Perfect 10 Inc v. Google Inc et al

Filing 553

RESPONSE IN SUPPORT of MOTION to Compel Perfect 10, Inc. to Produce Documents, Comply with the Protective Order, and Affix Document Control Numbers to its Document Productions #407 Google Inc.'s Response to Perfect 10, Inc.'s Objections to Evidence re: Second Supplemental Declaration of Rachel Herrick Kassabian in Support of Google's Motion to Compel Perfect 10 to Affix Document Control Numbers to its Document Production filed by Counter Claimant Google Inc, Defendant Google Inc. (Herrick, Rachel)

Perfect 10 Inc v. Google Inc et al

Doc. 553

1 QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP Michael T. Zeller (Bar No. 196417) [e-mail] 2 865 South Figueroa Street, 10th Floor 3 Los Angeles, California 90017-2543 Telephone: [phone] Facsimile: [phone] Charles K. Verhoeven (Bar No. 170151) [e-mail] 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 RESPONSE TO PERFECT 10, INC.'S OBJECTIONS TO EVIDENCE RE: SECOND SUPPLEMENTAL DECLARATION OF RACHEL HERRICK KASSABIAN IN SUPPORT OF GOOGLE'S MOTION TO COMPEL PERFECT 10 TO AFFIX DOCUMENT CONTROL NUMBERS TO ITS DOCUMENT PRODUCTION Hon. Stephen J. Hillman Date: None [Currently under submission] Time: None Crtrm.: 550 Discovery Cutoff: None Set Pretrial Conference Date: 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 Defendants.

GOOGLE'S RESPONSE TO PERFECT 10'S OBJECTIONS TO EVIDENCE RE: SECOND SUPPLEMENTAL KASSABIAN DECLARATION
Dockets.Justia.com

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Plaintiff Perfect 10, Inc. ("Perfect 10") has filed purported "Objections to

2 Evidence" to the Second Supplemental Declaration of Rachel Herrick Kassabian in 3 Support of Google's Motion to Compel Perfect 10 to Affix Document Control 4 Numbers to its Document Production (the "Declaration"). These "objections" are 5 wholly without merit and should be overruled in their entirety. 6 7 1. Perfect 10's Objections To Paragraph 2 and Exhibit 1 Lack Merit. At the September 22, 2009 hearing on multiple discovery matters, the Court

8 requested that Google attempt to use the Adobe Acrobat program to affix Bates 9 numbers to a sample portion of Perfect 10's document production, and submit that 10 sample for Perfect 10's and the Court's inspection. Google did exactly that, lodging 11 a copy of the disk with the Court as Exhibit 1 to the Declaration (authenticated by 12 Paragraph 2 of the Declaration), and serving a copy on Perfect 10 and the Amazon 13 Defendants. 14 Perfect 10 now makes a series of objections to Paragraph 2 and Exhibit 1 of 15 the Declaration, including objections based on Federal Rules of Evidence 602 16 (personal knowledge), 901 (authentication), 801-04 (hearsay), and 701-02 (opinion 17 testimony).1 None of these objections has merit. 18 Rule 602. Perfect 10's Rule 602 (personal knowledge) objection fails 19 because the declarant, Ms. Kassabian, explicitly declared to her "personal and 20 firsthand knowledge" (Declaration ¶ 1) that the Exhibit is a true and correct copy of 21 a disk containing a particular production by Perfect 10, on which Adobe Acrobat 22 Professional had been used to affix Bates-numbers. 23 25 26 28 Remarkably, Perfect 10 made these objections before it had even examined 27 Exhibit 1.
GOOGLE'S RESPONSE TO PERFECT 10'S OBJECTIONS TO EVIDENCE RE: SECOND SUPPLEMENTAL KASSABIAN DECLARATION
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Rule 901. Perfect 10's Rule 901 (authentication) objection fails because the

24 authentication requirement is "satisfied by evidence sufficient to support a finding

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1 that the matter in question is what its proponent claims." Ms. Kassabian declared to 2 her personal knowledge that the Exhibit is a true and correct copy of a Perfect 10 3 document production that was Bates-stamped with Adobe Acrobat Professional (i.e., 4 precisely what the proponent claims it is). 5 Rules 801-04. Perfect 10's general "hearsay" objection borders on the 6 absurd. The witness simply declared that the Exhibit is the disk the Court requested, 7 so there is no out-of-court statement offered on the merits here. Moreover, even if 8 any portion of paragraph 2 was hearsay, Perfect 10 cites no authority for the 9 proposition that this Court cannot consider such statements of counsel in ruling on a 10 motion to compel. 11 Rules 701 and 702. Lastly, Perfect 10's argument that creating this disk 12 "may" somehow require expert testimony it meritless as well. Disk media are one 13 of the most basic pieces of office equipment in use today and are routinely filed by 14 litigants. There is no need for expert testimony to substantiate the simple process of 15 saving files to a disk (nor has Perfect 10 ever supported its repeated filings of disk 16 and hard drive media with "expert" testimony). 17 18 2. Perfect 10's Objections to Exhibit 2 Lack Merit. Perfect 10's objections to Exhibit 2 of the Declaration fail as well. Exhibit 2

19 is a transcript of a portion of a television program featuring Norman Zada and his 20 company Perfect 10, which was broadcast on a national television network and is 21 available for viewing on tvland.com. Perfect 10 makes a bevy of unexplained 22 objections to that transcript, including that the statements are "irrelevant," 23 "hearsay," "not statements of Dr. Zada," "not even close to true," "lack foundation 24 and personal knowledge," "prejudicial," "confusing," and "a waste of time." These 25 objections are improper and facially incorrect. The transcript and video clip of the 26 show (on which Perfect 10 officer Norman Zada voluntarily appeared, and was 27 profiled as an extremely wealthy person) feature statements made by and about Zada 28
GOOGLE'S RESPONSE TO PERFECT 10'S OBJECTIONS TO EVIDENCE RE: SECOND SUPPLEMENTAL KASSABIAN DECLARATION

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1 to a national audience. Those statements concern Zada's and Perfect 10's finances 2 and assets, subjects that are relevant to Perfect 10's "poverty" defense to the Bates 3 stamping motion. There is no tenable hearsay objection because the statements are 4 party admissions, and therefore not hearsay at all. Fed. R. Evid. 801(d). There is no 5 issue with "foundation" or "personal knowledge" because the television program 6 and the transcript thereof speak for themselves.2 7 9 10 DATED: October 5, 2009 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Along with its Objections to Evidence, Perfect 10 also filed a "Declaration Of Norman Zada In Reply To Google's Supplemental Memorandum In Support Of Its Motion To Compel Perfect 10, Inc. To Affix Control Numbers To Its Document Production." In that Declaration, Zada appears to confess that the statements and representations Zada made on the "How'd You Get So Rich" television program regarding his vast wealth were untrue. See Zada Declaration ¶ 2 (Docket No. 549). Setting aside the dubious reliability of a declaration submitted for the purpose of confirming the falsity of prior statements made by that declarant, nowhere in the Zada Declaration does Zada offer any evidence correcting the financial information Zada disclosed on the program.
GOOGLE'S RESPONSE TO PERFECT 10'S OBJECTIONS TO EVIDENCE RE: SECOND SUPPLEMENTAL KASSABIAN DECLARATION
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For the foregoing reasons, Google respectfully requests that the Court

8 overrule Perfect 10's Objections to Evidence. QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP By

Rachel Herrick Kassabian Attorneys for Defendant GOOGLE INC.

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