Perfect 10 Inc v. Google Inc et al

Filing 729

OBJECTION 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 Sheena Chou in Support of Perfect 10, Inc.'s Motion for Evidentiary and Other Sanctions filed by Counter Claimant Google Inc, Defendant Google Inc. (Kassabian, Rachel)

Download PDF
Perfect 10 Inc v. Google Inc et al Doc. 729 1 QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP Michael T. Zeller (Bar No. 196417) michaelzeller@quinnemanuel.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@quinnemanuel.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, 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 054753 AHM (SHx)] GOOGLE INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF SHEENA CHOU IN SUPPORT OF PERFECT 10, INC.'S MOTION FOR EVIDENTIARY AND OTHER SANCTIONS AND/OR FOR THE APPOINTMENT OF A SPECIAL MASTER Hon. Stephen J. Hillman Date: January 15, 2010 Time: 10:00 a.m. Place: Courtroom 550 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 Defendants. GOOGLE INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF SHEENA CHOU Dockets.Justia.com 1 Google hereby submits the following objections to the Declaration of Sheena 2 Chou, Submitted in Support of Perfect 10's Motion for Evidentiary and Other 3 Sanctions against Google and/or for the Appointment of a Special Master. The 4 Chou Declaration is objectionable for several reasons, and should be disregarded in 5 its entirety. 6 I. 7 8 SHEENA CHOU'S DECLARATION IS IRRELEVANT TO THE ISSUE OF EVIDENTIARY SANCTIONS. Ms. Chou's declaration is irrelevant to Perfect 10's Motion for Evidentiary and 9 Other Sanctions against Google and/or for the Appointment of a Special Master. 10 Ms. Chou's declaration claims to address Perfect 10's allegations regarding whether 11 Google has processed certain of Perfect 10's DMCA notices to Perfect 10's 12 satisfaction, and whether Google qualifies for DMCA safe harbor, in Perfect 10's 13 view. As the Court is aware, Google's summary judgment motions regarding its 14 qualification for DMCA safe harbor are currently under submission with Judge 15 Matz. Ms. Chou's testimony has nothing to do with Perfect 10's disputes concerning 16 the adequacy of Google's document production in response to Court Orders, and 17 should be disregarded. 18 II. 19 20 21 SHEENA CHOU WAS NEVER IDENTIFIED AS AN EXPERT, YET IMPROPERLY ATTEMPTS TO OFFER EXPERT TESTIMONY IN THIS MATTER. In her Declaration, Ms. Chou repeatedly offers improper opinion testimony, 22 including a detailed purported evaluation of Google's DMCA compliance program 23 and an explanation of her preferred methodology for identifying allegedly infringing 24 web sites. This testimony should be excluded on multiple grounds. First, Perfect 10 25 failed to disclose Chou as an expert witness in this matter. Further, at no point does 26 Chou tie her qualifications--she claims to "have a degree in Economics from UCLA 27 and [be] quite familiar with computers and the Internet"--to Google's search engine 28 or services. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 591 (1993) 01980.51320/3283788.1 GOOGLE INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF SHEENA CHOU -1- 1 ("[requirement of fit] goes primarily to relevance," and an expert's testimony must 2 "aid the jury in resolving a factual dispute."); see also Kumho Tire Co. v. 3 Carmichael, 526 U.S. 137, 147-48 (1999) (expert must have some form of 4 specialized knowledge). Quite simply, having an college degree in an unrelated 5 field and "familiarity" with computers does not make one an expert in search 6 engines, the DMCA or other Internet services. As Chou appears to lack the 7 necessary qualifications to testify regarding the subjects in her declaration, again, 8 her testimony should be stricken. 9 II. 10 11 12 THE ENTIRETY OF THE EVIDENCE OFFERED BY PERFECT 10 IN THE DECLARATION OF SHEENA CHOU IS INADMISSIBLE AND SHOULD BE DISREGARDED. The Declaration of Sheena Chou similarly should be disregarded for purposes 13 of Perfect 10's Motion for Evidentiary and Other Sanctions against Google and/or 14 for the Appointment of a Special Master, because it is inadmissible under the 15 Federal Rules of Evidence. 16 Evidence submitted to the Court on motion practice must meet all 17 requirements for admissibility of evidence if offered at the time of trial. Beyene v. 18 Coleman Sec. Services, Inc., 854 F.2d 1179, 1181-1182 (9th Cir. 1988); Travelers 19 Cas. & Sur. Co. of America v. Telstar Const. Co., Inc., 252 F. Supp. 2d 917, 923 (D. 20 Ariz. 2003). See also Fed. R. Evid. 101 (Rules of Evidence apply to all proceedings 21 in the courts of the United States); Fed. R. Evid. 1101 (listing exceptions to Rule 22 101). Such evidence must be relevant to the claims and defenses of the case. Fed. 23 R. Evid. 401; 403; McCormick v. City of Lawrence, Kan., 2007 WL 38400, at *3 (D. 24 Kan. Jan. 5, 2007). Testimonial evidence must be based on the personal knowledge 25 of the witness offering the evidence. Fed. R. Evid. 602. Testimony requiring 26 scientific, technical, or other specialized knowledge may be given only by an expert 27 witness with the requisite knowledge, skill, experience, training, or education, and 28 opinion testimony is not permitted of a lay person. Fed. R. Evid. 701, 702; see also 01980.51320/3283788.1 GOOGLE INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF SHEENA CHOU -2- 1 U.S. Aviation Underwriters, Inc. v. Yellow Freight Sys., Inc., 296 F. Supp. 2d 1322, 2 1331 (S.D. Ala. 2003) (unqualified expert opinions inadmissible at summary 3 judgment). The Chou Declaration fails to meet one or more of these criteria. 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 01980.51320/3283788.1 Proffered Evidence 1. Chou Decl. ¶ 2 Google's Objection Fed. R. Evid. 401, 402, 403, 602 The statements are irrelevant, argumentative, speculative, lack foundation, are not within the witness's personal knowledge, constitute improper legal opinion, and are improper opinion testimony. Ms. Chou's testimony has nothing to do with Perfect 10's disputes concerning the adequacy of Google's document production in response to Court Orders. 2. Chou Decl. ¶ 3 Fed. R. Evid. 401, 402, 403, 602, 701, 702, Fed. R. Civ. P. 26 The statements are irrelevant, argumentative, mischaracterize the documents, speculative, lack foundation, are not within the witness's personal knowledge, constitute improper legal opinion, and are improper opinion testimony. Ms. Chou has never been disclosed by P10 as an expert in this case, nor does she appear GOOGLE INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF SHEENA CHOU -3- 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 01980.51320/3283788.1 to have the necessary expertise to provide such expert testimony. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 591 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 14748 (1999). 3. Chou Decl. ¶ 4 Fed. R. Evid. 401, 402, 403, 602, 701, 702, Fed. R. Civ. P. 26 The statements are irrelevant, argumentative, mischaracterize the documents, speculative, lack foundation, are not within the witness's personal knowledge, constitute improper legal opinion, and are improper opinion testimony. Ms. Chou has never been disclosed by P10 as an expert in this case, nor does she appear to have the necessary expertise to provide such expert testimony. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 591 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 14748 (1999). 4. Chou Decl. ¶ 5 Fed. R. Evid. 401, 402, 403, 602, 701, 702, Fed. R. Civ. P. 26 The statements are irrelevant, argumentative, mischaracterize the GOOGLE INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF SHEENA CHOU -4- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 DATED: January 15, 2010 17 18 19 20 21 22 23 24 25 26 27 28 01980.51320/3283788.1 documents, speculative, lack foundation, are not within the witness's personal knowledge, constitute improper legal opinion, and are improper opinion testimony. Ms. Chou has never been disclosed by P10 as an expert in this case, nor does she appear to have the necessary expertise to provide such expert testimony. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 591 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 14748 (1999). QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP By Rachel Herrick Kassabian Attorneys for Defendant GOOGLE INC. GOOGLE INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF SHEENA CHOU -5-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?