Perfect 10 Inc v. Google Inc et al

Filing 808

EVIDENTIARY OBJECTIONS in opposition re: MOTION for Preliminary Injunction Against Defendant Google Inc. #772 Google Inc.'s Evidentiary Objections to the Declaration of Melanie Poblete 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 MELANIE POBLETE 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 MELANIE POBLETE

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Google hereby submits the following objections to the Declaration of Melanie The Poblete

2 Poblete ("Poblete Declaration"), Submitted in Support of Perfect 10's Second Motion 3 for Preliminary Injunction Against Google ("Second PI Motion"). 4 Declaration is objectionable for several reasons, and should be disregarded or 5 accorded little or no weight in the determination of Perfect 10's Second PI Motion. 6 I. 7 8 10 PORTIONS OF THE POBLETE DECLARATION ARE INADMISSIBLE AND SHOULD BE DISREGARDED. The Poblete Declaration should be disregarded for purposes of P10's Second The Federal Rules of Evidence apply to evidence submitted to the Court on

9 PI Motion because it is inadmissible under the Federal Rules of Evidence. 11 motion practice. Fed. R. Evid. 101 (Rules of Evidence apply to all proceedings in the 12 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 any 16 weight to, such inadmissible evidence in appropriate circumstances. See Beijing 17 Tong Ren Tang (USA) Corp. v. TRT USA Corp., --- F.Supp.2d ----, 2009 WL 18 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 not 21 satisfy [the movant's] burden"); Kitsap Physicians Service v. Washington Dental 22 Service, 671 F.Supp. 1267, 1269 (W.D. Wa. 1987) (refusing to consider affidavits 23 "that would have been inadmissible under the Federal Rules of Evidence" and 24 denying preliminary injunction). Because P10 has had nearly six years to obtain 25 evidence regarding its Second PI Motion, it is particularly appropriate to hold P10's 26 evidence to the usual standards of admissibility for motion practice. 27 Such evidence must be relevant to the claims and defenses of the case. Fed. R. 28 Evid. 401; 403; Beijing Tong Ren Tang, 2009 WL 5108580, at *3 (striking irrelevant
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GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF MELANIE POBLETE

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1 evidence). Testimonial evidence must be based on the personal knowledge of the 2 witness offering the evidence. Fed. R. Evid. 602. Testimony requiring scientific, 3 technical, or other specialized knowledge may be given only by an expert witness 4 with the requisite knowledge, skill, experience, training, or education, and opinion 5 testimony is not permitted of a lay person. Fed. R. Evid. 701, 702. The Poblete 6 Declaration fails to meet one or more of these criteria, as set forth below. 7 8 A. The Poblete Declaration Concerns "The Sample" And Is Irrelevant. This "Sample" contains 12 images used for "illustrative The Poblete Declaration discusses a purported "Sample" of images utilized in

9 the Zada Declaration.

10 purposes," and fails to address the vast majority of P10's copyright infringement 11 claims. See, e.g., Poblete Dec. ¶¶ 2-15. P10's Second PI Motion claims probable 12 success on the entirety of P10's copyright claims, and seeks a sweeping injunction 13 covering all of those claims. Thus, the portions of the Poblete Declaration discussing 14 this miniscule subset of 12 images cannot establish probable success on the merits of 15 P10's claims, and are irrelevant to P10's Second PI Motion. See Fed. R. Evid. 401, 16 402, 403; see, e.g., Dugan v. R.J. Corman R.R. Co., 344 F.3d 662, 669 (7th Cir. 17 2003); cf. Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 924 F. Supp. 18 1559, 1562 (S.D. Cal. 1996), aff'd, 109 F.3d 1394 (9th Cir. 1997) (Plaintiff has 19 "burden of showing a likelihood of success on the merits" to obtain injunction.). 20 21 22 B. The Poblete Declaration Does Not Concern Alleged Publicity Rights For The "Nine Models" At Issue And Is Thus Irrelevant. The Poblete Declaration also references sub-folders of purported "Model

23 Releases" and "Rights of Publicity assignments." Poblete Dec. ¶ 3. Neither folder 24 contains a complete set of documentation for the nine models on which P10 bases its 25 publicity claim. Compare P10's Second Amended Complaint (Dkt. No. 303-2), Ex. 8 26 (listing models Amber Smith, Amy Weber, Aria Giovanni, Irina Voronina, Monika 27 Zsibrita, Nataskia Maren, Sasha Brinkova, Shannon Hobbs, Talia Harvalik) to Zada 28 Dec. in Support of P10's Second PI Motion, Ex. 9 (sub-folders to "The Sample"
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GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF MELANIE POBLETE

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1 folder referencing models, "Model Releases" and "Rights of publicity").

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2 specifically, these folders contain documentation for models on which P10 does not 3 base its claim, such as Erica Campbell, and are therefore irrelevant. They also fail to 4 contain documentation for models on which P10 does base its claim, such as Shannon 5 Hobbs and Sasha Brinkova. Because P10's Second PI Motion claims probable 6 success on the entirety of P10's publicity claims with respect to all nine models, the 7 portions of Poblete Declaration discussing an incorrect and incomplete list of P10 8 models is irrelevant and cannot establish probable success on the merits of P10's 9 publicity claims. See Fed. R. Evid. 401, 402, 403. 10 11 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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C.

Additional Portions of the Poblete Declaration Are Inadmissible.

Additional portions of the Poblete Declaration are inadmissible and should be Proffered Evidence 1. have deposit filed verified material the Objection

12 disregarded in the determination of P10's Second PI Motion, as set forth below. Poblete Dec. at ¶ 2 ("I Fed. R. Evid. 401, 403, 602, 1002 that The statement is irrelevant, conclusory, lacks for witness's personal knowledge. The statement also U.S. the deposit material for P10's copyright registrations Perfect 10 has in its foundation, and does not appear to be within the copyright registrations violates the Best Evidence Rule, because copies of with Copyright Office, over (which P10 claims to have records of) are the best 45,000 unique images") evidence of the contents of those deposit materials.

GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF MELANIE POBLETE

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1 DATED: March 15, 2010 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
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QUINN EMANUEL URQUHART & SULLIVAN, LLP By Michael Zeller Rachel Herrick Kassabian Attorneys for Defendant GOOGLE INC.

GOOGLE'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF MELANIE POBLETE

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