Perfect 10 Inc v. Google Inc et al

Filing 613

EVIDENTIARY OBJECTIONS in support re: 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 Jeffrey N. Mausner Filed in Further Opposition to Google's Motions for Summary Judgment Regarding Google's Entitlement to DMCA Safe Harbor filed by Counter Claimant Google Inc, Defendant Google Inc. (Herrick, Rachel)

Perfect 10 Inc v. Google Inc et al

Doc. 613

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)] DEFENDANT GOOGLE INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF JEFFREY N. MAUSNER FILED IN FURTHER OPPOSITION TO GOOGLE'S MOTIONS FOR SUMMARY JUDGMENT REGARDING GOOGLE'S ENTITLEMENT TO DMCA SAFE HARBOR 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 INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF JEFFREY N. MAUSNER Dockets.Justia.com

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Defendant Google Inc. ("Google") submits the following evidentiary

2 objections to the Declaration of Jeffrey Mausner in Support of Perfect 10's ("P10") 3 Evidentiary Objections and Responses to Google's Evidentiary Objections re: 4 Google's Three Motions for Summary Judgment. (Docket No. 571) ("Mausner 5 Declaration"). The Mausner Declaration is inadmissible, improper, and was filed in 6 contravention of Local Rule 7-10 and the Court's Scheduling and Case Management 7 Order. It should be disregarded and/or stricken in its entirety. 8 I. 9 10 THE MAUSNER DECLARATION IS AN IMPROPER SUR-REPLY AND SHOULD BE DISREGARDED. The Mausner Declaration, filed after Google had submitted its reply briefs in

11 support of its motions for summary judgment regarding DMCA safe harbors, 12 constitutes an improper sur-reply and should be disregarded in its entirety. 13 Local Rule 7-10 provides that "[a]bsent prior written order of the Court, the 14 opposing party shall not file a response to the reply." Additionally, Paragraph 15 III.C.5 of this Court's Scheduling and Case Management Order provides that "[t]he 16 non-moving party may not file a sur-reply unless the Court first grants leave to do 17 so." Courts routinely strike or refuse to consider documents submitted in violation 18 of these rules. See, e.g., Spalding Laboratories, Inc. v. Arizona Biological Control, 19 Inc., 2008 WL 2227501, at *1 n.2 (C.D. Cal. 2008) ("The Court strikes and does not 20 consider Spalding's 14-page `sur-opposition' to ARBICO's reply brief.") (citing 21 Local Rule 7-10); DISC Intellectual Properties LLC v. Delman, 2007 WL 4973849, 22 at *1 n.1 (C.D. Cal. 2007) (rejecting "Defendants ... attempt[] to file a Response to 23 Plaintiffs' Reply in violation of Local Rule 7-10."); see also Cruz v. Tilton, 2009 24 WL 3126518, at *1 (E.D. Cal. 2009) (striking document titled "Response in Support 25 of denying 12(b) Motion" on grounds that it "appears to be a surreply"). 26 On July 2, 2009, Google filed three motions for summary judgment regarding 27 Google's entitlement to DMCA safe harbors for its Caching feature, Blogger service 28 and Search service, respectively. See Docket Nos. 423-51. On August 9, 2009, P10
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1 submitted its opposition materials, including three separate opposition briefs, three 2 separate statements of allegedly disputed facts, and eleven separate declarations. 3 See Docket Nos. 473-84. On September 8, 2009, Google filed its reply papers. See 4 Docket Nos. 502-21. 5 Thereafter, on October 12, 2009, P10 filed the Mausner Declaration--despite 6 having never sought or obtained leave to file any additional argument or evidence in 7 sur-reply to Google's reply materials.1 For example, the Mausner Declaration 8 incorrectly suggests that Google failed to disclose certain of its declarants 9 (Paragraph 5)2 and unsuccessfully attempts to defend P10's failure to disclose its 10 own declarants (Paragraphs 2-4).3 The Mausner Declaration also improperly 11 proffers substantive arguments and evidence (which plainly could have been timely 12 submitted in P10's opposition materials, but were not) regarding (1) the alleged 13 qualifications of one of P10's declarants (Paragraph 9), and (2) what Mr. Mausner 14 refers to as a "check the box" tool (Paragraph 10).4 Further, the Mausner 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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That same day, P10 also filed an additional Declaration of Norman Zada which is similarly objectionable. See Google Inc.'s Evidentiary Objections to Decl. of Dr. Norman Zada, filed concurrently. 2 P10's accusation is incorrect. Google designated all three of the challenged declarants as persons most knowledgeable about certain topics under Rule 30(b)(6)--Ms. Poovala and Mr. Haahr by letter dated August 28, 2008 (nearly 14 months ago) and Mr. Brougher by letter dated October 26, 2006 (nearly three years ago). Mr. Mausner personally deposed each of them--Mr. Brougher on January 11, 2007, and Ms. Poovala and Mr. Haahr in November of 2008. See Mausner Decl. ¶¶ 6 & 7. Thus, Google properly disclosed these witnesses prior to submitting their declarations on summary judgment. See Moore v. Computer Associates Intern., Inc., 2009 WL 2870213, at *3-4 (D. Ariz. 2009) (denying motion to strike affidavit when moving party's affiant "was a corporate witness, designated under Federal Rule of Civil Procedure 30(b)(6), and thus Rule 26 disclosure was not required."). 3 P10 gives no explanation or justification for its supposed late "discovery" of these witnesses. 4 P10's claim that Google was ordered to establish a "Notification System" using a "check-the-box" tool is both irrelevant and incorrect. See P10's Response to (footnote continued)
GOOGLE INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF JEFFREY N. MAUSNER

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1 Declaration also attaches over 100 pages of additional documentary exhibits. This 2 entire submission constitutes an improper sur-reply filed without the required leave, 3 and should be disregarded and/or stricken in its entirety. Local Rule 7-10; Spalding 4 Labs., 2008 WL 2227501, at *1 n.2; DISC Intellectual Properties, 2007 WL 5 4973849, at *1 n.1. 6 II. 7 8 PORTIONS OF THE MAUSNER DECLARATION ARE INADMISSIBLE UNDER THE RULES OF EVIDENCE The Mausner Declaration is objectionable for the additional reason that it is

9 inadmissible in several respects. Evidence submitted to the Court on motion 10 practice must meet all requirements for admissibility of evidence at the time of trial. 11 Beyene v. Coleman Sec. Services, Inc., 854 F.2d 1179, 1181-1182 (9th Cir. 1988). 12 See also Fed. R. Evid. 101 (Rules of Evidence apply to all proceedings in the courts 13 of the United States); Fed. R. Evid. 1101 (listing exceptions to Rule 101). Such 14 evidence must be relevant to the claims and defenses of the case. Fed. R. Evid. 401; 15 403; McCormick v. City of Lawrence, Kan., 2007 WL 38400, at *3 (D. Kan. 2007). 16 Testimonial evidence must be based on the personal knowledge of the witness 17 offering the evidence. Fed. R. Evid. 602. Hearsay evidence is inadmissible unless it 18 has been defined as non-hearsay or the proponent establishes eligibility for one or 19 more exceptions under the Rules. Fed. R. Evid. 801-804. Testimony requiring 20 scientific, technical, or other specialized knowledge may be given only by an expert 21 witness with the requisite knowledge, skill, experience, training, or education. Fed. 22 R. Evid. 701, 702. The Mausner Declaration fails to meet one or more of these 23 criteria, as specified below. 24 25 Objections to Mausner Decl. (Docket No. 568) at 1-3. At the preliminary injunction 26 stage, the parties were ordered to discuss such a mechanism--which they did--but 27 that portion of the Court's ruling was later superseded by the Ninth Circuit's ruling that P10 was unlikely to overcome Google's fair use defense. 28
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PROFFERED EVIDENCE 1. Mausner Decl. at ¶¶ 2-5 & 10

GOOGLE'S OBJECTION Fed. R. Evid. 401, 402, 403, 602, 701 The statements are argumentative, irrelevant, are improper opinion testimony, and lack foundation as to the source of Mr. Mausner's knowledge regarding when and how P10 became aware of undisclosed witnesses Newton, O'Connor, McPhatter, Hoffman, Schwartz and Eden. Without this information, P10 has failed to demonstrate that its failure to disclose these witnesses was excused or justified, rendering these statements irrelevant. See Google Inc.'s Evidentiary Objections to the Declarations of Newton, O'Connor, McPhatter, Hoffman, Schwartz and Eden (Docket Nos. 509-10 & 512-15). Fed. R. Evid. 401, 402, 403, 602, 801-04 The evidence is irrelevant, lacks foundation, and constitutes inadmissible hearsay. Fed. R. Evid. 401, 402, 403, 602 The evidence is irrelevant and lacks foundation.

2.

Mausner Decl. Exh. DD

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Mausner Decl. Exh. EE

DATED: November 23, 2009

Respectfully submitted, QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP By Rachel Herrick Kassabian Attorneys for Defendant GOOGLE INC.

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