In Re Sony PS3 "Other OS" Litigation

Filing 98

Declaration of Carter Ott in Support of 97 MOTION to Dismiss [Memorandum of Points and Authorities] MOTION to Dismiss [Memorandum of Points and Authorities], 96 MOTION to Strike 76 Amended Complaint [Class Allegations; Memorandum of Points and Authorities] MOTION to Strike 76 Amended Complaint [Class Allegations; Memorandum of Points and Authorities] filed bySony Computer Entertainment America Inc, Sony Computer Entertainment America LLC. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X)(Related document(s) 97 , 96 ) (Sacks, Luanne) (Filed on 9/10/2010)

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Ventura v. Sony Computer Entertainment America Inc Doc. 98 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DLA PIPER LLP (US) LUANNE SACKS, Bar No. 120811 luanne.sacks@dlapiper.com CARTER W. OTT, Bar No. 221660 carter.ott@dlapiper.com DEBORAH E. MCCRIMMON, Bar No. 229769 deborah.mccrimmon@dlapiper.com DLA PIPER LLP (US) 555 Mission Street, Suite 2400 San Francisco, CA 94105 Tel: 415.836.2500 Fax: 415.836.2501 Attorneys for Defendant SONY COMPUTER ENTERTAINMENT AMERICA LLC (erroneously sued as "Sony Computer Entertainment America Inc.") UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION In re SONY PS3 "OTHER OS" LITIGATION CASE NO. 3:10-CV-01811 RS (EMC) DECLARATION OF CARTER OTT IN SUPPORT OF DEFENDANT'S MOTIONS TO DISMISS AND STRIKE Date: Time: Judge: Courtroom: November 4, 2010 1:30 p.m. Hon. Richard Seeborg 3 WEST\222444523.1 DECL. OF CARTER OTT ISO DEF'S MOTION TO DISMISS AND STRIKE CASE NO. 3:10-CV-01811 RS (EMC) Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DLA PIPER LLP (US) I, Carter Ott, declare: 1. I am an attorney at law duly licensed to practice before the courts of the State of California, and I am an attorney with the law firm of DLA Piper LLP (US), attorneys of record for defendant Sony Computer Entertainment America LLC in the above-captioned action. I have personal knowledge of the matters set forth in this Declaration. If called as a witness, I could and would competently testify to these matters. 2. Attached hereto as Exhibit A is a true and correct copy of the Limited Hardware Warranty And Liability for the PlayStationŽ3. I obtained this document on September 9, 2010 from SCEA's website at us.playstation.com/support/warranties/ps3/. 3. Attached hereto as Exhibit B is a true and correct copy of the System Software License Agreement (Version 1.4) for the PlayStationŽ3 System. I obtained this document on September 9, 2010 from the Internet at www.scei.co.jp/ps3-eula/ps3_eula_en.html. 4. Attached hereto as Exhibit C is a true and correct copy of the System Software License Agreement for the PlayStationŽ3 System, Version 1.1. I obtained this document on May 6, 2010 from the Internet at www.scei.co.jp/ps3-eula/ps3_eula_en.html, using an Internet archive, located at web.archive.org. 5. Attached hereto as Exhibit D is a true and correct copy of the System Software License Agreement (Version 1.3) for the PlayStationŽ3 System. I obtained this document on September 9, 2010 from the Internet at http://nz.playstation.com/ps3/support/systemsoftware/detail/item303335/Update-features(ver-3-42)/. 6. Attached hereto as Exhibit E is a true and correct copy of the Terms Of Service And User Agreement for the PlayStationŽNetwork, Version 7.0. I obtained this document on September 9, 2010 from the Internet at legaldoc.dl.playstation.net/ps3eula/psn/u/u_tosua_en.html. 7. Attached hereto as Exhibit F is a true and correct copy of the PlayStationŽNetwork Terms of Service and User Agreement, Version 2.0. I obtained this document on May 6, 2010 from the Internet at at www.scei.co.jp/ps3-eula/ps3_eula_en.html, using an Internet archive, located at web.archive.org. -1WEST\222444523.1 DECL. OF CARTER OTT ISO DEF'S MOTION TO DISMISS AND STRIKE CASE NO. 3:10-CV-01811 RS (EMC) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DLA PIPER LLP (US) 8. Attached hereto as Exhibit G is a true and correct copy of the PlayStationŽNetwork: Terms of Service and User Agreement, Version 5.00. I obtained this document on September 9, 2010 from the Internet at legaldoc.dl.playstation.net/ps3eula/psn/h/h_tosua_en.html. 9. Attached hereto as Exhibit H is a true and correct copy of a document titled "Open Platform for PlayStationŽ3." I obtained this copy on July 21, 2010 from SCEA's website at www.playstation.com/ps3-openplatform/index.html. 10. Attached hereto as Exhibit I is a true and correct copy of the Complaint filed in this Court on April 30, 2010 in Baker, et al. v. Sony Computer Entertainment America, LLC, U.S. District Court, Northern District of California, Case No. CV-10-01897-RS. 11. Attached hereto as Exhibit J is a true and correct copy of the Complaint filed in this Court on May 5, 2010 in Densmore, et al. v. Sony Computer Entertainment America, Inc., U.S. District Court, Northern District of California, Case No. CV-10-1945-RS. 12. Attached hereto as Exhibit K is a true and correct copy of the Complaint filed in this Court on May 6, 2010 in Wright v. Sony Computer Entertainment America, Inc., et al., U.S. District Court, Northern District of California, Case No. CV-10-01975-RS. 13. Attached hereto as Exhibit L is a true and correct copy of the Complaint filed in this Court on May 21, 2010 in Harper, et al. v. Sony Computer Entertainment America, Inc., U.S. District Court, Northern District of California, Case No. CV-10-02197-RS. 14. Attached hereto as Exhibit M is a true and correct copy of the Complaint filed in this Court on May 21, 2010 in Huber v. Sony Computer Entertainment America, LLC, U.S. District Court, Northern District of California, Case No. CV-10-02213-RS. 15. Attached hereto as Exhibit N is a true and correct copy of the Complaint filed in this Court on June 14, 2010 in Benavides v. Sony Computer Entertainment America, Inc., U.S. District Court, Northern District of California, Case No. CV-10-02612-RS. 16. Attached hereto as Exhibit O is a true and correct copy of the Complaint filed on July 28, 2010 in Allee v. Sony Computer Entertainment America Inc., State of Wisconsin, Circuit Court, Milwaukee County, Case No. 10CV012458. -2WEST\222444523.1 DECL. OF CARTER OTT ISO DEF'S MOTION TO DISMISS AND STRIKE CASE NO. 3:10-CV-01811 RS (EMC) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DLA PIPER LLP (US) 17. Attached hereto as Exhibit P is a true and correct copy of SCEA's Notice of Removal filed on August 27, 2010 in Allee v. Sony Computer Entertainment America Inc., U.S. District Court, Eastern District of Wisconsin, Case No. CV-00737-WEC. 18. Attached hereto as Exhibit Q are true and correct copies of excerpts of postings from Internet webpages cited in Plaintiffs' Consolidated Class Action Complaint. I obtained these on September 9, 2010 from http://blog.us.playstation.com/2010/03/28/ps3-firmware-v3-21update/comment/. 19. Attached hereto as Exhibit R is a true and correct copy of a document from the PlayStationŽ Knowledge Center containing "FAQs." I obtained this document on April 28, 2010 from the Internet at playstation.custhelp.com/app/answers/print/a_id/469. 20. Attached hereto as Exhibit S is a true and correct copy of the System Software License Agreement for the PlayStationŽ3 System, Version 1.0. I obtained this document on September 10, 2010 from the Internet at www.scei.co.jp/ps3-eula/ps3_eula_en.html using an Internet archive, located at web.archive.org. 21. Attached hereto as Exhibit T is a true and correct copy of the System Software License Agreement (Version 1.2) for the PlayStationŽ3 System. I obtained this document on September 10, 2010 from the Internet at www.scei.co.jp/ps3-eula/ps3_eula_en.html using an Internet archive, located at web.archive.org. 22. Attached hereto as Exhibit U is a true and correct copy of the PlayStationŽNetwork Terms Of Service And User Agreement, Version 1.0. I obtained this document on September 10, 2010 from the Internet at www.scei.co.jp/ps3-eula/us_psn_en.html using an Internet archive, located at web.archive.org. 23. Attached hereto as Exhibit V is a true and correct copy of the PlayStationŽNetwork: Terms Of Service And User Agreement, Version 3.0. I obtained this document on September 10, 2010 from the Internet at www.scei.co.jp/ps3eula/psn/u/u_tosua_en.html using an Internet archive, located at web.archive.org. 24. Attached hereto as Exhibit W is a true and correct copy of the PlayStationŽNetwork: Terms Of Service And User Agreement, Version 4.0. I obtained this -3WEST\222444523.1 DECL. OF CARTER OTT ISO DEF'S MOTION TO DISMISS AND STRIKE CASE NO. 3:10-CV-01811 RS (EMC) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DLA PIPER LLP (US) document on September 10, 2010 from the Internet at www.scei.co.jp/ps3eula/psn/u/u_tosua_en.html. 25. Attached hereto as Exhibit X is a true and correct copy of the Terms Of Service And User Agreement for the PlayStationŽNetwork, Version 6.0. I obtained this document on September 10, 2010 from the Internet at http://us.playstation.com/support/useragreements/ termsservicesagreemnt-apr2010/index.htm. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 10th day of September, 2010, in San Francisco, California. ___/s/ Carter Ott____________________________ CARTER OTT WEST\222444523.1 DECL. OF CARTER OTT ISO DEF'S MOTION TO DISMISS AND STRIKE CASE NO. 3:10-CV-01811 RS (EMC) -4-