Perfect 10 Inc v. Google Inc et al

Filing 806

EVIDENTIARY OBJECTIONS in opposition re: MOTION for Preliminary Injunction Against Defendant Google Inc. #772 Google Inc.'s Evidentiary Objections to the Declaration of Jeffrey Mausner 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) [Consolidated with Case No. CV 054753 AHM (SHx)] GOOGLE INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF JEFFREY MAUSNER IN SUPPORT OF PERFECT 10'S SECOND MOTION FOR A PRELIMINARY INJUNCTION 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

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'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF JEFFREY MAUSNER

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Google hereby submits the following objections to the Declaration of Jeffrey The Mausner Declaration is

2 Mausner ("Mausner Declaration"), Submitted in Support of P10's Second Motion for 3 a Preliminary Injunction ("Second PI Motion"). 4 objectionable for several reasons, and should be disregarded or accorded little or no 5 weight in the determination of Perfect 10's Second PI Motion. 6 I. 7 8 PORTIONS OF THE MAUSNER DECLARATION ARE INADMISSIBLE AND SHOULD BE DISREGARDED. The Mausner Declaration should be disregarded for purposes of the Perfect

9 10's Second PI Motion becuase it is inadmissible under the Federal Rules of 10 Evidence. 11 The Federal Rules of Evidence apply to evidence submitted to the Court on 12 motion practice. Fed. R. Evid. 101 (Rules of Evidence apply to all proceedings in the 13 courts of the United States); Fed. R. Evid. 1101 (listing exceptions to Rule 101). 14 While courts have some discretion to consider inadmissible evidence when a 15 preliminary injunction is urgently needed to prevent irreparable harm before a full 16 resolution on the merits is possible, courts routinely decline to consider, or afford any 17 weight to, such inadmissible evidence in appropriate circumstances. See Beijing 18 Tong Ren Tang (USA) Corp. v. TRT USA Corp., --- F.Supp.2d ----, 2009 WL 19 5108580, at *3 (N.D. Cal. Dec. 18, 2009) (upholding evidentiary objections and 20 denying preliminary injunction); U.S. v. Guess, 2004 WL 3314940, at *4 (S.D. Cal. 21 Dec. 15, 2004) ("conditional inferences, innuendo, and even strong suspicions do not 22 satisfy [the movant's] burden"); Kitsap Physicians Service v. Washington Dental 23 Service, 671 F.Supp. 1267, 1269 (W.D. Wa. 1987) (refusing to consider affidavits 24 "that would have been inadmissible under the Federal Rules of Evidence" and 25 denying preliminary injunction). Because P10 has had nearly six years to obtain 26 evidence regarding its Second PI Motion, it is particularly appropriate to hold P10's 27 evidence to the usual standards of admissibility for motion practice. 28
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GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF JEFFREY MAUSNER

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Such evidence must be relevant to the claims and defenses of the case. Fed. R.

2 Evid. 401; 403; Beijing Tong Ren Tang, 2009 WL 5108580, at *3 (striking irrelevant 3 evidence). Testimonial evidence must be based on the personal knowledge of the 4 witness offering the evidence. Fed. R. Evid. 602. Testimony requiring scientific, 5 technical, or other specialized knowledge may be given only by an expert witness 6 with the requisite knowledge, skill, experience, training, or education, and opinion 7 testimony is not permitted of a lay person. Fed. R. Evid. 701, 702. The Mausner 8 Declaration fails to meet one or more of these criteria, as set forth below. 9 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. Exhs. A & AA

Objection The statements are irrelevant because no injunction employing a "check the box" mechanis m ultimately was entered, so the referenced correspondence (all of which predates the Ninth Circuit's May 2007 decision in this case) has no bearing here. statements argumentative are also because irrelevant Mr. The and

Mausner Dec. at ¶¶ 2-13 and Fed. R. Evid. 401, 402, 403, 602, 701

Mausner's

personal opinions have no bearing on P10's probability of success on its claims). 2. Mausner Dec. at ¶ 14 Fed. R. Evid. 401, 402, 403, 602, 701 ("Google incorrectly stated: The statement is argumentative, improper `[T]here is nothing that Google opinion testimony and irrelevant because Mr. can do to remove of the the Mausner's personal opinions regarding the site about which he has no personal knowledge offending content without the accuracy of state ments concerning subjects cooperation administrator. . . . Only an have no bearing on P10's probability of

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administrator can, by including success on its claims. The statement is also code that blocks our robots or speculative, does not appear to be based upon placing a request with us, the witness's personal knowledge, and lacks prevent being cannot his/her page list. exclude from foundation. Without material

administrator cooperation we available on the Internet from our index.") 3. Mausner Dec. at ¶ 15 ("This Fed. R. Evid. 401, 402, 403, 602, 701 letter makes clear that Google The statement is argumentative, irrelevant and takes the position that it does improper opinion testimony because Mr. not have to remove or disable Mausner's personal interpretation of Google's access to usenet sites correspondence has no bearing on P10's The statement is also speculative and lacks foundation. 4. Mausner Dec. at ¶ 16 and Fed. R. Evid. 401, 402, 403, 602, 801-04 Ex. C 5. The evidence is irrelevant, lacks foundation, and constitutes inad missible hearsay. Mausner Dec. at ¶¶ 17, 18 & Fed. R. Evid. 401, 402, 403, 801-04 20, and Exs. D, E, G 6. The evidence is irrelevant and constitutes inadmissible hearsay. Mausner Dec. at ¶ 21 (" . . . Fed. R. Evid. 401, 402, 403, 602, 701 in 10 which has Google claimed admits The statement is argumentative, irrelevant and regarding Mausner's personal interpretation of Mr. certain aspects of what Perfect improper opinion testimony, because Mr. (paysites), not matter what probability of success on its claims. notice Perfect 10 gives . . .")

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Google's failure to remove or Brougher's Rebuttal Declaration has no disable Search.") 7. Mausner Dec. at ¶ access in Image bearing on P10's probability of success on its claims. The statement is also speculative and lacks foundation. 28 Fed. R. Evid. 401, 402, 403, 602, 701 ("Attached hereto as Exhibit I The statement is argumentative, irrelevant and are true and correct copies of improper opinion testimony, because Mr. emails Kincaid, between an Valerie Mausner's personal interpretation regarding for the import of Google's correspondence has no The statement is also speculative, attorney

Perfect 10, and Tom Nolan, an bearing on P10's probability of success on its attorney for Google, in which claims. Google takes the position that mischaracterizes the document referenced, it can and will continue to and lacks foundation. publicize Perfect 10's DMCA notices Chillingeffects.org." 8. Mausner Dec. at ¶ 29 and Fed. R. Evid. 401, 402, 403 Ex. J. The evidence is irrelevant, because Mr. Schwartz's claimed DMCA notices have no bearing on P10's probability of success on its claims. 9. Mausner Dec. at ¶ 30 Fed. R. Evid. 401, 402, 403 The statements are argumentative and irrelevant. That Google redacted portions of documents it produced based upon the attorney-client privilege and attorney work on

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1 2 3 4 5 6 7 DATED: March 15, 2010 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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product doctrine has no bearing on P10's probability of success on its claims. 10. Mausner Dec. at ¶ 32, 34, & Fed. R. Evid. 401, 402, 403, 602, 801-04 35 and Exs. N, O, P The evidence is irrelevant, lacks foundation, and constitutes inad missible hearsay. QUINN EMANUEL URQUHART & SULLIVAN, LLP By Michael Zeller Rachel Herrick Kassabian Attorneys for Defendant GOOGLE INC.

GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF JEFFREY MAUSNER

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