Perfect 10 Inc v. Google Inc et al

Filing 513

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 C.J. Newton 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 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 C.J. NEWTON 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
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Defendants.

GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF C.J. NEWTON

Dockets.Justia.com

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Google hereby submits the following objections to the Declaration of C.J.

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

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1 DMCA, ¶ 19), which facts Google would have established had it had the 2 opportunity to depose Mr. Newton. The Newton Declaration should be stricken in 3 its entirety. Fed. R. Civ. P. 26, 33, 37; see also Guang Dong Light Headgear 4 Factory 2008 WL 53665, *1 (D. Kan. 2008) (granting motion to strike summary 5 judgment affidavit because witness identity and testimony not properly disclosed 6 during discovery). 7 II. 8 9 THE NEWTON 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 Newton­it 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 NEWTON DECLARATION ARE INADMISSIBLE UNDER THE FEDERAL RULES OF EVIDENCE. Even were the Court to consider the Newton 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 Mr. Newton in its May 26, 2008 (footnote continued) 28
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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 Newton Declaration fails to meet one or more of these 8 criteria, as set forth below. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Proffered Evidence 1. Newton Decl., at ¶¶ 2, 3

Google's Objection Fed. R. Evid. 401, 402, 403, 602, 701, 702, Fed. R. Civ. P. 26 The statements are irrelevant, argumentative, constitute improper legal opinion, speculative, lack foundation, and constitute improper opinion testimony.

2.

Newton Decl., at ¶ 4 ("For example, one of the last notices I sent to Google, before giving up is attached as Exhibit 2. As of today, Google still has not removed or disabled access to the link set forth in that notice. In fact, the first search result Google provides in response to the

Fed. R. Evid. 401, 402, 403, 602, 701, 702 The statements are irrelevant, argumentative, constitute improper legal opinion, speculative, lack foundation, and constitute improper opinion testimony.

response, nor in its May 29, 2009 updated response. -3-

GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF C.J. NEWTON

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noted search term is the very same infringing result from a search conducted on May 28, 2009, using the search term set forth in my September 17, 2007 notice.") 3. Newton Decl., at ¶ 5 ("Even though or remove links to the infringing articles from its search results, it sent copies of my notices to chilingeffects.org, a web site that published my notices on the Internet. My notices, which were then published, gave the location of where the infringing articles were located, so that was another way that people could find the infringing articles.") 4. 5. Newton Decl. Exh. 1 Newton Decl. Exh. 2-3 Fed. R. Evid. 401, 402, 403 The evidence is irrelevant. Fed. R. Evid. 401, 402, 403, 602, 901 The evidence is irrelevant and is not properly authenticated. Fed. R. Evid. 401, 402, 403, 602, 701, The statements are irrelevant, argumentative, constitute improper legal opinion, speculative, lack foundation, and constitute improper opinion testimony. Google did not respond to my notices 702

GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF C.J. NEWTON

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1 DATED: September 8, 2009 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
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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 C.J. NEWTON

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