Perfect 10 Inc v. Google Inc et al

Filing 726

EVIDENTIARY OBJECTIONS in opposition re: MOTION for Sanctions Against DEFENDANT GOOGLE, INC. - NOTICE OF MOTION AND MOTION OF PLAINTIFF PERFECT 10, INC. FOR EVIDENTIARY AND OTHER SANCTIONS AGAINST DEFENDANT GOOGLE, INC. AND/OR FOR THE APPOINTMENT OF A SPECIAL MASTER #617 Google Inc.'s Evidentiary Objections to the Declaration of Mark McDevitt Submitted in Support of Perfect 10, Inc.'s Motion for Evidentiary and Other Sanctions [PUBLIC REDACTED] filed by Counter Claimant Google Inc, Defendant Google Inc. (Kassabian, Rachel)

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Perfect 10 Inc v. Google Inc et al Doc. 726 1 QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP Michael T. Zeller Bar o. 196417) michaelzeller@quxnnemanuel.com 2 Sb5 South Figueroa Street, 10th Floor 3 Los Angeles, California 90017-2543 Telephone: 213 443-3000 213 443-3100 4 Facsimile: Charles K. erhoeven.(Bar No. 170151) charlesverhoeven@quxnnemanuel. com 5 50 California Street, 22nd Floor 6 San Francisco California 94111 Rachel Herrzck Kassabian {Bar No. 191060) rachelherrick quinnemanuel.com 7 555 Twin Dolp m Drive, 5th Floor 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 05753 AHM {SHx)] GOGGLE INC.^S EVIDENTIARY OBJECTIONS TO THE . DECLARATION OF MARK MCDEVITT SUBMITTED IN SUPPORT OF PERFECT 1 Q, INC.' S MOTION FOR EVIDENTIARY AND OTHER SANCTIONS Hon. Stephen J. Hillman AND COUNTERCLAIM 20 PERFECT 10, INC., a California corporation, Plaintiff, vs. Date: January 15, 2010 Time: 10:00 a.m. Place: Courtroom 550 Discovery Cut-off: None Set Pre-trial Conference: None Set ^'rial Date: None Set PUBLIC REDACTED 13 PERFECT 10, INC., a California corporation, 14 Plaintiff, 15 vs. 16 GOGGLE INC. a corporation; and DOES 1 through 100, inclusive, 17 18 19 Defendants. 21 22 23 24 AMAZON.COM, INC., a corporation; A9.COM, INC. a corporation; and 25 DOES 1 throug^i 100, inclusive, 26 27 28 01980 ,51320!3277767. l Defendants. GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF MARK MCDEVITT ets.Justia.com Dock 1 Google Inc. hereby submits the following objections to the Declaration of 2 ^ Mark McDevitt submitted in support of Perfect 10, Inc.'s Motion for Evidentiary 3 And Other Sanctions Against Google And/Or For The Appointment Of A Special 4 Master {`.` Sanctions Motion"} (Dkt. No. 6$2). The McDevitt Declaration is 5 objectionable for several reasons, and should be disregarded in its entirety. 6 I. 7 8 9''. THE MCDEVITT DECLARATION SHOULD BE STRICKEN BECAUSE P10 FAILED TO DISCLOSE MR. MCDEVITT IN ITS RULE 26(A) DISCLOSURES OR DISCOVERY RESPONSES. The McDevi-tt Declaration should be disregarded in its entirety because P 10 10 ^ never disclosed Mr. McDevitt in its Rule 26 Initial Disclosures or its interrogatory 11 responses as a person having knowledge of facts relevant to this case. A party 12 cannot rely on evidence at summary judgment that the party failed to provide during 13 discovery. Wolk v. Green, 2008 WL 298757, *3 (N.D. Cal. Feb. 1, 2008); Guang 14 Dong Light Headgear Factory Co., Ltd, v. ACIlntern., Inc., 2008 WL 53665, * 1 (D. 15 Kan. Jan. 2, 2008}. P 10's failure to disclose Mr. McDevitt as a witness deprived 16 Google of the opportunity to depose him prior to P 10's submission of his 17 declaration. The McDevitt Declaration should be stricken in its entirety . Fed. R. 18 ^ Civ. P. 26, 33, 37; see also Guang Dong Light Headgear Factory, 2008 WL 53665, 19 * 1 (granting motion to strike affidavit because witness identity and testimony not 20 properly disclosed during discovery). 21 22 23 II. THE MCDEVITT DECLARATION IS INADMISSIBLE UNDER THE FEDERAL RULES OF EVIDENCE. Evidence submitted to the Court on motion practice must meet all 24 requirements for admissibility of evidence if offered at the time of trial. Beyene v. 25 Coleman Sec. Services, Inc., 854 F.2d 1179, 1181-82 (9th Cir. 1988}; Travelers Cas. 26 ^ Sur. Co. ofAmerica v. Telstar Const. Co., Inc., 252 F. Supp. 2d 917, 923 (D. 27 Ariz. 2003}. See also Fed. R. Evid. 101 (Rules of Evidence apply to all proceedings a 28 01980 .5132003277767.1 -i- GOOGLE'S I;VIDIsNTIARY OBIECTIONS TO THE DECLARATION OF MARK MCDEVITT 1 in the courts of the United States); Fed. R. Evid. 1101 {listing exceptions to Rule 2 101). The McDevitt Declaration does not meet these requirements. 3 Relevance . Evidence must be relevant to the claims and defenses of the case 4 to be admissible. Fed. R. Evid. 401; 403. The McDevitt Declaration is not relevant 5 to P10's Sanctions Motion because (among other things) it references only 6 purported DMCA notices related to _. However, P 10 has not served 7 discovery requests seeking Blogger DMCA Notices, nor has P 10 obtained a Court 8 order compelling them. See Google's Opposition to P10's Motion for Evidentiary 9 and Other Sanctions at 9-10 (Dkt. No. 647). 10 Personal Knowledge. Testimonial evidence must be based on the personal 11 knowledge of the witness offering the evidence. Fed. R. Evid. 602. The McDevitt 12 Declaration contains testimony regarding 13 14 but fails to establish that Mr. McDevitt has drafted, 15 reviewed, or otherwise has personal knowledge with respect to each of them. 16 17 ^ DATED: January 13, 2010 18 19 20 21'^ 22 23 24 2S 26 27 28 4 1984.51324f3277767.1 QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP By cj ^ c-^,.,,{ ^,^,^.ti,s4^Z. ^Cl.^r^,^^^. Rachel Herrick Kassabian r ^ , Attorneys for Defendant GOOGLE 1NC. GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF MARK MCDEVITT

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