Perfect 10 Inc v. Google Inc et al

Filing 807

EVIDENTIARY OBJECTIONS in opposition re: MOTION for Preliminary Injunction Against Defendant Google Inc. #772 Google Inc.'s Evidentiary Objections to the Declaration of C.J. Newton 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 C.J. NEWTON IN SUPPORT OF PERFECT 10'S SECOND MOTION FOR A 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

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
01980.51320/3059206.2 01980.51320/3370884.2

Defendants.

GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF C.J. NEWTON

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Google hereby submits the following objections to the Declaration of C.J.

2 Newton ("Newton Declaration"), Submitted in Support of Perfect 10's Second 3 Motion for a Preliminary Injunction Against Google ("Second PI Motion").1 The 4 Newton 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 NEWTON DECLARATION SHOULD BE STRICKEN BECAUSE NEWTON WAS NOT DISCLOSED. P10 failed to disclose Newton as a person having knowledge of the facts

10 relevant to the case. Instead, P10 has sprung Newton's declaration upon Google, 11 without first allowing Google a fair opportunity to depose Newton.2 The Newton 12 Declaration should be stricken on this basis. 13 II. 14 15 THE NEWTON 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 Newton­it is about P10's 17 claims of infringement of its images and its DMCA notices to Google. The Newton 18 Declaration, along with the declarations of Dean Hoffman, Margaret Jane Eden, and 19 Les Schwartz, are a sideshow and should be disregarded as such. Unit Drilling Co. 20 21 22 23 24 25 26 27 28
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The Newton Declaration is the same declaration, with the same signature date, that P10 submitted from CJ Newton in support of its opposition to Google's DMCA Motions (Dkt No. 477), 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. 513. 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 Newton since the first Newton Declaration was filed in August 2009. On July 27, 2009, (footnote continued) -1GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF C.J. NEWTON

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

7 PI Motion for the additional reason that it is inadmissible under the Federal Rules of 8 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 Google filed a motion seeking leave to take additional depositions (Dkt No. 471). 28 (footnote c o n t i n u e d ) 01980.51320/3370884.2 -201980.51320/3059206.2
GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF C.J. NEWTON

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1

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 Newton Declaration fails to meet one or more of these criteria, as set 9 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. Newton Decl., at ¶¶ 2, 3

Google's Objection Fed. R. Evid. 401, 402, 403, 602, 701, 702, Fed. R. Civ. P. 26 The legal statements opinion, are irrelevant, lack argumentative, constitute improper speculative, foundation, and constitute improper opinion testimony.

2.

Newton Decl., at ¶ 4 ("For example, Fed. R. Evid. 401, 402, 403, 602, one of the last notices I sent to Google, 701, 702 before giving up is attached as Exhibit The statements are irrelevant, lack 2. As of today, Google still has not argumentative, speculative,

removed or disabled access to the link foundation, and constitute improper set forth in that notice. In fact, the first opinion testimony. search result Google provides in response to the noted search term is the

The Court has not yet ruled on Google's motion. -3GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF C.J. NEWTON

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 5. 4. 3.

very same infringing result from a search conducted on May 28, 2009, using the search term set forth in my September 17, 2007 notice.") Newton Decl., at ¶ 5 ("Even though Fed. R. Evid. 401, 402, 403, 602, Google did not respond to my notices 701, 702 or remove links to the infringing The copies of my notices statements are irrelevant, lack articles from its search results, it sent argumentative, speculative,

to foundation, and constitute improper

chilingeffects.org, a web site that opinion testimony. published my notices on the Internet. My notices, which were then published, gave the location of where the infringing articles were located, so that was another way that people could find the infringing articles.") Newton Decl. Exh. 1 Newton Decl. Exh. 2-3 Fed. R. Evid. 401, 402, 403 The evidence is irrelevant. Fed. R. Evid. 401-403, 602, 901 The evidence is irrelevant and is not properly authenticated. QUINN EMANUEL URQUHART & SULLIVAN, LLP By Michael Zeller Rachel Herrick Kassabian Attorneys for Defendant GOOGLE INC. -4GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF C.J. NEWTON

22 DATED: March 15, 2010 23 24 25 26 27 28
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