Perfect 10 Inc v. Google Inc et al

Filing 514

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 David O'Connor 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 DAVID O'CONNOR 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

GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF DAVID O'CONNOR Dockets.Justia.com

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Google hereby submits the following objections to the Declaration of David

2 O'Connor, 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 O'Connor Declaration is objectionable for several 5 reasons, and should be disregarded in its entirety. 6 I. 7 8 9 THE O'CONNOR DECLARATION SHOULD BE STRICKEN BECAUSE P10 FAILED TO DISCLOSE MR. O'CONNOR IN ITS RULE 26(A) DISCLOSURES. The O'Connor 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 O'Connor 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. O'Connor 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 O'Connor 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) -1GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF DAVID O'CONNOR

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1 DMCA, ¶ 20), which facts Google would have established had it had the 2 opportunity to depose Mr. O'Connor. The O'Connor Declaration should be stricken 3 in 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. 9 O'CONNOR WAS NOT DISCLOSED AS AN EXPERT AND DOES Moreover, just as P10 failed to disclose O'Connor 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 O'Connor as a potential expert witness. Instead, P10 has sprung O'Connor's 12 declaration upon Google, without first allowing Google a fair opportunity to depose 13 O'Connor. For the reasons discussed, supra, O'Connor's late-in-the-game 14 declaration should be stricken in its entirety. In addition, at no point does O'Connor 15 tie his qualifications and purported expertise, which involve working on electrical 16 systems and doing work for the United States law enforcement, to Google's search 17 engine or services. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 591 18 (1993) ("[requirement of fit] goes primarily to relevance," and an expert's testimony 19 must "aid the jury in resolving a factual dispute."); see also Kumho Tire Co. v. 20 Carmichael, 526 U.S. 137, 147-48 (1999) (expert must have specialized 21 knowledge). As O'Connor appears to lack the necessary qualifications to testify as 22 to Google's search engine or services, again, his testimony should be stricken. 23 III. 24 25 26 27 facts." Interrogatory No. 12. P10 did not list Mr. O'Connor in its May 26, 2008 response, nor in its May 29, 2009 updated response. 28 01980.51320/3060653.2 -201980.51320/3059107.1
GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF DAVID O'CONNOR

THE O'CONNOR 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 O'Connor­it 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 O'CONNOR DECLARATION ARE INADMISSIBLE UNDER THE FEDERAL RULES OF EVIDENCE. Even were the Court to consider the O'Connor 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 O'Connor Declaration fails to meet one or 27 more of these criteria, as set forth below. 28
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-3GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF DAVID O'CONNOR

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Proffered Evidence 1. O'Connor Decl., at ¶ 3 ("In my 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).")

Google's Objection Fed. R. Evid. 401, 402, 403, 602, 701, The statements are irrelevant, argumentative, speculative, lack foundation, constitute improper legal opinion, and constitute improper opinion testimony. Mr. O'Connor 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).

opinion, I have sufficient expertise in 702

2.

O'Connor 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, constitute improper legal opinion, and are improper opinion testimony. Mr. O'Connor has never been disclosed by P10 as an expert in this case, nor does he appear to have -4-

GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF DAVID O'CONNOR

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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). 3. O'Connor Decl., at ¶ 5 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. O'Connor 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). 4. O'Connor Decl., at ¶ 6 ("The URLs on the left side of page 11 of Exhibit 1 appear to be web page URLs with the starting http:// and www. -5GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF DAVID O'CONNOR

Fed. R. Evid. 401, 402, 403, 602, 701, 702 The statements are irrelevant, argumentative, mischaracterize the

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removed. If that is the case, Google can use those URLs (by either putting them into Google's search box, or by searching its index for URLs that contain 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.")

document, speculative, lack foundation, are not within the witness's personal knowledge, and are improper opinion testimony. Mr. O'Connor 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).

5.

O'Connor Decl., at ¶ 6 ("Google can do this without any of the other information shown in the middle and right hand columns of page 11.")

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. O'Connor 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 -6-

GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF DAVID O'CONNOR

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(1999). 6. O'Connor Decl., at ¶ 6 ("I know this not only because of my knowledge regarding how search engines operate, but also because I am able to do that myself by removing the starting http:// and or www. from a URL I obtained from Google's Web Search results, and then putting it into Google's Web Search box.") 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. O'Connor 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). 7. O'Connor Decl., Exh. 1 Fed. R. Evid. 401, 403, 602, 901 The evidence is irrelevant and is not properly authenticated. QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP By Michael Zeller Rachel Herrick Kassabian Attorneys for Defendant GOOGLE INC. -7GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF DAVID O'CONNOR