Perfect 10 Inc v. Google Inc et al
Filing
519
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 Dr. Norman Zada 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 [Public Redacted] filed by Counter Claimant Google Inc, Defendant Google Inc. (Herrick, Rachel)
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Perfect 10 Inc v. Google Inc et al
Doc. 519
QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP Michael T. Zeller (Bar No. 196417) michaelzeller@quxnnemanuel.coni 865 South Figueroa Street, 10th Floor Los Angeles, California 90017-2543 Telephone: (213) 443-3000 Facsimile: (213) 443-3100 Charles K. Verhoeven (Bar No. 170151) charlesverhoeven@quinnemanuel.com 50 California Street, 22nd Floor San Francisco, California 94111
Rachel Herrick Kassabian (Bar No. 191060) rachelkassabian@qumnemanuel.com 555 Twin Dolphin Drive, Suite 560 Redwood Shores, California 94065 Attorneys for Defendant Google Inc.
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA PERFECT 10, INC., a California corporation , Plaintiff,, VS. GOOGLE INC. a corporation; and DOES 1 throug^ 100, inclusive, Defendants . AND COUNTERCLAIM
PERFECT 10, INC., a California corporation,
CASE NO. CV 04-9484 AHM (SHx) r Consolidated with Case No. CV 05AHM (SHx)] GOOGLE INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF DR. NORMAN ZADA 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 SetPre-trial Conference: None Set Trial Date: None Set [PUBLIC REDACTED]
Plaintiff,
VS.
AMAZON.COM, INC., a corporation; A9.COM, INC. a corporation; and DOES 1 through 100, inclusive, Defendants.
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GOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN .ZADA Dockets.Justia.com
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Google respectfully submits the following objections to the Declaration of
2 Norman Zada, submitted in opposition to Google's Three Motions for Summary 3 Judgment RE: DMCA Safe Harbor for its Web and Image Search, Blogger Service, and Caching Feature. The Zada Declaration is improper under Federal Rule of Civil Procedure 56(e), for its inclusion of legal argument, improper opinions, conjecture, speculation and irrelevant matters. Because large portions of the Zada Declaration are inadmissible, it should be disregarded for purposes of ruling on Google's DMCA Motions.'
A. Rather Than Declaring to Factual Matters, the Zada Declaration Includes Im p ro p er Legal Arguments, S p eculation , and Personal Opinions. The Zada Declaration is largely inadmissible and should be disregarded as
10 11
12 such. Rule 56(e) requires that "[a] supporting or opposing affidavit must be made on 13 personal knowledge, set out facts that would be admissible in evidence, and show that 14 the affiant is competent to testify on the matters stated." A party may not defeat 15 summary judgment by relying on conclusory allegations and speculation. Instead, 16 17 18 19 20 21 22 23 24 25 26 27 28
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' Evidence submitted to the Court on motion practice must meet all requirements for admissibility of evidence if offered at the time of trial. Beyene v. Coleman Sec. Services, Inc., 854 F.2d 1179, 1181-1182 (9th Cir. 1988); Travelers Cas. & Sur. Co. of Am. v. Telstar Const. Co., Inc., 252 F. Supp. 2d 917, 923 (D. Ariz. 2003). See also Fed. R. Evid. 101 (Rules of Evidence apply to all proceedings in the courts of the United States); Fed. R. Evid. 1101 (listing exceptions to Rule 101). Such evidence must be relevant to the claims and defenses of the case. Fed. R. Evid. 401; 403; McCormick v. City of Lawrence, Kan., 2007 WL 38400, at *3 (D. Kan. Jan. 5, 2007). Testimonial evidence must be based on the personal knowledge of the witness offering the evidence. Fed. R. Evid. 602. Documentary evidence must be properly authenticated. Fed. R. Evid. 901. Hearsay evidence is inadmissible unless it has been defined as non-hearsay or the proponent establishes eligibility for one or more exceptions under the Rules. Fed. R. Evid. 801-804. Testimony requiring scientific, technical, or other specialized knowledge may be given only by an expert witness with the requisite knowledge, skill, experience, training, or education, and opinion testimony is not permitted of a lay person. Fed. R. Evid. 701, 702.
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1 declarations must be based on facts known to the declarant and set forth concrete 2 particulars in order to satisfy Rule 56(e). E.g., Fujitsu Ltd. v. Fed. Express Corp., 3 247 F.3d 423, 428 (2d Cir.), cert. denied, 534 U.S. 891 (2001); Bickerstaff v. Vassar 4 College, 196 F.3d 435, 451-52 (2d Cir. 1999), cert. denied, 530 U.S. 1242 (2000). 5 Similarly, a declaration may not set forth legal argument. Silver v. Exec. Car Leasing 6 Long Term Disability Plan, 466 F.3d 727, 732 (9th Cir. 2006). 7
Little of the Zada declaration could be classified as fact. Instead, the Zada
8 Declaration largely is comprised of speculation and improper opinion testimony as to 9 how Google works, conjecture as to what Google may or may not have done in 10 response to Perfect 10's purported DMCA notices, Zada's own personal interpretation 11
of Google's discovery productions, and advice on how Zada would design his own
12 DMCA compliance program were he in Google's shoes. Much of the Zada 13 Declaration is argumentative and speculative, and at nearly 70 pages in length, it 14 effectively constitutes additional briefing from Perfect 10, rather than a proper Rule 15 56 declaration. The improper portions of the Zada Declaration should be stricken as 16 such. 17 B. 18 19
Zada's Out-of-Context Excerpting of P10 's DMCA Notices Violates the Best Evidence Rule and is Otherwise Irrelevant.
The Zada Declaration selectively excerpts certain screenshots allegedly
20 contained somewhere within one or more of P I O's DMCA Notices to Google, and 21 arguing that if those screenshots are DMCA-compliant, the entirety of the notices in
22 question must be DMCA-compliant as well. This is improper. Each of Perfect 10's 23 DMCA Notices must be evaluated as a whole, in the context in which it was 24 received-typically discs or hard drives containing thousands of pages of 25 screenshots-not by cherry-picking a handful of screenshots in isolation, as if they 26 had been delivered in that fashion. If P 10 wishes the Court to consider the contents 27 of its DMCA notices, it must- submit true and correct copies of them and direct the 28 Court to where in those notices the specified information may be found. Anything
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less than the complete notices is irrelevant, and moreover, such evidence lacks
2 foundation, is unduly prejudicial, and of course, violates the best evidence rule. 3 Dugan v. R.J. Corman R.R. Co., 344 F.3d 662, 669 (7th Cir. 2003) (relying on snippets of evidence rather than introducing evidence as a whole violates best evidence rule and rule of completeness, Fed. R. Evid. 106, as it allows party to take evidence out of its proper context).
C. The Portions of the Zada Declaration, Regarding "The Sample" Are Irrelevant and Im properly Submitted.
Zada's Declaration discusses a purported "Sample" of images, rather than addressing all of the copyright infringement claims P 10 has alleged, as Google's DMCA Motions do. See, e.g., Zada Decl. IT 1-2, Exh. 9 (describing _ as
). Because Google's
13 DMCA Motions address the entirety of P 10's copyright claims (grouped by the type 14 of DMCA notice in which it was asserted), the extensive discussions and exhibits in 15 the Zada Declaration regarding this small subset of images is irrelevant and cannot 16 defeat summary judgment, particularly as to the omitted purported claims. See 17 Dugan, 344 F.3d at 669 (labeling similar tactics a "bad practice": "Imagine the trial of 18 a breach of contract case in which the contract is not placed in evidence, but only a 19 few snippets ...."). 20 D. 21 22
Much of the Alleged Infringements Identified in the Zada Declaration Have No Bearing on Gonle' s Entitlement to Safe Harbor.
The Zada Declaration also includes lengthy asides about massive alleged
23 infringements of Perfect 10's copyrights not contained in any valid DMCA notice to 24 Google. See, e.g., Zada Decl. ¶ 34. These statistics are irrelevant. Perfect 10's 25 fixation on quantity misses the point of the instant Motions, and of DMCA safe 26 harbor itself no matter how many infringements of Perfect 10's copyrights Perfect 27 10 alleges to have occurred on the Internet, none of this has any bearing on Google's 28 qualification for safe harbor unless (1) the infringements are hosted by or linked to by
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GOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
1 Google, and (2) Google receives a DMCA-compliant notice regarding them. The 2 data Zada cites to lacks foundation, is not properly documented, is taken out of 3 context, and the potential prejudice to Google far outweighs any probity this evidence
might have. Fed. R. Evid. 403; see also Lucero v. Donovan, 354 F.2d 16, 22 n. 7 (9th Cir. 1965). Moreover, these statements appear to be based upon the incorrect assumption that pointing to large numbers of purported infringements somehow absolves Perfect 10 from its responsibilities under the DMCA. Zada's references to
8 various data regarding the number of alleged infringements also is at odds with 9 Perfect 10's repeated claims that it is incapable of identifying specific infringements 10 of each P10 image. E.g., Zada Decl. ¶¶ 8, 70 .2 II 12
E. Individual Objections
Even if this Court does not disregard the entirety of the Zada Declaration,
13 various portions are objectionable and inadmissible as specified below. 14 15 16 17 18 19 Fed. R. Evid. 401, 402, 403, 602 The statements are irrelevant, because Google does not crawl or link to content on Usenet sites or other password-protected websites.
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2 The Zada Declaration also includes various references to alleged infringements of the works of others not associated in any way with this litigation, on a variety of websites that were not the subject of a valid DMCA notice to Google. Zada Decl. ¶J 15,34-36, This is improper for at least two reasons. First, P10 does not have an ownership interest in the various songs and films it references, and lacks even standing to assert claims on the copyright owners' behalves. Silvers v, Sony Pictures Entm't, Inc., 402 F.3d 881, 886 (9th Cir. 2005) ("only owners of an exclusive right in the copyright could bring suit.") (emphasis in original). Second, these alleged infringements have no apparent connection with Google.
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Haahr Dec . ¶¶ 14-15 . They also are 2 3 4 5 6 7 speculative and lack foundation.
2.
Zada Decl., at ¶1
Fed. R. Evid. 401, 402, 403 The statements regarding "The Sample" are irrelevant. See Section C, supra. The statements also lack
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foundation (because the proffered evidence does not support that P 10 owns valid copyrights in all of the images being asserted in this action). 3. Zada Deel., at ¶ 2 Fed. R. Evid. 401, 402, 403, 602, 701 The statements regarding "The Sample" are irrelevant. See Section
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C , supra . The statements are also irrelevant because Zada's personal opinions regarding expeditiousness have no bearing on the legal
standards at issue and lack
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foundation. 4. Zada Decl ., at ¶ 2 Fed . R. Evid. 401, 402, 403, 602 The statements are argumentative, irrelevant , speculative and lack foundation.
5.
Zada Decl., at ¶ 2
Fed. R. Evid. 401, 402, 403, 602, 1002 The statements regarding "The Sample" are irrelevant . See Section C, supra. The statements regarding the cherry- picked excerpts of P 10's DMCA Notices also are irrelevant, lack foundation , and violative of the best evidence rule. See Section 13,
supra.
GOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
I 2 3 4 5 6.
Zada Deel., at ¶ 3
Fed. R. Evid. 401, 402, 403, 602, 701, 702, Fed. R. Civ. P. 26 The statements are irrelevant, speculative, lack foundation, do not appear to be based on the witness's personal knowledge, and constitute
improper opinion testimony of a lay
person. Zada has not been designated as an expert witness in this case, nor has he presented a sufficient foundation to support any claimed expertise in the referenced subjects. Nor does he tie his purported expertise or opinions to Google's search engine or services. See Daubert v. Merrell Dow Pharms, Inc., 509 U. S. 579, 591 ( 1993) ("[fit] goes primarily to relevance," in that an expert's testimony must "aid the jury in resolving a factual dispute."). 7. Zada Dec1., at ¶ 5 Fed. R. Evid. 401, 402, 403, 602, 701, 702, Fed. R. Civ. P. 26, 37(c)(1) 27 28
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The statements regarding "The
yGOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
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Sample" are irrelevant. See Section
C. supra. Further, they are vague
2 3 4 5 6 7 8 9 10 8. Zada Deel., at T!
and lack foundation, and, having failed to produce complete and unredacted financial records, P10 may not assert its alleged financial information here.
Fed. R. Evid. 401, 402, 403, 602, 701, 702, Fed. R. Civ. P. 26, 37 c 1 The statements are argumentative, irrelevant, see Section D, supra, lack foundation, do not appear to be based on the witness's personal knowledge, and constitute improper opinion testimony of a lay person
regarding (among other things) the
alleged cause of P 10's alleged losses and improper legal opinion. Zada has not been designated as an expert witness in this case, nor has he presented a sufficient foundation to support any claimed expertise in the referenced subject. Further, having failed to produce complete and 27 unredacted financial records, P10
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may not assert its alleged financial information here. 9. Zada Decl., at ¶ 5 Fed. R. Evid. 401, 402, 403, 602, 702, Fed. R. Civ. P. 26.
The statements are argumentative,
irrelevant, constitute improper legal opinion, speculative, and lack in foundation. See Section D, supra. The statements also do not appear to be based on the witness' s personal knowledge, constitute improper legal opinion, and constitute
improper opinion testimony of a lay
person regarding (among other things) P 10's alleged losses and losses allegedly suffered by nonparties in this litigation. Zada
has not been designated as an expert
witness in this case, nor has he presented a sufficient foundation to
support any claimed expertise in the
referenced subjects. 10. Zada Decl. ¶ 6 Fed. R. Evid. 401, 402, 403, 602 The statements are irrelevant, speculative, and lack foundation. See Section D, supra. 11. Zada DecI., at ¶ 8 Fed. R. Evid. 401,402, 403, 602
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GOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
The statements are argumentative , 2 3 4 5 irrelevant, constitute improper legal opinion, speculative, lack foundation, and do not appear to be based on the witness's personal knowledge. See Section D, supra,
6
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12.
Zada Decl , at ¶ 8
Fed . R. Evid. 401, 402 The statements are irrelevant and lack foundation.
13.
Zada Decl,, at ¶ 8
Fed. R. Evid. 401, 402, 4031 602,
GOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
701 2 3 4
5
The statement is argumentative, irrelevant, and mischaracterizes the documents referenced. 14. Zada Decl., at ¶ 8 1 M Fed. R. Evid. 401, 402, 403, 602, 701 The statements are argumentative, irrelevant, speculative, lack foundation, mischaracterize the documents referenced, do not appear to be based on the witness's personal knowledge, and constitute improper opinion testimony and legal opinion.
6 7
15.
Zada Decl., at ¶ 8
Fed. R. Ey_id. 401, 402 The statement and referenced portion of Exhibit 1 (regarding 1 AOL's alleged DMCA requirements) are irrelevant to Google's qualification for safe harbor.
16.
Zada Decl., at ¶ 8
Fed. R. Evid. 401, 402, 602, 1002 These statements are irrelevant, because P 10 never sent Google a
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valid DMCA notice directed to
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_
I
Google Groups (gghpt.com). These
2 3 4 5
statements also lack foundation and constitute improper legal opinion. Additionally, page 5 of Exhibit 2
6
7 and Zada's description of it are irrelevant, lack foundation, and violate the best evidence rule. See Section B, supra.
17.
Zada Decl., at ¶ 8
Fed. R. Evid. 401, 402,403, 602, 1002 The statements are irrelevant, speculative, lack foundation, mischaracterize the documents referenced, and do not appear to be
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based on the witness's personal knowledge. Additionally, Google's instructions for Blogger speak for themselves.
GOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
I 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 18. Zada Deel., at ¶ 8 Fed. R. Evid. 401, 402, 403, 602, 1002 The statements are argumentative, irrelevant, speculative, lack foundation, mischaracterize the documents referenced, constitute improper legal opinion, and do not appear to be based on the witness's personal knowledge. Additionally, Google's instructions for Blogger speak for themselves.
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GOOGLE' S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
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5
6 7
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I 2 3 4 5 6 7 19. Zada Dec1., at ¶ 8 Fed. R. Evid. 401, 402, 403, 602, 1002 The statements are irrelevant, because AOL's DMCA requirements have no bearing here.
20.
Zada Decl. , at ¶ 9
Fed. R. Evid. 401, 402, 403, 602, 1002 Page 5 of Exhibit 2
} and Zada's description of it are irrelevant, lack foundation, constitute improper legal opinion, and violate of the best evidence rule. See Section B, supra. Pages 7 and 8 of Exhibit 2 { } and Zada's description of it are irrelevant, mischaracterize the documents, and lack foundation. 28
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1 2 3 4 5 6 7
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21.
Zada Decl., at ¶ 14
Fed. R. Evid. 401, 402, 403, 602
The statements are argumentative, irrelevant, speculative, lack foundation, constitute improper legal opinion, contradict other testimony by this same witness (see Zada Dec. ¶¶ 12-13, 5 8) and do not
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appear to be based on the witness's 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 i
01980.51320/3091995.1
personal knowledge.
22.
Zada Decl., at ¶ 11
Fed. R. Evid. 401, 402, 403 The statements are irrelevant, speculative, lack foundation, and mischaracterize the documents referenced (including because Google does have a DMCA policy for AdWords).
23.
Zada Decl., at ¶ 12
Fed. R. Evid. 401, 402, 403, 602, 1002
The statements are argumentative,
irrelevant and speculative, constitute improper legal opinion, lack foundation, mischaracterize the documents referenced, and do not appear to be based on the witness's personal knowledge. The
GOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
1 2 3 4
5
statements regarding "The Sample"
are irrelevant. See Section C, supra. The statements regarding the cherry-picked excerpts ofP10's
DMCA Notices also are irrelevant,
6
7
lack foundation, and violate the best
evidence rule. See Section B, supra.
8 9 10 11 12 13 14 15
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I i
24.
Fed. R. Evid. 401, 402, 403, 602, 701,702 The statements are argumentative, irrelevant, mischaracterize the documents referenced, speculative, lack foundation, do not appear to be based on the witness's personal knowledge, and constitute improper opinion testimony of a lay witness.
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2 3 4 5 6 7
25.
Zada Decl., at ¶ 12
Fed. R. Evid. 401, 402, 403, 602 The statements are irrelevant, speculative, l are argumentative, irrelevant (Zada's personal characterization of Google's document production and DMCA logs has no bearing on the legal
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standards at issue for safe harbor), speculative, lack foundation, mischaracterize the documents (because Google provided OCR with its document productions), do not appear to be based on the witness's personal knowledge, and
constitute improper opinion
testimony. These statements also violate the best evidence rule because the documents discussed by Zada are the best evidence of their
contents.
GOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
I
2 3 4 5 6
44.
Zada Decl ., at ¶ 19
Fed. R. Evid. 401, 402, 403, 602, 701, 1002 The statements are argumentative,
irrelevant, see Section D, supra,
speculative, lack foundation, mischaracterize the documents, do 21 22 23 24 25 26 27 28
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not appear to be based on the witness's personal knowledge, constitute improper legal opinion,
and constitute improper opinion
testimony. These statements also violate the best evidence rule because Google's DMCA logs are
GOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
I 2 3 4 5 6 7
the best evidence of their contents.
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45.
Zada Decl., at ¶ 20
Fed. R. Evid. 401, 402, 403, 602 The statements are argumentative, irrelevant (because Zada's personal assessment of Google's actions has
GOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
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no bearing on the legal standards at issue), speculative, mischaracterize the documents, lack foundation, and do not appear to be based on the witness's personal knowledge. 46. Zada Dec1.¶ 21 Fed. R. Evid. 401, 402, 403, 602, 701, 1002 The statements regarding the cherry-picked excerpts of P 10's DMCA Notices also are irrelevant, lacking in foundation, and violative of the best evidence rule. See Section B, supra. 47. Zada DecI., at ¶ 22 Fed. R. Evid.40_1,_402, 403, 602, 801-04, 1002 The statements regarding the
cherry-picked excerpts of P 10's
DMCA Notices also are irrelevant, lacking in foundation, and violative of the best evidence rule. See Section B, supra.
_
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2 3 4 5 6 7 8
48.
Zada Decl.¶ 23
Fed. R._Evid. 401, 402, 403, 602, 701, 1002
The statements are argumentative,
irrelevant (Zada's subjective assessment of his actions are not relevant to Google's qualification for safe harbor), speculative, lack foundation, constitutes inadmissible hearsay, do not appear to be based on the witness's personal knowledge, constitute improper legal opinion, and constitute improper opinion testimony. The 23 24 25 26 27 28
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statements also violate the best evidence rule, in that the purported exhibits themselves are the best evidence of their contents. 49. Zada Decl. ¶ 24 Fed. _R._Evid. 401, 402, 403,_6.02,
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1
701 The statements are argumentative, irrelevant (Dr. Zada's personal views on how best to present DMCA notices have no bearing on the legal standards at issue for safe harbor), speculative, lack foundation, do not appear to be based on the witness's personal knowledge, constitute improper legal opinion, and constitute
improper opinion testimony. The
2 3 4 5 6 7 8
statements regarding the cherrypicked excerpts of P 10's DMCA Notices also are irrelevant, lacking in foundation, and violative of the best evidence rule. See Section B,
supra.
50. 20 21 22 23 24 25 26 27 28
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Zada Decl., at ¶ 25
Fed. R. Evid. 401, 402, 403, 602, 1002 The statements are argumentative, irrelevant (because attempts by Google to try to process P10's notices are not probative of whether the notices complied with the DMCA), speculative, lack foundation, mischaracterize the
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documents, and do not appear to be based on the witness's personal knowledge. These statements also violate the best evidence rule because the referenced communications are the best evidence of the contents of those
communications.
2 3 4 5
6
7 8 9 10 51. Zada Decl., at ¶ 26
Fed. R. Evid. 401, 402, 403, 602, 701 The statements are argumentative, irrelevant (because Zada's speculation as to what Google did has no bearing on the legal standards at issue for safe harbor), speculative, lack foundation, mischaracterize the documents, do not appear to be based on the witness's personal knowledge, and constitute improper opinion testimony.
52.
Zada Decl., at
26
Fed. R. Evid. 401, 402, 403, 602
The statements are argumentative,
24 25
irrelevant, speculative, lack foundation, mischaracterize the documents, and do not appear to be based on the witness's personal
26
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knowledge .
53.
Zada Decl., at ¶ 26
Fed. R._Evid. 401, 402, 403, 602,
701
The statements are irrelevant (Zada's personal opinion on how he would have handled DMCA review process has no bearing on the legal standards at issue), speculative, lack foundation, do not appear to be based on the witness's personal knowledge, and constitute improper opinion testimony. 54. Zada Decl., at ¶ 26 Fed. R. Evid. 401, 402, 403, 602, 1002 The statements are irrelevant,
because Google's pending motions
are not directed to examples of images P 10 references, but to the entirety of P 10's copyright claims. See also Section D, supra. The statements regarding "The Sample" are irrelevant. See Section C, supra. The statements regarding the cherry-picked excerpts of P10's
DMCA Notices also are irrelevant,
GOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
1 2
3
lacking in foundation , and violative of the best evidence rule. See
Section B, supra.
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55.
Zada Decl., at ¶ 26
Fed. R. Evid. 401,,, 402, 403, 602, 701 The statements are irrelevant, speculative, lack foundation (because Zada fails to establish that
he understands the requirements of a proper DMCA notice), and constitute improper opinion testimony.
56.
Zada Decl., at ¶ 26
Fed. R. _Evid. 401, 402, 403, 602, 1002 The statements are argumentative, irrelevant, see Section D, supra, speculative, mischaracterize the documents, and lack foundation. These statements also violate the best evidence rule because Exhibit
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14 is the best evidence of its
GOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
I 2 3 4 5 6 7 57. Zada Decl., at ¶ 26
contents .
Fed. R. Evid. 401, _ 402, 403, 602, 701, 1002 The statements are argumentative, irrelevant (because Zada's speculation has no bearing on the legal standards at issue for safe
-
harbor), speculative, lack foundation, mischaracterize the documents, do not appear to be based on the witness's personal knowledge, and constitute improper
opinion testimony. These
statements also violate the best evidence rule because the click data referenced by Zada is the best 21 22 23 24 25 26 27 28
01980.51320/3091995.1
evidence of that data.
58.
Zada Decl. ¶ 27
Fed. R. Evid. 401, 402, 403, 602, 701 The statements are argumentative, constitute improper legal opinion,
-41GOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
_
I 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 .5132013091995.1
and irrelevant (Zada's personal opinion as to the speed with which Google reacted has no bearing on the legal standards at issue for safe
harbor). The statements regarding
"The Sample" are irrelevant. See Section C, supra. The statements regarding the cherry-picked excerpts
of P 10's DMCA Notices also are
irrelevant, lacking in foundation, and violative of the best evidence rule. See Section B, supra. 59. Zada Deel., at ¶ 28 Fed. R. Evid. 401, 402, 403, 602 The statements are argumentative, irrelevant, see Section D, supra, speculative, lack foundation, mischaracterize the documents, constitute improper legal opinion, and do not appear to be based on the witness's personal knowledge.
-42GOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN zADA
I 2 3 4 5 6 7
60 .
Fed. R . Evid. 401 , 402, 403 . 602, 701, 1002 The statements are argumentative,
24 25 26 27 28
01980 . 5132013091995.1
irrelevant, speculative, lack foundation, mischaracterize the document, do not appear to be based on the witness's personal
-43GOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
knowledge, constitute improper
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
01980.51320/3091995,1
legal opinion, and constitute improper opinion testimony. 61. Fed. R. Evid. 401, 402, 403, 602, 701, Fed. R. Civ. P. 37(c)(1) The statements are argumentative, irrelevant (because Google does not crawl or link to content on Usenet
sites or other password-protected
websites, Haahr Dec.
11 14-15, see
also Section D, supra"), speculative,
lack foundation, do not appear to be based on the witness's personal knowledge, constitute improper legal opinion, and constitute improper opinion testimony of a lay witness. Further, having failed to produce complete and unredacted financial records, P 10 may not assert its alleged financial information here. 62. Zada Decl., at ¶ 33 Fed. R. Evid. 401, 402, 403, 602, 701 The statements are argumentative, irrelevant {Google does not crawl or link to content on Usenet sites or other password-protected websites.
GOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
I 2 3 4 5 6
7
Haahr Dec. ¶¶ 14-15 , see also Section D, supra), speculative, lack foundation , do not appear to be based on the witness ' s personal knowledge , constitute improper legal opinion, and constitute
improper opinion testimony.
8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
0l 980 . 5132013091995.1
GOOGLE' S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
1
2 3 4 63. Zada Deel., at 33 Fed. R.Evid. 401, 402, 403, 602, 701
The statements are irrelevant
s
6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
01980,51320/3091995.1
(because Zada's opinion as to whether P 10 could continue sending spreadsheet type notices has no bearing on the legal standards at issue for safe harbor), speculative, lack foundation, do not appear to be based on the witness's personal knowledge, and constitute improper opinion testimony. 64. Zada Decl., at ¶ 34 Fed. R. Evid. 401, 4022 403, 602, 741,702
The statements are argumentative, irrelevant (see Section D, supra),
unduly prejudicial (P 10 seeks to avoid its defective DMCA notices by referencing content it does not own on sites Google does not crawl or link to), speculative, lack foundation, do not appear to be based on the witness's personal knowledge, constitute improper legal opinion, and constitute
-46GOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
I 2 3 4
5
improper opinion testimony of a lay
person.
6
7
65.
Zada Decl., at ¶ 34
Fed. R. Evid. 401, 402, 403, 602 The statements are argumentative, irrelevant (see Section D, supra), speculative, lack foundation,
constitute improper legal opinion, and do not appear to be based on the witness's personal knowledge.
17 18 19 20 21 22 23 24 25 26 27 28
01980 .51320/3091995.1
-4,7GOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
I
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
0 1980. 5 [ 3201309E 995. l
66.
Zada Deel. ¶ 35
Fed. R. Evid. 401,_402,_403, 602, 702 The statements are argumentative, irrelevant ( Google does not crawl or link to content on Usenet sites or other password - protected websites,
Haahr Dec. ¶¶ 14-15, and Zada's
personal opinions regarding how Google should process DMCA
-4R-
`
GOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
I 2 3 4
5
notices have no bearing on the legal standards at issue for safe harbor), speculative, lack foundation,
constitute improper legal opinion,
do not appear to be based on the witness's personal knowledge and constitute improper opinion testimony. 67. Zada Decl., at ¶ 36 Fed. R. Evid. 401, 402, 403, 602, 701,702 The statements are argumentative, irrelevant (see Section D, supra), unduly prejudicial (because P10 seeks to sidestep its defective DMCA notices by pointing to content it does not own and that is not crawled or linked to by Google),
speculative, lack foundation, do not
6 7 8 9
appear to be based on the witness's personal knowledge, constitute
improper legal opinion, and
constitute improper opinion 23 24 25 26 27 28
01980 . 5132013091995.1
testimony of a lay witness. Zada has not been designated as an expert witness in this case, nor has be presented sufficient foundation to support any claimed expertise in the
GOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
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 . 51320/3091995,1
referenced subjects.
68.
Zada Decl. ¶ 37
Fed. R. Evid. 401, 402, 403, 602, 701
The statements are argumentative, irrelevant, speculative, lack
foundation, do not appear to be based on the witness's personal knowledge, constitute improper legal opinion, and constitute
improper opinion testimony.
69.
Zada Decl., at ¶ 38
Fed. R. Evid. 401, 402, 403, 602 The statements are argumentative, irrelevant, speculative, constitute improper legal opinion, and lack
GOOGLE'5 OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
I 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 /3091995.1
foundation. 70. Zada Decl., at ¶ 39 Fed. R. Evid. 40,,1,,, 402,,-403, 602, 701 The statements are irrelevant (because Google's refreshing of cached links has no bearing on the legal standards at issue for safe harbor if Google did not receive DMCA-compliant notices of infringement), speculative, lack foundation, mischaracterize the documents referenced, do not appear to be based on the witness's personal knowledge, constitute
improper legal opinion, and constitute improper opinion testimony.
GOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
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 . 51320/3091995.1
GOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
1 2 3 4 5 6 7 71. Zada Deel., at ¶ 40 Fed. R. Evid. 401, 402 403, 602 , 701 The statements regarding the
cherry-picked excerpts of P 10's DMCA Notices are irrelevant,
lacking in foundation, constitute
improper legal opinion, and
violative of the best evidence rule. See Section B, supra
72.
Zada Decl., at
41
Fed. R. Evid. 401, 402, 403, 602, 702 The statements are argumentative,
irrelevant (Zada's personal opinion
as to how Google should have acted has no bearing on the legal standards at issue), speculative, lack foundation, mischaracterize the documents, do not appear to be based on the witness's personal knowledge and constitute improper opinion testimony.
28
0 1 980.5132013091995.1
-53GOOGL.E'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
I 2 3 4 5 6 7 8 9
73.
Zada Deel., at ¶ 41
Fed. R. Evid. 401, 402, 403, 602, 702
The statements are argumentative,
irrelevant (Zada's personal opinion
as to how Google should have acted
has no bearing on the legal 20 21 22 23 24 25 26 27 28
0 980. 5 320!309 995.
standards at issue for safe harbor), speculative, lack foundation, do not appear to be based on the witness's personal knowledge, constitute improper legal opinion, and
constitute improper opinion
testimony.
GOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
I 2 3 4 5 6 74. Zada Decl., at ¶ 42 Fed. R. Evid. 401, 402, 403, 602, 1002 The statements regarding "The Sample" are irrelevant. See Section C, supra. The statements regarding the cherry-picked excerpts of P10's DMCA Notices also are irrelevant, lacking in foundation, and violative of the best evidence rule. See Section B, supra 75. Zada Decl., at ¶ 43 Fed. R. Evid. 401, 402, 403, 602 The statements regarding "The Sample" are irrelevant. See Section
C, supra. The statements regarding
the cherry-picked excerpts of P 10's DMCA Notices also are irrelevant, lacking in foundation, and violative of the best evidence rule. See Section B, supra 76. Zada Deei., at ¶ 44 Fed. R. Evid. 401, 402, 403, 602, 1002 The statements regarding "The Sample" are irrelevant. See Section
C, supra. The statements regarding
27 28
01980.51320/3091995.1
the cherry-picked excerpts of P 10's
-55GOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
I
DMCA Notices also are irrelevant, lacking in foundation, and violative of the best evidence rule. See Section B, supra
2 3 4 5 6 7 8 9 10 11 77. 1 Zada Decl., at ¶ 45
Fed. R. Ey_id. 401, 402, 403, 602, 1002 The statements regarding "The Sample" are irrelevant. See Section
C, supra. The statements regarding
the cherry-picked excerpts of P 10's DMCA Notices also are irrelevant, lacking in foundation, constitute
improper legal opinion, and
violative of the best evidence rule. See Section B, supra 78. Zada Decl., at ¶ 46 Fed. R. Evid. 401, 402, 403, 602, 1002 The statements regarding "The Sample" are irrelevant. See Section C, supra. The statements regarding 27 28
01980.51320/3091995.1
the cherry-picked excerpts of P 10's
GOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
1
DMCA Notices also are irrelevant, lacking in foundation , and violative
3 4 5 6 7 79. Zada Decl., at ¶ 47
of the best evidence rule. See Section B, supra Fed. R. Evid. 401, 402, 403, 602 701, 1002
The statements regarding "The
Sample" are irrelevant. See Section C, supra. The statements regarding the cherry-picked excerpts ofP10's DMCA Notices also are irrelevant, lacking in foundation, and violative of the best evidence rule. See Section B, supra 15 16 80. Zada Decl., at ¶ 48 Fed. R. Eyid._401, 402, 403, 602, 1002 The statements regarding "The Sample" are irrelevant. See Section
C, supra. The statements regarding
the cherry-picked excerpts of P 10's DMCA Notices also are irrelevant, lacking in foundation , and violative of the best evidence rule. See Section B, supra
28
01980 .51320/3091995.1
GOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
2 3 4
5
6 7
81.
Zada Deci., at ¶ 49
Fed._ R. Evid. 401, 402, 403, 602, 1002
The statements regarding "The
Sample" are irrelevant. See Section C, supra. The statements regarding
the cherry-picked excerpts of P 10's
DMCA Notices also are irrelevant, lacking in foundation, constitute improper legal opinion, and violative of the best evidence rule. See Section B, supra 82. Zada Decl., at ¶ 49 Fed. R. Evid. 401, 402, 403, 602 The statements are irrelevant (see Section D, supra), speculative, lack foundation, and do not appear to be based on the witness's personal knowledge.
27 28
01980.51320/3091995.1
GOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
I
2
3 4 5 6 7 83. Zada Dees., at ¶ 50 Fed. R. Evid. 401, 402, 403, 602 The statements are argumentative,
irrelevant, see Section D, supra,
speculative, lack foundation, and do not appear to be based on the witness's personal knowledge.
84.
Zada Decl., at
50
Fed. R. Evid. 401, 402, 403, 602 The statements are irrelevant (that an image was displayed at URLs
18
other than those identified by P 10 in its notices to Google has no bearing on the legal standards at issue for safe harbor), speculative, lack foundation, constitute improper legal opinion, and do not appear to be based on the witness's personal knowledge.
19 20 21 22 23 24 25 26 27 28
01980 . 5133013091995.1
GOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
I 2 3 4 5 6 7 8 9 10 85. Zada Deel., at ¶ 51 Fed. R. Evid. 401, 402, 403, 602, 701 The statements are argumentative,
irrelevant, speculative, lack
foundation, mischaracterize the documents, do not appear to be based on the witness's personal knowledge, and constitute improper
opinion testimony.
23 24 25 26 27 28
01980.51320/3091995,1
86.
Zada Deel., at ¶ 51
Fed. R. Evid. 401, 402, 403, 602, 702, 1002 The statements regarding "The Sample" are irrelevant. See Section C, supra. The statements regarding
GOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
I 2 3 4 5 6 7 8 9
the cherry-picked excerpts of P 10's DMCA Notices also are irrelevant, lacking in foundation, constitute improper legal opinion, and are violative of the best evidence rule. See Section B, supra
87.
Zada Deel., at ¶ 52
Fed. R. Evid. 401, 402, 403, 602
The statements are argumentative,
constitute improper legal opinion, irrelevant (Google does not crawl or 23 24 25 26 27 28
01980 ,51320!3091995.1
link to content on Usenet sites or other password-protected websites, Haahr Dec. ¶¶ 14-15, and P 10 did not provide Google of notice of infringement via Google Groups),
GOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA y
I 2 3 4
5
unduly prejudicial . The statements regarding "The Sample" are irrelevant. See Section C, supra.
6 7 8
19 20 21 22 23 24 25
26
27 28
01980 .5132013091995.1
88.
Zada Decl,, at ¶ 53
Fed. R. Evid. 401, 402, 403, 602 The statements are irrelevant
-62GOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
1
2
Vada's personal characterization of
his actions has no bearing on the
3 4 5 6 7 8 9 10 11 12 13
14
legal standards at issue), speculative, lack foundation, mischaracterize the documents, constitute improper legal opinion, and do not appear to be based on the witness's personal knowledge.
15 16 17 18 19 20 21 22 23 24 25 26 27 28
01980 .51320/3091995.1
GOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
I 2 3 4 5 6 7 8 9 10
89.
Zada Deel., at ¶ 53
Fed. R. Evid. 401, 402, 403, 602 The statements are argumentative, irrelevant (Microsoft's alleged
DMCA requirements are not
relevant to Google's qualification for safe harbor), speculative, lack foundation, constitute improper legal opinion, do not appear to be based on the witness's personal knowledge, and constitute improper opinion testimony. 23 24 25 26 27 28
01980 . 5 1 3 2013 09 1 99 5.1
_ -64GOOGLE' S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
---
2 3 4 5 6 7
90.
Zada DecL, at ¶ 53
Fed. R. Evi_d._401, 402, 403, 602 The statements are argumentative, irrelevant, see Section D, supra, speculative, lack foundation, constitute improper legal opinion, and do not appear to be based on the witness's personal knowledge.
28
01980.51320/3091995.1
-65GOOGL,E'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
_
I
2 3 4 5 6 91. Zada Decl. ¶ 54 Fed._ R. Evid. 401, 402, 403, 602, 702 The statements are argumentative, irrelevant (Dr. Zada's beliefs as to what Google does or does not need
to remove an image from Image
Search have no bearing on the legal standards at issue), speculative, lack foundation, mischaracterize the documents, do not appear to be based on the witness's personal
knowledge constitute improper legal opinion, and constitute improper opinion testimony.
92.
Zada Deel., at ¶ 55
Fed. R. Evid. 401, 402, 403, 602 The statements are argumentative, irrelevant, speculative, lack foundation, constitute improper legal opinion, and do not appear to be based on the witness's personal knowledge.
28
01980.51320/3091995.1
GOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
I 2 3 4 5 6 7 8 9 10 11 12
27 28
01980 . 51320/3091995 A
93.
Zada Decl.¶ 57
Fed. R. Evid. 401, 402, 403, 602,
11
_67_
GOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
I
7012 1002 The statements are irrelevant, speculative, lack foundation, mischaracterize the documents, do not appear to be based on the witness's personal knowledge, constitute improper legal opinion,
and are improper opinion testimony.
2 3 4 5 6 7
94.
Zada MO., at ¶ 58
Fed. R. Evid. 401, 402, 403, 602, 70I The statements are argumentative, irrelevant, speculative, lack foundation, do not appear to be based on the witness's personal knowledge, constitute improper legal opinion, and constitute
improper opinion testimony.
95.
Zada Decl., at ¶ 58
Fed. R. Evid. 401, 402, 403, 602 The statements are irrelevant (see Section D, supra),argumentative, constitute improper legal opinion, speculative, do not appear to be based on the witness's personal knowledge, and lack foundation. For instance, Zada's claim
27 28
01980 .5132013091995.1 -69-
000GLE'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
I
2 3 4 5 6 7 96. Zada Decl., at ¶ 5$
is unsupported by any evidence or facts whatsoever, nor has any such evidence been produced in discovery or identified in any P10 DMCA notice. Fed. R. Evid. 401, 402, 403, 602, 1002 The statements regarding "The Sample" are irrelevant. See Section C, supra. The statements regarding
the cherry-picked excerpts of P 10's
DMCA Notices also are irrelevant, lacking in foundation, constitute improper legal opinion, and violative of the best evidence rule.
See Section B, supra
28
01980 .5132013091995.1
GOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
I 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
0198f) ,51320/3091995.1
97.
Zada Decl, at ¶ 60
Fed. R. Evid. 401, 402, 403, 602, 702 The statements are argumentative, irrelevant. (because Zada's
interpretation of what documents
reveal has no bearing on the legal standards at issue for safe harbor), speculative, lack foundation, mischaracterize the documents, do not appear to be based on the witness's personal knowledge, constitute improper legal opinion, and constitute improper opinion
testimony.
°70GOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
I
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 . 51320/3091995.1
98.
Zada Decl., at ¶ 60
Fed. R. Evid. 401, 402, 403, 602, 702 The statements are argumentative, irrelevant (because what Zada believes has no bearing on the legal standards at issue for safe harbor), speculative, lack foundation, mischaracterize the documents, do
not appear to be based on the
witness's personal knowledge and constitute improper opinion
testimony.
99.
Zada Decl., at ¶ 61
Fed. R. Evid. 401, 402, 403, 602, 702
The statements are argumentative,
irrelevant, speculative, mischaracterize the documents referenced, lack foundation, and
GOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
I
constitute improper o p inion testimony.
2 3 4 5 6 7
100. Zada Deel., at ¶ 61
Fed. R. Evid. 401 ,, 402, 403, 602, 1002 The statements regarding "The Sample" are irrelevant. See Section C, supra. The statements regarding the cherry-picked excerpts of P10's DMCA Notices also are irrelevant, constitute improper legal opinion, lacking in foundation, and violative of the best evidence rule. See Section B, supra
27
28
01980.51320/3091995.1
-72GOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
I
2 3 4 5 6 7
101. Zada Deel., at $ 62
Fed. R. Evid. 401, 402, 403, 602 The statements are argumentative, irrelevant (Yahoo's alleged DMCA requirements are not relevant to Google's qualification for safe harbor), speculative, constitute improper legal opinion, mischaracterize the documents, and lack foundation.
27 28
01980 .51320/3091995.1
GOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
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
0l 980. 51320/3091995.1
GOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
I 2 3 4 5 6 102. Zada MO., at ¶ 64 Fed. R. Evid. 401, 402 403, 602, 702 The statements are argumentative, irrelevant (because this has no bearing on the legal standards at issue for safe harbor), speculative, lack foundation, do not appear to be based on the witness's personal knowledge, and constitute improper opinion testimony.
27 28
01980.5132013091995.1
GOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
I 2
3 4 5 6 7 8
103. Zada Decl., at ¶ 64
Fed. R. Eyid, 401, 402, 403, 602, 701 The statements are irrelevant, mischaracterize the documents, speculative, lack foundation, constitute improper legal opinion, and are improper opinion testimony.
27
28
01980 ,51320/3091995.1
GOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
I
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 . 5132013091995,1
104. Zada Decl., at ¶ 65
Fed. R. Evid. 401, 402, 403, 602 The statements are irrelevant, see Section D, supra, speculative, lack foundation, and do not appear to be based on the witness's personal knowledge.
GOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
I
2 3 4
S
6 7
105. Zada Deel., at ¶ 66
Fed. R. Evid. 401, 402, 403, 602 The statements are argumentative, irrelevant, see Section D, supra, speculative, lack foundation, and do not appear to be based on the
17 18
witness's personal knowledge.
28
01980 .51320/3091995.1
-78GOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
1 2 3 4
5
106. Zada Decl., at ¶ 68
Fed. R. Evid. 401, 402, 403, 602, 702 The statements are argumentative, irrelevant (because policies
respecting child pornography and/or
6 7 8 9 10
11 12
pharmaceutical advertisements have no bearing on the legal standards at issue for safe harbor), speculative, lack foundation, do not appear to be based on the witness's personal
knowledge, and constitute improper opinion testimony.
13
14
15 16 17
18
19 20 21 22 23 24 25
26
27 28
0198051320/3091995.1
GOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
i
I 2 3 4 5 6 7 8 107. Zada Decl., at ¶ 69 Fed. R. Evid. 401, 402, 403, 602,
702 The statements are argumentative,
irrelevant, speculative, lack foundation, and constitute improper
opinion testimony.
108. Zada Decl., at ¶ 70
Fed. R. Evid. 401, 402, 403, 602, 801-04 The statements are irrelevant, speculative, lack foundation, is inadmissible hearsay, and do not appear to be based on the witness's personal knowledge.
109. Zada Decl., at ¶ 70
Fed. R. Evid. 40,,1,402, 403, 602, 701
The statements are argumentative,
irrelevant (because Zada's personal opinions have no bearing on the legal standards at issue for safe harbor), speculative, 28
01 980.5 1 3 20/3 0 9 1 995.1
-80- _ GOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
I 2 3 4
5
mischaracterize the documents referenced, lack foundation, constitute improper legal opinion,
and constitute improper opinion testimony.
6 7 110. Zada Decl., at ¶ 70 Fed. R. Evid. 401, 402, 403, 602
The statements regarding "The
Sample" are irrelevant. See Section C, supra. The statements regarding the cherry-picked excerpts of P 10's DMCA Notices also are irrelevant, lacking in foundation, and violative of the best evidence rule. See 15 16 17 18 19 20 21 22 23 24 25 26 27 28
01980 . 5132013091995,1
Section $, supra
111. Zada Decl., at ¶ 71
Fed. R. Evid. 401, 402, 403, 602 The statements are argumentative, irrelevant (because P 10 has not alleged infringement via most of these products and did not provide Google with DMCA-compliant notice of infringement as to all of them), speculative, constitute improper legal opinion, and lack foundation.
112. Zada Decl., at ¶ 71
Fed. R. Evid. 401, 402, 403, 602,
-SlGOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
702 2 3 4
5 The statements are argumentative,
irrelevant (Zada's personal opinion as to how Google should process
notices has no bearing on the legal
6
7 8 9 10
standards at issue for safe harbor), speculative, lack foundation, do not
appear to be based on the witness's
personal knowledge and constitute
improper opinion testimony.
11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
01980 .51320/3091995.1
113. Zada Decl., at ¶ 73
Fed. R. Evid. 401, 402, 403602
The statements are argumentative,
irrelevant (because the format in which documents were produced for the purpose of litigation has no bearing on the legal standards at issue for safe harbor), speculative,
GOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
I 2 3 4 5 6 7 8 9 10 114. Zada Decl., at ¶ 73
and lack foundation. Fed. R. Evid. 401, 402, 403, 602, 701 The statements are argumentative, irrelevant (because Zada's personal analysis and opinions of Google's document production have no bearing on the legal standards at issue for safe harbor), mischaracterize the documents, speculative, lack foundation, and
constitute improper opinion testimony.
115. Zada Decl., at ¶ 73
Fed. R. Evid. 401, 402, 403, 602, 701, 1002
The statements are argumentative,
irrelevant (Zada's personal interpretation of Exhibit 55 has no bearing on the legal standards at issue for safe harbor), speculative, 23 24 25 26 27 28
01980 .5132013091995.1
mischaracterize the documents, lack foundation, and constitute improper
opinion testimony. This statement
also violates the best evidence rule because Exhibit 55 is the best
GOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
I 2 3 4 5 116. Zada Decl., at ¶ 73
evidence of the contents of that document. Fed. R. Evid. 401, 402, 403, 602, 701 The statements are irrelevant (because Zada's personal opinion and analysis of documents produced by Google has no bearing on the legal standards at issue for safe harbor), mischaractcrize the documents, speculative, lack foundation, and constitute improper opinion testimony. 117. Zada Decl ¶ 74 Fed. R. Evid. 401, 402, 403, 602
The statements are argumentative,
6
7 8
15
irrelevant, speculative, and lack foundation.
118. Zada Decl., at $ 75 Fed. R. Evid. 401, 402, 403, 602,
701 The statements are argumentative, irrelevant (because Zada's personal
opinions regarding Google's
statements have no bearing on the legal standards at issue for safe harbor), speculative, lack foundation, and constitute improper 27 28
01980 .51320/3091995.1
opinion testimony.
-84GOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
I 2 3 4 5 6 7
119. Zada Decl., at ¶ 75
Fed. R. Evid. 401, 402, 403, 602 The statements are argumentative, irrelevant, speculative, and lack foundation.
120. Zada Decl., at ¶ 75
Fed. R. Evid. 401, 402, 403, 602, 701 The statements are argumentative, irrelevant (Zada's personal opinion and analysis of testimony has no bearing on the legal standards at issue for safe harbor), mischaracterize the document, are speculative, lack foundation, and are
improper opinion testimony.
121. Zada Decl., at ¶ 75
Fed. R. Evid. 401, 402, 403, 602 The statements are argumentative, irrelevant, speculative, and lack foundation.
25 26 27 28
01980.51320/3091995,1 _ -8 . 5GOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
122. Zada Decl. Exh . 1, page 11
Fed. R. Evid. 401, 402, 403 The evidence is irrelevant, because
I 2 3 4 5 6 7 123. Zada Decl. Exh . 2
other companies' DMCA processes
have no bearing on Google's qualification for DMCA safe harbor. Fed. R. Evid. 401, 402, 403 The evidence is irrelevant,. because "Whois" ownership of Blogger websites has no bearing on Google's qualification for safe harbo, nor do the alleged features of Adobe software depicted in the screenshots n Exhibit 2. 124. Zada Decl. Exh. 4 Fed. R. Evid. 401, 402, 403 The evidence is irrelevant to the DMCA safe harbor issues before the
court.
125. Zada Decl. Exhs. 5-6
Fed. R. Evid. 4012 402, 403, 602, 1002
The evidence regarding "The
Sample" is irrelevant. See Section C, supra. The evidence regarding the cherry-picked excerpts of P 10's DMCA Notices also are irrelevant, lacking in foundation, and violative of the best evidence rule. See 25 26 27 28
01980 .5132013091995.1
Section B, supra 126. Zada Decl. Exh . 7 Fed. R. Evid. 401, 402, 403, 602 The evidence is irrelevant,
GOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
-86-
I 2 3 4 5 6 7 127. Zada Decl. Exh . 8
speculative, and lacks foundation. See Section D, supra. Fed. R. Evid. 401, 402, 403, 602 Evidence regarding the cherrypicked excerpts of P 10's DMCA Notices also are irrelevant, lacking in foundation, and violative of the best evidence rule. See Section B,
supra.
128. Zada Decl. Exh . 9
Fed. R. Evid. 401, 402, 403, 602, 901, 1002 Evidence regarding the cherrypicked excerpts of P 10's DMCA Notices also are irrelevant, lacking in foundation, and violative of the best evidence rule. See Section B, supra. This exhibit also
18 19 20 21 22 23 24 25 26 27 28
01980 . 5132013091995.1
mischaracterizes the documents referenced, lacks foundation,
constitutes improper opinion
testimony, and is not properly authenticated. 129. Zada Decl. Exh . 10 Fed. R. Evid. 401, 402, 403, 602 The evidence is unduly prejudicial
(P 10 seeks to take the entirety of its
defective notices out of context by pointing only to selected content),
-A7GOOGLE'S OBJECTIONS TO THE DECLARATION OF NORMAN ZADA
_
ir
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