Perfect 10 Inc v. Google Inc et al

Filing 809

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

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QUINN EMANUEL URQUHART & SULLIVAN, LLP Michael T. Zeller ( Bar No . 196417) michaelzeller @ quinnemanuel.com 865 South Figueroa Street , 10th Floor Los Angeles , California 90017-2543 Telephone : [phone] Facsimile : 213) 443-3100 Charles K. erhoeven ( Bar No . 170151} charl esverhoeven @ c^u innemanue l . com 50 California Street , 22nd Floor San Francisco , California 94111 Rachel Herrick Kassabian (Bar No . 191060} rachelkassabian quinner^Ianuel.com 555 Twin Dolphin rive, 5 Floor Redwood Shores, California 94065

9 Attorneys for Defendant Goggle Inc. 10 11 12 13 14 PIaintiff, 15
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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA PERFECT 10, INC., a California corporation, CASE NO. CV 04-9484 AHM (SHx} Consolidated with Case Na. CV 05753 AHM (SHx)] GOGGLE INC.'5 EVIDENTIARY OBJECTIONS TO THE DECLARATION OF LES SCHWARTZ IN SUPPORT OF PERFECT 10 ' 5 SECOND MOTION FOR PRELIMINARY INJUNCTION AGAINST GOGGLE Hon. A. Howard Matz AND COUNTERCLAIM PERFECT 10, INC., a California corporation,
Plaintiff, vs.

16 GOGGLE INC. a corporation; and 17 DOES 1 throug^i 100, inclusive, 18 Defendants.

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Date: Aril 5, 2010 Time: None Set Place: Courtroom 14 Discovery Cut-off: None Set Pre-trial Conference: None Set Trial Date: Nane Set

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24 AMAZON.COM, INC., a corporation;
25 26 27 A9.COM, INC. a corporation; and DOES 1 through 100, inclusive, Defendants.

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01980 .5J320/3371025.2 I

GOGGLE INC.'S EVIDENTIARY OB7ECTIONS TO THE DECLARATION OF LES 5CI-iWARTZ

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Google hereby submits the following objections to the Declaration of Les

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

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11 without first allowing Google a fair opportunity to depose Schwartz.2 The Schwartz 12 Declaration should be stricken on this basis. 13 iI. 14 1S THE SCHWARTZ 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 Schwartz-it is about 17 P10's claims of infringement of its images and its DMCA notices to Google. The
18 Schwartz Declaration, along with the declarations of Dean Hoffman, C.J. Newton,

19 and Margaret Jane Eden, are a sideshow and should be disregarded as such. Unit

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21 22 23 24 2S 2fi 27 3 The Schwartz Declaration is the same declaration, with the same signature date, that P10 submitted from Mr. Schwartz in support of its apposition to Google's DMCA Motions {Dkt No. 478), 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. S 1 S. z 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. Schwartz since his first declaration was filed in August 2009. 4n July 27, 2009, (footnote continued}
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01984.51320!3371025.2

GOGGLE INC.'S EVIDENTIARY OB7ECTfONS TO THE DECLARATION OF LES SCHWARTZ

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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"); refferson y. Vickers, Inca, 102 F.3d 960, 963 (8th Cir. 1996} (same}. 4' III. 5I 6 7 PORTLONS OF THE EVIDENCE OFFERED BY P14 IN THE SCHWARTZ DECLARATION ARE INADMISSIBLE AND SHOULD BE DISREGARDED. The Schwartz Declaration should be disregarded for purposes of Perfect 10's

8 Second PI Motion for the additional reason that it is inadmissible under the Federal 9 Rules of 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 cansider 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 Beilin^ Tong Ren Tan _,USA) Corp. v. TRT USA,,Corb., --- F.Supp.2d ----, 2409 g( 18 WL 510$580, at *3 {N.D. CaI. Dec. 18, 2009} (upholding evidentiary objections and I9 denying preliminary injunction); U.S. v. Guess, 2004 WL 3314940, at *4 (S.D. Cal. 2a Dec. 1 S, 2004} ("conditional inferences, innuendo, and even strong suspicions do 21 not satisfy [the movant's] burden"}; Kitsa Ph sicians Service v. Washin ton

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" Because P10 has had nearly six years to

24 and denying preliminary injunction}. 25 26

27 Goggle filed a motion seeking leave to take additional depositions (Dkt No. 471). The Court has not yet ruled on Google ' s motion. 28
0198D .SI320I337iQ25.2

GOOGLE INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF LE5 SCHWARTZ

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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.

4 R. Evid. 401; 403; BeiLg Tong Ren Tang, 2009 WL 5148580, at *3 (striking 5 irrelevant evidence). Testimonial evidence must be based on the personal

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. la 701, 742. The Schwartz Declaration fails to meet one or more of these criteria, as 11 12 13 14 15 16 I7 18 19 20 21 22 23 24 25 26 27 28
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set forth below.
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Schwartz DecL, at ¶¶ 2, 3, 4

Fed. R. Evid. , 401 , , , 402, , 403, , 642, , 70, 117a2^^ The statements are irrelevant,

argumentative, constitute improper legal opinion, speculative, lack foundation, and constitute improper opinion testimony. 2. Schwartz Decl., at ¶ 5 {"I was Fed. R. Evid. 401, 402, 403, 602, 701, 742 very angry with the way Google The statement is irrelevant, argumentative, was avoiding removing of the speculative, confuses the issues, lacks

pirated software company.")

my foundation, is not within the witness's personal knowledge, and constitutes

improper opinion testimony. 3. Schwartz Decl., at ¶ 6 ("Pirated Fed. R. Evid. 401, 442, 403 copies of my company's software The statement is contradicted by the are still being offered on Google evidence to which it cites. Groups, Specifically,

at the Google Groups webpage Mr. Schwartz

GOOGLE INC.'S EVIDENTIARY OB7ECTIONS TO THE DECLARATION OF LES SCHWARTZ

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http://groups.google.comlgroup/b elfnancelbrowse_threadlthreadld

identifies (associated with the URL he references) does not sell Mr. Schwartz's software. only by The Google the and

1 e3I6c832d03aff/, the same URL DecisionBar shown first on my June 17, 2008 email, Exhibit 4. Groups

webpage

mentions name,

Attached as DecisionBar

software to

Exhibit 5 is a download of the provides relevant pages from that URL,

Iinks

another

webpage

associated with an entity called Forex which also does not sell the See Rebuttal The

showing pirated copies of my Club,

company's software being offered DecisionBar software.

for sale (see highlighted URLs} as Poovala Dec. ¶ 20 (Dkt. Na. 534). of July 27, 2009.") statements argumentative, foundation. are also

irrelevant, and lack

speculative,

Schwartz Decl., ¶ 7 ("Google Fed. R. Eyd. 401, 402, 403,._602, 701, 702 kept giving me cantradictary The statements mischaracterize the facts and documents referenced, and are

instructions, and even when I did

what they asked, Google did not irrelevant,

argumentative,

speculative, lack

remove mast of the infringing constitute improper Iay opinion, material. Google

was being foundation, are not within the witness's

disingenuous in that it was saying personal knowledge. that the material was not there when clearly it was. I got the impression that Google was just trying to make me jump through hoops, to make the process

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unnecessarily difficult, so that I would stop sending notices. I

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GOOGLE INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF LE5 SCHWARTZ

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sent Google approximately 3 S to 50 notices, and as far as I can tell, Google did not remove mare than a handful of the URLs I The pirated

complained about.

material, DecisionBar software, was obviously being offered an the sites, and yet Google claimed it couldn't find it.") Schwartz Decl., at ¶ S ("Based Fed. R. Evid. 401, 4Q2 ,,.,403, 602, 701, 702 on my experience with Google, I The statement is irrelevant, argumentative,

have come to the conclusion that speculative, lacks foundation, is not within Gaogle's procedure sham.") Schwartz Decl., Exhs . I-4 Fed. R. Evid. 401, 4a2, 403 The evidence is irrelevant. Schwartz Deck, Exh. 5 Fed. R. Eyid. 401, 403, 901 The evidence is irrelevant and not properly authenticated, and is mischaracterized in paragraph 6 of the Schwartz Declaration. supposed is nothing DMCA the witness's personal knowledge, and but a constitutes improper opinion testimony.

22 DATED: March 15, 2010 23 24 25 26 27 28
01980 .51 3 20/3 3 7 1 02 5.2 ^ _

QUINN EMANUEL URQUHART &
SULLIVAN, LLP
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Michael Zeller Rachel Herrick Kassabian Attorneys far Defendant GOOGLE INC.

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GOOGLE INC.'S EViDBNTIARY OB7ECTIONS TO THE DECLARATION OF LE5 SCHWARTZ