Perfect 10 Inc v. Google Inc et al

Filing 805

EVIDENTIARY OBJECTIONS in opposition re: MOTION for Preliminary Injunction Against Defendant Google Inc. #772 Google Inc.'s Evidentiary Objections to the Declaration of Dean Hoffman 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 14 15 vs. 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 DEAN HOFFMAN IN SUPPORT OF PERFECT 10'S SECOND MOTION FOR PRELIMINARY INJUNCTION AGAINST GOOGLE Hon. A. Howard Matz Date: April 5, 2010 Time: None Set Place: Courtroom 14 Discovery Cut-off: None Set Pre-trial Conference: None Set Trial Date: None Set

PERFECT 10, INC., a California 13 corporation, Plaintiff,

16 GOOGLE INC., a corporation; and DOES 1 through 100, inclusive, 17 Defendants. 18 19 AND COUNTERCLAIM 20 PERFECT 10, INC., a California corporation, 21 Plaintiff, 22 vs. 23 AMAZON.COM, INC., a corporation; 24 A9.COM, INC., a corporation; and DOES 1 through 100, inclusive, 25 Defendants. 26 27 28
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GOOGLE INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF DEAN HOFFMAN

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Google hereby submits the following objections to the Declaration of Dean

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

10 relevant to the case. Instead, P10 has sprung Hoffman's declaration upon Google, 11 without first allowing Google a fair opportunity to depose Hoffman.2 The Hoffman 12 Declaration should be stricken on this basis. 13 II. 14 15 THE HOFFMAN 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 Hoffman­it is about 17 P10's claims of infringement of its images and its DMCA notices to Google. The 18 Hoffman Declaration, along with the declarations of C.J. Newton, Margaret Jane 19 Eden, and Les Schwartz, are a sideshow and should be disregarded as such. Unit 20 21 22 23 24 25 26 27 28
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The Hoffman Declaration is the same declaration, with the same signature date, that P10 submitted from Mr. Hoffman in support of its opposition to Google's DMCA Motions (Dkt No. 476), 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. 510. 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 Mr. Hoffman since his first declaration was filed in August 2009. On July 27, 2009, Google filed (footnote continued)
GOOGLE INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF DEAN HOFFMAN

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

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

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Such evidence must be relevant to the claims and defenses of the case. Fed. Testimonial evidence must be based on the personal

2 R. Evid. 401; 403; Beijing Tong Ren Tang, 2009 WL 5108580, at *3 (striking 3 irrelevant evidence). 4 knowledge of the witness offering the evidence. Fed. R. Evid. 602. Testimony 5 requiring scientific, technical, or other specialized knowledge may be given only by 6 an expert witness with the requisite knowledge, skill, experience, training, or 7 education, and opinion testimony is not permitted of a lay person. Fed. R. Evid. 8 701, 702. The Hoffman Declaration fails to meet one or more of these criteria, as 9 set forth below. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Proffered Evidence 1.

Objection statements are argumentative, constitute

Hoffman Decl., at ¶ 2 ("The Fed. R. Evid. 401, 402, 403, 602 software sold by Strategic Trading The was copyrighted. There were irrelevant, speculative,

websites that copied the software and improper legal opinions, and lacks offered it for download on the foundation. Internet, without Strategic Trading's permission. Most of these websites charged for the download, and of course Strategic Trading did not receive any of this money. Google's search engine provided, and still provides, links to the websites offering the infringing downloads of our software.")

not yet ruled on Google's motion. -3-

GOOGLE INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF DEAN HOFFMAN

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2.

Hoffman Decl. ¶¶ 3-6

Fed. R. Evid. 401, 402, 403, 602, 701, 702 The legal statements opinion, are irrelevant, improper lack argumentative, constitute

speculative,

foundation, and constitute improper opinion testimony. 3. Hoffman Decl., at ¶ 7 Fed. R. Evid. 401, 402, 403, 602, 701, 702 The statements are irrelevant, lack speculative, opinion, 4. and argumentative, constitute

foundation, constitute improper legal improper opinion testimony of a layperson. Hoffman Decl., at ¶ 8 ("My Fed. R. Evid. 401, 402, 403, 602, 701, experience is that Google made some 702 attempt to take down links from the The notices to Chillingeffects.org to let legal statements opinion, are irrelevant, improper lack first couple of notices, but sent the argumentative, constitute

speculative,

the copyright owner know that it foundation, and constitute improper wasn't going to do them any good to opinion testimony of a layperson. send take-down notices. After the first couple of notices, when I had the nerve to send some more, Google just didn't do anything at all to remove the infringing links.") 5. Hoffman Decl., at ¶ 9 ("Strategic Fed. R. Evid. 401, 402, 403, 602, 701

GOOGLE INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF DEAN HOFFMAN

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Trading had to stop offering new 702 software for sale, because we were The Internet. In other words, we were legal because of Google's refusal statements opinion, are irrelevant, improper lack unable to control infringement on the argumentative, constitute

speculative,

driven out of this line of business foundation, and constitute improper to opinion testimony of a layperson. remove infringing links from its search results and sending my takedown notices to Chillingeffects.org for publication on the Internet.") QUINN EMANUEL URQUHART & SULLIVAN, LLP By Michael Zeller Rachel Herrick Kassabian Attorneys for Defendant GOOGLE INC.

12 DATED: March 15, 2010 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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