Perfect 10 Inc v. Google Inc et al
Filing
516
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 Melanie Poblete 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: (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 054753 AHM (SHx)] GOOGLE INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF MELANIE POBLETE 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
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
01980.51320/3059181.2
Defendants.
GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF MELANIE POBLETE Dockets.Justia.com
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Google hereby submits the following objections to the Declaration of Melanie
2 Poblete, 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 Poblete Declaration is objectionable for several reasons, and 5 should be disregarded in its entirety. 6 I. 7 8 THE POBLETE DECLARATION CONCERNS "THE SAMPLE" AND IS THUS IRRELEVANT. Poblete's Declaration discusses a purported "Sample" of images utilized in the
9 Zada Declaration. This "Sample" contains 12 images used for "illustrative 10 purposes," and fails to address all of the copyright infringement claims P10 has 11 alleged, as Google's DMCA Motions do. See, e.g., Zada Decl. ¶¶ 1-2, Exh. 9. 12 Because Google's DMCA Motions address the entirety of P10's copyright claims 13 (grouped by the type of DMCA notice in which it was asserted), the extensive 14 discussions and exhibits in the Zada Declaration regarding this small subset of 15 images is irrelevant and cannot defeat summary judgment, particularly as to the 16 omitted purported claims. See Dugan v. R.J. Corman R.R. Co., 344 F.3d 662, 669 17 (7th Cir. 2003) (relying on snippets of evidence rather than introducing evidence as 18 a whole violates the best evidence rule and rule of completeness, Fed. R. Evid. 106, 19 as it allows party to take evidence out of its proper context). 20 II. 21 22 23 PORTIONS OF THE EVIDENCE OFFERED BY PERFECT 10 IN THE DECLARATION OF MELANIE POBLETE ARE INADMISSIBLE AND SHOULD BE DISREGARDED. Portions of the Declaration of Melanie Poblete, submitted in opposition to
24 Google Inc's Motions for Summary Judgment Re: DMCA Safe Harbor for its Web 25 and Image Search, Blogger Service, and Caching Feature are inadmissible and 26 should be disregarded for purposes of the Motion. 27 Evidence submitted to the Court on motion practice must meet all 28 requirements for admissibility of evidence if offered at the time of trial. Beyene v.
GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF MELANIE POBLETE
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1 Coleman Sec. Services, Inc., 854 F.2d 1179, 1181-1182 (9th Cir. 1988); Travelers 2 Cas. & Sur. Co. of America v. Telstar Const. Co., Inc., 252 F. Supp. 2d 917, 923 (D. 3 Ariz. 2003). See also Fed. R. Evid. 101 (Rules of Evidence apply to all proceedings 4 in the courts of the United States); Fed. R. Evid. 1101 (listing exceptions to Rule 5 101). Such evidence must be relevant to the claims and defenses of the case. Fed. 6 R. Evid. 401; 403; McCormick v. City of Lawrence, Kan., 2007 WL 38400, at *3 (D. 7 Kan. Jan. 5, 2007). Testimonial evidence must be based on the personal knowledge 8 of the witness offering the evidence. Fed. R. Evid. 602. Documentary evidence 9 must be properly authenticated. Fed. R. Evid. 901. Hearsay evidence is 10 inadmissible unless it has been defined as non-hearsay or the proponent establishes 11 eligibility for one or more exceptions under the Rules. Fed. R. Evid. 801-804. 12 Testimony requiring scientific, technical, or other specialized knowledge may be 13 given only by an expert witness with the requisite knowledge, skill, experience, 14 training, or education. Fed. R. Evid. 701, 702. The Poblete Declaration fails to 15 meet one or more of these criteria, as specified below. 16 17 18 19 20 21 22 23 24 25 26 27 28
GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF MELANIE POBLETE
Proffered Evidence 1. Poblete Decl., at ¶ 2 ("I have verified that Perfect 10 has in its deposit material for copyright registrations filed with the U.S. Copyright Office, over 19,000 unique images") 2. Poblete Decl., at ¶ 2 ("In this Declaration, I will reference images contained in exhibits to the Zada Declaration that constitute Perfect
Objection Fed. R. Evid. 401, 403, 602 The statement is irrelevant, lacks foundation, and does not appear to be within the witness's personal knowledge. Fed. R. Evid. 401, 403, 602 The statement is irrelevant (see Part I, supra), lacks foundation, and is speculative.
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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 /// 3.
10's 'Sample' of twelve images. The twelve images referenced in this Declaration which constitute Perfect 10's 'Sample' are contained in deposit materials for Perfect 10 copyright registrations with the U.S. Copyright Office.") Poblete Decl., at ¶¶ 3-25 Fed. R. Evid. 401, 402, 403, 602, 1002 These portions of the Poblete Declaration all make reference to Exhibit 9 of the Zada Declaration, a/k/a "the Sample." Such references are argumentative, violate the best evidence rule (P10 seeks to take the entirety of its defective notices out of context by cherry-picking only select, individual images), irrelevant (Google's motions go to the entirety of P10's copyright claims, see Section I, supra), speculative, and lack foundation, as no explanation is provided as to how or why "the Sample" was constructed.
GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF MELANIE POBLETE
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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
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 MELANIE POBLETE
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