Perfect 10 Inc v. Google Inc et al

Filing 509

EVIDENTIARY OBJECTIONS in support re: MOTION for Partial Summary Judgment as to Defendant Google Inc.'s Entitlement to Safe Harbor Under 17 U.S.C. 512(b) For Its Caching Feature [Public Redacted] MOTION for Partial Summary Judgment as to Defendant Google Inc.'s Entitlement to Safe Harbor Under 17 U.S.C. 512(b) For Its Caching Feature [Public Redacted] #426 , MOTION for Partial Summary Judgment as to Defendant Google Inc.'s Entitlement to Safe Harbor Under 17 U.S.C. 512(c) For Its Blogger Service [Public Redacted] MOTION for Partial Summary Judgment as to Defendant Google Inc.'s Entitlement to Safe Harbor Under 17 U.S.C. 512(c) For Its Blogger Service [Public Redacted] #427 , MOTION for Partial Summary Judgment as to Defendant Google Inc.'s Entitlement to Safe Harbor Under 17 U.S.C. 512(d) For Web And Image Search [Public Redacted] MOTION for Partial Summary Judgment as to Defendant Google Inc.'s Entitlement to Safe Harbor Under 17 U.S.C. 512(d) For Web And Image Search [Public Redacted] #428 Google Inc.'s Evidentiary Objections to the Declaration of Margaret Jane Eden in Opposition to Google's Three Motions for Summary Judgment re: DMCA Safe Harbor for its Web and Image Search, Blogger Service, and Caching Feature filed by Counter Claimant Google Inc, Defendant Google Inc. (Herrick, Rachel)

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Perfect 10 Inc v. Google Inc et al Doc. 50 1 QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP Michael T. Zeller (Bar No. 196417) michaelzeller@quinne manuel.com 2 865 South Figueroa Street, 10th Floor 3 Los Angeles, California 90017-2543 Telephone: (213) 443-3000 4 Facsimile: (213) 443-3100 Charles K. Verhoeven (Bar No. 170151) charlesverhoeven@quinne manuel.com 5 50 California Street, 22nd Floor 6 San Francisco, California 94111 Rachel Herrick Kassabian (Bar No. 191060) rachelherrick@quinnemanuel.com 7 555 Twin Dolphin Drive, Suite 560 8 Redwood Shores, California 94065 9 Attorneys for Defendant Google Inc. 10 11 12 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CASE NO. CV 04-9484 AHM (SHx) [Consolidated with Case No. CV 05-4753 AHM (SHx)] GOOGLE INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF MARGARET JANE EDEN IN OPPOSITION TO GOOGLE'S THREE MOTIONS FOR SUMMARY JUDGMENT RE DMCA SAFE HARBOR FOR ITS WEB AND IMAGE SEARCH, BLOGGER SERVICE, AND CACHING FEATURE (DOCKET NOS. 428, 427, AND 426) Hon. A. Howard Matz Date: None Set (taken under submission) Time: None Set Place: Courtroom 14 Discovery Cut-off: None Set Pre-trial Conference: None Set Trial Date: None Set 13 PERFECT 10, INC., a California corporation, 14 Plaintiff, 15 vs. 16 GOOGLE INC., a corporation; and 17 DOES 1 through 100, inclusive, 18 19 20 22 23 vs. Defendants. AND COUNTERCLAIM PERFECT 10, INC., a California 21 corporation, Plaintiff, 24 AMAZON.COM, INC., a corporation; A9.COM, INC., a corporation; and 25 DOES 1 through 100, inclusive, 26 27 28 01980.51320/3087387.1 Defendants. GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF MARGARET JANE EDEN Dockets.Justia.com 1 Google hereby submits the following objections to the Declaration of 2 Margaret Jane Eden, Submitted in Opposition to Google Inc.'s Motions for 3 Summary Judgment Re: DMCA Safe Harbor for its Web and Image Search, Blogger 4 Service, and Caching Feature. The Eden Declaration is objectionable for several 5 reasons, and should be disregarded in its entirety. 6 I. 7 8 9 THE EDEN DECLARATION SHOULD BE STRICKEN BECAUSE P10 FAILED TO DISCLOSE MS. EDEN IN ITS RULE 26(A) DISCLOSURES OR DISCOVERY RESPONSES. The Eden Declaration should be disregarded in its entirety because, although 10 this case has been pending for close to five years, P10 never disclosed Ms. Eden in 11 its Rule 26 Initial Disclosures or its interrogatory responses as a person having 12 knowledge of facts relevant to this case. A party cannot rely on evidence at 13 summary judgment that the party failed to provide during discovery.1 Wolk v. 14 Green, 2008 WL 298757, *3 (N.D. Cal. 2008); Guang Dong Light Headgear 15 Factory Co., Ltd. v. ACIIntern., Inc., 2008 WL 53665, *1 (D. Kan. 2008). P10's 16 failure to disclose Ms. Eden as a witness deprived Google of the opportunity to 17 depose her prior to P10's submission of her self-serving declaration, which is 18 demonstrably false in several respects. For example, the Eden Declaration 19 mischaracterizes the facts with respect to Google's processing of her DMCA notices 20 and her responses thereto (see Rebuttal Declaration of Shantal Poovala in Support of 21 Google's Motions for Summary Judgment Re Entitlement to Safe Harbor Under the 22 23 24 25 26 27 28 01980.51320/3087387.1 On April 10, 2008, Google propounded an interrogatory asking P10 to "State all facts which support YOUR contention, if YOU so contend, that GOOGLE has not adopted and reasonably implemented a policy for termination in the appropriate circumstances of subscribers and account holders who are repeat infringers, as described in 17 U.S.C. § 512(i)(I)(A), and IDENTIFY all PERSONS with knowledge of such facts and all DOCUMENTS that REFER OR RELATE TO such (footnote continued) 1 GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF MARGARET JANE EDEN -1- 1 DMCA, ¶ 21), which facts Google would have established had it had the 2 opportunity to depose Ms. Eden. The Eden Declaration should be stricken in its 3 entirety. Fed. R. Civ. P. 26, 33, 37; see also Guang Dong Light Headgear Factory 4 2008 WL 53665, *1 (D. Kan. 2008) (granting motion to strike summary judgment 5 affidavit because witness identity and testimony not properly disclosed during 6 discovery). 7 II. 8 9 THE EDEN DECLARATION IS A SIDESHOW AND SHOULD BE DISREGARDED AS SUCH. Ultimately, P10's attempt to create a "case within a case" should be rejected. 10 This suit is not about whether Google processed the DMCA notices of Eden­it is 11 about P10's DMCA notices. These declarations are a sideshow and should be 12 disregarded as such. Unit Drilling Co. v. Enron Oil & Gas Co., 108 F.3d 1186, 13 1193 (10th Cir. 1997) (affirming district court exclusion of evidence that threatened 14 a "trial within a trial"); Jefferson v. Vickers, Inc., 102 F.3d 960, 963 (8th Cir. 1996) 15 (same). 16 III. 17 18 VARIOUS PORTIONS OF EDEN DECLARATION ARE INADMISSIBLE UNDER THE FEDERAL RULES OF EVIDENCE. Even were the Court to consider the Eden Declaration, portions of it are 19 inadmissible and should be disregarded. Evidence submitted to the Court on motion 20 practice must meet all requirements for admissibility of evidence if offered at the 21 time of trial. Beyene v. Coleman Sec. Services, Inc., 854 F.2d 1179, 1181-82 (9th 22 Cir. 1988); Travelers Cas. & Sur. Co. of America v. Telstar Const. Co., Inc., 252 F. 23 Supp. 2d 917, 923 (D. Ariz. 2003). See also Fed. R. Evid. 101 (Rules of Evidence 24 apply to all proceedings in the courts of the United States); Fed. R. Evid. 1101 25 (listing exceptions to Rule 101). Such evidence must be relevant to the claims and 26 27 facts." Interrogatory No. 12. P10 did not list Ms. Eden in its May 26, 2008 (footnote continued) 28 01980.51320/3087387.1 GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF MARGARET JANE EDEN -2- 1 defenses of the case. Fed. R. Evid. 401; 403; McCormick v. City of Lawrence, Kan., 2 2007 WL 38400, at *3 (D. Kan. Jan. 5, 2007). Testimonial evidence must be based 3 on the personal knowledge of the witness offering the evidence. Fed. R. Evid. 602. 4 Testimony requiring scientific, technical, or other specialized knowledge may be 5 given only by an expert witness with the requisite knowledge, skill, experience, 6 training, or education, and opinion testimony is not permitted of a lay person. Fed. 7 R. Evid. 701, 702. The Eden Declaration fails to meet one or more of these criteria, 8 as set forth below. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 01980.51320/3087387.1 Proffered Evidence 1. Eden Decl., at ¶ 2 ("The book and dvd production segment of our business is suffering huge damage and loss due to massive on-line infringement of our videos and books.") Google's Objection Fed. R. Evid. 401, 402, 403, 602, 701, 702 The statements are irrelevant, argumentative, speculative, lack foundation, are not within the witness's personal knowledge, constitute improper legal opinion, and are improper opinion testimony. 2. Eden Decl., at ¶ 2 ("I have found that in response to a Google search on my husband's name, Google provides its users with countless links that allow them to download infringing versions of our content, either for free or by purchase. As a Fed. R. Evid. 401, 402, 403, 602, 701, 702 The statements are irrelevant, argumentative, speculative, lack foundation, are not within the witness's personal knowledge, constitute improper legal opinion, and are response, nor in its May 29, 2009 updated response. -3- GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF MARGARET JANE EDEN 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 01980.51320/3087387.1 result, the life expectancy of our products has been cut from years to a few months at best, by widespread, almost immediate infringement.") 3. Eden Decl., at ¶ 2 ("To make up for our losses due to Internet piracy, my husband has been forced to do many additional seminars each year.") improper opinion testimony. Fed. R. Evid. 401, 402, 403, 602, 701, 702 The statement is irrelevant, argumentative, speculative, confuses the issues, lacks foundation, and is improper opinion testimony. 4. Eden Decl., at ¶ 3 ("Google's procedures and practices for responding to DMCA notices have made it essentially impossible for us to protect our property. Google seems to be an adversary rather than someone trying to help.") Fed. R. Evid. 401, 402, 403, 602, 701, 702 The statement is irrelevant, argumentative, speculative, lacks foundation, and is improper opinion testimony. Fed. R. Evid. 401, 403, 602, 701, 702, 1002 The statements are irrelevant, argumentative, mischaracterize the document, speculative, lack foundation, are not within the witness's personal knowledge, constitute improper legal opinion, and are improper opinion testimony. 5. Eden Decl. ¶¶ 4, 6, 7 6. Eden Decl., at ¶ 8 ("I simply do not Fed. R. Evid. 401, 402, 403, 602, 701, GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF MARGARET JANE EDEN -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 26 27 28 01980.51320/3087387.1 understand why Google does not create a more copyright ownerfriendly system which would make it easier to get infringing websites removed from Google's search results.") 7. Eden Decl., at ¶ 8 ("Unfortunately resources to challenge Google. My work over 14 years that I anticipated would support us through retirement. Now we are on a treadmill to create the 'next' thing that will in fact likely only support us for a few months. Not a month goes by that we don't look at each other and wonder how long we can keep it up.") 8. Eden Decl., at ¶ 8 ("If Google isn't stopped from directing traffic to websites that steal our products or either give them away or sell them below market rate, we will be forced to shut down the book and dvd segment of our business.") 702 The statements are irrelevant, argumentative, speculative, lack foundation, are not within the witness's personal knowledge, constitute improper legal opinion, and are improper opinion testimony. Fed. R. Evid. 401, 402, 403, 602, 701, The statements are irrelevant, foundation, are not within the witness's personal knowledge, are improper opinion testimony. no company our size has the time and 702 husband and I have created a body of argumentative, speculative, lack Fed. R. Evid. 401, 402, 403, 602, 701, 702 The statements are irrelevant, argumentative, speculative, lack foundation, are not within the witness's personal knowledge, constitute improper legal opinion, and are improper opinion testimony. GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF MARGARET JANE EDEN -5- 1 2 3 9. Eden Decl. Exhs. 1-3 Fed. R. Evid. 401, 402, 403, 602 The evidence is irrelevant . QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP By Michael Zeller Rachel Herrick Kassabian Attorneys for Defendant GOOGLE INC. 4 DATED: September 8, 2009 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 01980.51320/3087387.1 GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF MARGARET JANE EDEN -6-

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