Perfect 10 Inc v. Google Inc et al

Filing 804

EVIDENTIARY OBJECTIONS in opposition re: MOTION for Preliminary Injunction Against Defendant Google Inc. #772 Google Inc.'s Evidentiary Objections to the Declaration of Margaret Jane Eden in Support of Perfect 10's Second Motion for a Preliminary Injunction filed by Counter Claimant Google Inc, Defendant Google Inc. (Kassabian, Rachel)

1 QUINN EMANUEL URQUHART & SULLIVAN, 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, 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) GOOGLE INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF MARGARET JANE EDEN IN SUPPORT OF PERFECT 10'S SECOND MOTION FOR A PRELIMINARY INJUNCTION AGAINST GOOGLE Hon. A. Howard Matz Date: April 5, 2010 Time: 10:00 a.m. 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 21 22 23 24 25 26 27 28
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Defendants.

GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF MARGARET JANE EDEN

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Google hereby submits the following objections to the Declaration of

2 Margaret Jane Eden ("Eden Declaration"), Submitted in Support of Perfect 10's 3 Second Motion for a Preliminary Injunction Against Google ("Second PI Motion").1 4 The Eden Declaration is objectionable for several reasons, and should be 5 disregarded or accorded little or no weight in the determination of Perfect 10's 6 Second PI Motion. 7 I. 8 9 THE EDEN DECLARATION SHOULD BE STRICKEN BECAUSE EDEN WAS NOT DISCLOSED. P10 failed to disclose Eden as a person having knowledge of the facts relevant

10 to the case. Instead, P10 has sprung Eden's declaration upon Google, without first 11 allowing Google a fair opportunity to depose Eden.2 The Eden Declaration should 12 be stricken on this basis. 13 II. 14 15 THE EDEN DECLARATION IS A SIDESHOW AND SHOULD BE DISREGARDED AS SUCH. P10's attempt to create a "case within a case" should be rejected. This suit is

16 not about whether Google processed the DMCA notices of Eden­it is about P10's 17 claims of infringement of its images and its DMCA notices to Google. The Eden 18 Declaration, along with the declarations of Dean Hoffman, C.J. Newton, and Les 19 Schwartz, are a sideshow and should be disregarded as such. Unit Drilling Co. v. 20 21 22 23 24 25 26 27 28
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The Eden Declaration is the same declaration, with the same signature date, that P10 submitted from Ms. Eden in support of its opposition to Google's DMCA Motions (Dkt No. 475), with an updated caption reflecting the title of the present motion. Google filed objections to this declaration in connection with its DMCA Motions on September 8, 2009. See Dkt No. 509. 2 Because P10 has refused to agree to Google's request that, given the numerous models and other witnesses implicated by this case, the parties be permitted to take more than ten depositions per side, Google has not been able to depose Ms. Eden since her first declaration was filed in August 2009. On July 27, 2009, Google filed (footnote continued)
GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF MARGARET JANE EDEN

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1 Enron Oil & Gas Co., 108 F.3d 1186, 1193 (10th Cir. 1997) (affirming district court 2 exclusion of evidence that threatened a "trial within a trial"); Jefferson v. Vickers, 3 Inc., 102 F.3d 960, 963 (8th Cir. 1996) (same). 4 III. 5 6 7 PORTIONS OF THE EVIDENCE OFFERED BY P10 IN THE EDEN DECLARATION DISREGARDED. The Eden Declaration should be disregarded for purposes of P10's Second PI ARE INADMISSIBLE AND SHOULD BE

8 Motion for the additional reason that it is inadmissible under the Federal Rules of 9 Evidence. 10 The Federal Rules of Evidence apply to evidence submitted to the Court on 11 motion practice. Fed. R. Evid. 101 (Rules of Evidence apply to all proceedings in 12 the courts of the United States); Fed. R. Evid. 1101 (listing exceptions to Rule 101). 13 While courts have some discretion to consider inadmissible evidence when a 14 preliminary injunction is urgently needed to prevent irreparable harm before a full 15 resolution on the merits is possible, courts routinely decline to consider, or afford 16 any weight to, such inadmissible evidence in appropriate circumstances. See 17 Beijing Tong Ren Tang (USA) Corp. v. TRT USA Corp., --- F.Supp.2d ----, 2009 18 WL 5108580, at *3 (N.D. Cal. Dec. 18, 2009) (upholding evidentiary objections and 19 denying preliminary injunction); U.S. v. Guess, 2004 WL 3314940, at *4 (S.D. Cal. 20 Dec. 15, 2004) ("conditional inferences, innuendo, and even strong suspicions do 21 not satisfy [the movant's] burden"); Kitsap Physicians Service v. Washington 22 Dental Service, 671 F.Supp. 1267, 1269 (W.D. Wa. 1987) (refusing to consider 23 affidavits "that would have been inadmissible under the Federal Rules of Evidence" 24 and denying preliminary injunction). Because P10 has had nearly six years to 25 26 27 a motion seeking leave to take additional depositions (Dkt No. 471). The Court has not yet ruled on Google's motion. 28
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GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF MARGARET JANE EDEN

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1 obtain evidence regarding its Second PI Motion, it is particularly appropriate to hold 2 P10's evidence to the usual standards of admissibility for motion practice. 3 Such evidence must be relevant to the claims and defenses of the case. Fed. Testimonial evidence must be based on the personal 4 R. Evid. 401; 403; Beijing Tong Ren Tang, 2009 WL 5108580, at *3 (striking 5 irrelevant evidence). 6 knowledge of the witness offering the evidence. Fed. R. Evid. 602. Testimony 7 requiring scientific, technical, or other specialized knowledge may be given only by 8 an expert witness with the requisite knowledge, skill, experience, training, or 9 education, and opinion testimony is not permitted of a lay person. Fed. R. Evid. 10 701, 702. The Eden Declaration fails to meet one or more of these criteria, as set 11 forth below. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Proffered Evidence 1. Eden Decl., at ¶ 2

Google's Objection Fed. R. Evid. 401, 402, 403, 602, 701, 702 The statements are irrelevant, argumentative, conclusory, speculative, lack foundation, are not within the witness's personal knowledge, and constitute improper opinion testimony of an unqualified layperson.

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Eden Decl., at ¶ 3 ("Google's Fed. R. Evid. 401, 402, 403, 602, 701, procedures and practices for 702 statement is irrelevant, responding to DMCA notices have The

made it essentially impossible for us argumentative, conclusory, speculative, to protect our property. Google lacks foundation, does not appear to be seems to be an adversary rather than within someone trying to help.") the witness's personal knowledge, and constitutes improper

GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF MARGARET JANE EDEN

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 DATED: March 15, 2010 23 24 25 26 27 28
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opinion testimony. 3. Eden Decl. ¶¶ 4, 6, 7 Fed. R. Evid. 401, 403, 602, 701, 702, 1002 The statements are irrelevant, the argumentative, mischaracterize

document, speculative, lack foundation, are not within the witness's personal knowledge, constitute improper legal opinion, and are improper opinion testimony. 4. Eden Decl., at ¶ 8 Fed. R. Evid. 401, 402, 403, 602, 701, 702 The statements are irrelevant, argumentative, conclusory, speculative, lack foundation, are not within the witness's personal knowledge, and constitute improper opinion testimony of a layperson. 5. Eden Decl. Exhs. 1-3 Fed. R. Evid. 401, 402, 403, 602 The evidence is irrelevant. QUINN EMANUEL URQUHART & SULLIVAN, LLP By Michael Zeller Rachel Herrick Kassabian Attorneys for Defendant GOOGLE INC.

GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF MARGARET JANE EDEN

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