Perfect 10 Inc v. Google Inc et al

Filing 512

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 Bennett McPhatter 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)

Perfect 10 Inc v. Google Inc et al

Doc. 51

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: [phone] Facsimile: [phone] 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) [e-mail] 7 555 Twin Dolphin Drive, Suite 560 8 Redwood Shores, California 94065 9 Attorneys for Defendant Google Inc. 10 11 12 14 15 vs. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CASE NO. CV 04-9484 AHM (SHx) [Consolidated with Case No. CV 054753 AHM (SHx)] GOOGLE INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF BENNETT MCPHATTER 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 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

PERFECT 10, INC., a California 13 corporation, Plaintiff,

16 GOOGLE INC., a corporation; and DOES 1 through 100, inclusive, 17 Defendants . 18 19 AND COUNTERCLAIM 20 PERFECT 10, INC., a California corporation, 21 Plaintiff, 22 vs. 23 AMAZON.COM, INC., a corporation; 24 A9.COM, INC., a corporation; and DOES 1 through 100, inclusive, 25 Defendants. 26 27 28
01980.51320/3060687.4

GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF BENNETT MCPHATTER Dockets.Justia.com

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Google hereby submits the following objections to the Declaration of Bennett

2 McPhatter, Submitted in Opposition to Google Inc.'s Motions for Summary 3 Judgment Re: DMCA Safe Harbor for its Web and Image Search, Blogger Service, 4 and Caching Feature. The McPhatter Declaration is objectionable for several 5 reasons, and should be disregarded in its entirety. 6 I. 7 8 9 THE MCPHATTER DECLARATION SHOULD BE STRICKEN BECAUSE P10 FAILED TO DISCLOSE MR. MCPHATTER IN ITS RULE 26(A) DISCLOSURES. The McPhatter Declaration should be disregarded in its entirety because,

10 although this case has been pending for close to five years, P10 never disclosed Mr. 11 McPhatter in its Rule 26 Initial Disclosures or its interrogatory responses as a person 12 having 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 Mr. McPhatter as a witness deprived Google of the opportunity to 17 depose him prior to P10's submission of his self-serving declaration, which is 18 demonstrably false in several respects. For example, the McPhatter Declaration 19 mischaracterizes the facts with respect to Google's processing of his DMCA notices 20 and his 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
GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF BENNETT MCPHATTER

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)

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1 DMCA, ¶ 20), which facts Google would have established had it had the 2 opportunity to depose Mr. McPhatter. The McPhatter Declaration should be 3 stricken in its entirety. Fed. R. Civ. P. 26, 33, 37; see also Guang Dong Light 4 Headgear Factory 2008 WL 53665, *1 (D. Kan. 2008) (granting motion to strike 5 summary judgment affidavit because witness identity and testimony not properly 6 disclosed during discovery). 7 II. 9 MCPHATTER WAS NOT DISCLOSED AS AN EXPERT AND DOES Moreover, just as Perfect 10 failed to disclose McPhatter as a person having 8 NOT APPEAR TO HAVE THE NECESSARY QUALIFICATIONS. 10 knowledge of the facts relevant to the case, so too did the company fail to disclose 11 McPhatter as a potential expert witness. Instead, P10 has sprung McPhatter's 12 declaration upon Google, without first allowing Google a fair opportunity to depose 13 McPhatter. For the reasons discussed, supra, McPhatter's late-in-the-game 14 declaration should be stricken in its entirety. In addition, at no point does McPhatter 15 tie his qualifications and purported expertise, which involve doing work for federal 16 law enforcement, to Google's search engine or services. See Daubert v. Merrell 17 Dow Pharms., Inc., 509 U.S. 579, 591 (1993) ("[requirement of fit] goes primarily 18 to relevance," and an expert's testimony must "aid the jury in resolving a factual 19 dispute."); see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-48 (1999) 20 (expert must have specialized knowledge). As McPhatter appears to lack the 21 necessary qualifications to testify as to Google's search engine or services, again, his 22 testimony should be stricken. 23 III. 24 25 26 27 facts." Interrogatory No. 12. P10 did not list Mr. McPhatter in its May 26, 2008 response, nor in its May 29, 2009 updated response. 28
GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF BENNETT MCPHATTER

THE MCPHATTER DECLARATION IS A SIDESHOW AND SHOULD BE DISREGARDED AS SUCH.

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Ultimately, P10's attempt to create a "case within a case" should be rejected.

2 This suit is not about whether Google processed the DMCA notices of McPhatter­it 3 is about P10's DMCA notices. These declarations are a sideshow and should be 4 disregarded as such. Unit Drilling Co. v. Enron Oil & Gas Co., 108 F.3d 1186, 5 1193 (10th Cir. 1997) (affirming district court exclusion of evidence that threatened 6 a "trial within a trial"); Jefferson v. Vickers, Inc., 102 F.3d 960, 963 (8th Cir. 1996) 7 (same). 8 I V. 9 10 VARIOUS PORTIONS OF MCPHATTER DECLARATION ARE INADMISSIBLE UNDER THE FEDERAL RULES OF EVIDENCE. Even were the Court to consider the McPhatter Declaration, portions of it are

11 inadmissible and should be disregarded. Evidence submitted to the Court on motion 12 practice must meet all requirements for admissibility of evidence if offered at the 13 time of trial. Beyene v. Coleman Sec. Services, Inc., 854 F.2d 1179, 1181-82 (9th 14 Cir. 1988); Travelers Cas. & Sur. Co. of Am. v. Telstar Const. Co., Inc., 252 F. 15 Supp. 2d 917, 923 (D. Ariz. 2003). See also Fed. R. Evid. 101 (Rules of Evidence 16 apply to all proceedings in the courts of the United States); Fed. R. Evid. 1101 17 (listing exceptions to Rule 101). Such evidence must be relevant to the claims and 18 defenses of the case. Fed. R. Evid. 401; 403; McCormick v. City of Lawrence, Kan., 19 2007 WL 38400, at *3 (D. Kan. Jan. 5, 2007). Testimonial evidence must be based 20 on the personal knowledge of the witness offering the evidence. Fed. R. Evid. 602. 21 Testimony requiring scientific, technical, or other specialized knowledge may be 22 given only by an expert witness with the requisite knowledge, skill, experience, 23 training, or education, and opinion testimony is not permitted of a lay person. Fed. 24 R. Evid. 701, 702; see also U.S. Aviation Underwriters, Inc. v. Yellow Freight Sys., 25 Inc., 296 F. Supp. 2d 1322, 1331 (S.D. Ala. 2003) (unqualified expert opinions 26 inadmissible at summary judgment). The McPhatter Declaration fails to meet one 27 or more of these criteria, as set forth below. 28
GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF BENNETT MCPHATTER

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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 2. 1.

Proffered Evidence McPhatter Decl., at ¶ 3 ("I have sufficient expertise in computer science and the Internet to determine whether the various portions of notices attached as Exhibit 1 would provide a search engine such as Google with enough information to locate the infringing image(s) or link(s).")

Objection Fed. R. Evid. 401, 402, 403, 602, 701, 702 The statement is irrelevant, argumentative, speculative, lacks foundation, is not within the witness's personal knowledge, constitutes improper legal opinion, and is improper opinion testimony. Mr. McPhatter has never been disclosed by P10 as an expert in this case, nor does he appear to have the necessary expertise to provide such expert testimony. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 591 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 14748 (1999).

McPhatter Decl., at ¶ 4

Fed. R. Evid. 401, 402, 403, 602, 701, 702 The statements are irrelevant, argumentative, mischaracterize the document, speculative, lack foundation, are not within the witness's personal knowledge, and are improper opinion testimony. Mr. McPhatter has never been disclosed by P10 as an expert in this case, nor does he appear to have

GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF BENNETT MCPHATTER

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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 4. 3. McPhatter Decl., at ¶ 5

the necessary expertise to provide such expert testimony. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 591 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-48 (1999). Fed. R. Evid. 401, 402, 403, 602, 701, 702 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. Mr. McPhatter has never been disclosed by P10 as an expert in this case, nor does he appear to have the necessary expertise to provide such expert testimony. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 591 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-48 (1999). McPhatter Decl., at ¶ 6 ("The URLs Fed. R. Evid. 401, 402, 403, 602, 701, on the left side of page 11 of Exhibit 1 appear to be Web Page URLs with the starting http:// and www. 702 The statement is irrelevant, argumentative, mischaracterizes the

GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF BENNETT MCPHATTER

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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 5.

removed. If that is the case, Google can use those URLs, to locate the associated web pages. It can then prevent either its Image Search or its Web Search results from directly linking to those web pages. Google can do this without any of the other information shown in the middle and right hand columns of page 11.")

document, is unduly prejudicial, speculative, lacks foundation, is not within the witness's personal knowledge, and is improper opinion testimony. Mr. McPhatter has never been disclosed by P10 as an expert in this case, nor does he appear to have the necessary expertise to provide such expert testimony. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 591 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-48 (1999).

McPhatter Decl. Exh. 1

Fed. R. Evid. 401, 402, 403, 602, 901 The evidence is irrelevant and is not properly authenticated,

DATED: September 8, 2009

QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP By Michael Zeller Rachel Herrick Kassabian Attorneys for Defendant GOOGLE INC.

GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF BENNETT MCPHATTER

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