this is the case." ... 25 "Google asks that the Court compel Plaintiff to ...supplement its responses to 26 Document Request Nos. 2 and 35 to clarify that no additional responsive 27 documents exist other than the ones it agreed to produce if that is in fact the case . . 28 ..")). Google asked the Court to so order because Perfect 10's document -.6- GOGGLE INC.'S OPPOSITION TO PERFECT ] 0, INC.'S MOTION FOR REVIEW AND RECONSIDERATION 1 production was disorganized and undecipherable in many respects. Perfect 10 2 resisted Google's motion and refixsed to modify its manner of production, see id. at 3 12-13, and the Court deferred ruling on the issue. ,See Herrick Decl., Exh. G 4 {Order Regarding Google, Inc.'s Motion to Compel Production of Documents and 5 ^^ Responses to Interrogatories, dated May 22, 2006, at 2-3}. b Perfect 10 has articulated no plausible basis for imposing this 7 ^ ^ requirement unilaterally, because there isn't one. Perfect 10 cannot have it both 8 ways. The Magistrate Judge was well within his discretion in refusing Perfect 10's 9 ^^ request in these circumstances. It was not an error at all, much less a clear one. 10 III. THE MAGISTRATE JUDGE'S REFUSAL TO IMPOSE THIS SAME 11 OSL^GATYON REGARDING,ALL OF PERFECT 14'S REQUESTS 12 WAS NOT CLEARLY ERRONEOUS. 13 Following the November 27, 2007 hearing, Perfect 10 proposed to the 14 ^ Magistrate Judge that he adopt the following as "Further Order No. 2": 15 On or before 16 response to Perfect 10, stating whether it has produced documents in 17 response to each request. If no responsive documents exist, Google 18 shall so state. , 2008, Google shall provide a written 19 See Herrick Decl., Exh. B ((Proposed) Order re: Perfect 10's Motion to Compel 20 Defendant Google Inc. to Produce Documents, submitted February 20, 2008, at 21 12}. Google pointed out that the Magistrate Judge made no such order, and the 22 Magistrate Judge agreed, declining to include such a ruling in his Order. 23' For the same reasons discussed above regarding Request Nos . 135-37, 24 this decision was entirely proper as applied to all of Perfect 10's Requests. The 25 requested "further order" was not required by the Federal Rules of Civil Procedure, 26 and given Perfect 10's own refusal to provide such a conf rmation regarding 27 Google's document requests, the Magistrate Judge was well within his discretion to 28 reject it. See Fed. R. Civ. P. 72(a). GOOGI.E ING'S OPPOSITION TO PERFECT 10, INC.'S MOTION FOR REVIEW AND RECONSIDERATION 1 2 ^ IV. THE MAGISTRATE JUDGE'S DENIAL OF PERFECT 10'S 3 MOTION TO COMPEL A REQUEST FOR IRRELEVANT 4 DOCUMENTS FROM AN UNRELATED CASE WAS NOT 5 CLEARLY ERRONEOUS (REQUEST NO. 197). 6 The Magistrate nudge made the following ruling with respect to 7 Perfect 10' s Request No. 197: 8 Perfect 10's Motion to Compel production of documents in response 9 to Request 197 ("Copies of the deposition transcripts of all 10 employees , officers and directors of Google taken in connection with 11 the lawsuit Columbia Pictures 1'ndustries , et. al. v. Drury et.al,, 12''^ pending in the U.S. District Court for the Southern District of New 13 York."} is hereby DENIED. 14 ^ See Herrick Decl., Exh . A (Order at p. 7). 15 The Court's refusal to require production of these transcripts was 16 proper, and in no way " clearly erroneous ," because Perfect 10 articulated no 17 ^ plausible theory of relevance regarding these materials . The Drury case involved 18 ^ claims by various movie studios against various websites alleged to be direct 19 infringers of the studios ' movies. Neither Google nor Perfect 10 were parties to the 20 case. Perfect 10 's only theory of relevance is that "there is at least an inference that 21 Google did the same" thing vis-a -vis Perfect 10 as it may or may not have allegedly 22 done vis-a-vis one or more of the defendants in Drury. This tenuous theory was 23 rejected by the Magistrate Judge, and should be rejected again here. 24 As noted, the Drury case involved unrelated parties litigating 25 unrelated claims regarding unrelated copyrighted works, and has absolutely no 2fi bearing here . Indeed, this request is so far of eld from the facts, parties and issues 27 in this case that it can only be described as a fishing expedition . This case is not 2$ about "what knowledge Google has about [the] AdSense and Adwords websites" -^000GLE INC.'S OPPOSITION TO PERFECT 10, INC.'S MOTION FOR REVIEW AND RECON5IDERATION 1 ^^ that were at issue in the Drury case, as Perfect 10 claims. This case is about 2 ^^ whether Google infringed Perfect 10's alleged copyrights. The parties have more 3 than enough issues to litigate here without holding a series of mini-trials regarding 4 ^^ other disputes not presently before the Court. Because it would have been clear 5 error to order the production of such irrelevant materials , see McCormick v. City of 6 Lawrence, Kan., 2007 WL 38400, at *3 (D. Kan. Jan. 5, 2007}, the Magistrate 7 I^ Judge's refusal to order the production was proper.6 8 ('nnrl^^cinn 9 For the foregoing reasons, Perfect 10's motion for review of the 10 Magistrate Judge's February 22, 2008 Order regarding Request Nos. 135, 136, 137, 11 197, and (Proposed) Further Order No. 2 should be DENIED. 12 13 ^ DATED: March 26, 2008 OUINN EMANUEL URQUHART OLIVER & HEDGES,LLP 14 15 By_1s^ Michael T. Zeller ,,.,,,_ Michael T. Zeller Attorneys for Defendant Google Inc.. 16 17. 18 19 20 21 22 23 24 6 In addition, the Drury case was litigated subject to a protective order designating various materials in the case as confidential. See Herrick Decl., Exh. H 26 {Declaration of Jennifer A. Golinveaux In Support of Google Int.'s Opposition to 27 Perfect 10, Int.'s Motion to Compel Google Inc. to Produce Documents, dated October 4, 2007, at ^ 11 & Exh. D thereto). 28 25 -^GOOGLE INC.'S OPPOSITION TO PERFECT IQ, INC.'S MOTION FOR REVIEW AND RECONSIDERATION
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