Perfect 10 Inc v. Google Inc et al

Filing 810

EVIDENTIARY OBJECTIONS in opposition re: MOTION for Preliminary Injunction Against Defendant Google Inc. #772 Google Inc.'s Evidentiary Objections to the Declaration of Sheena Chou 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) GOOGLE INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF SHEENA CHOU IN SUPPORT OF PERFECT 10, INC.'S SECOND MOTION FOR PRELIMINARY INJUNCTION AGAINST GOOGLE Hon. A. Howard Matz Date: April 5, 2010 Time: 10:00 a.m. 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 21 22 23 24 25 26 27 28
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Defendants.

GOOGLE INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF SHEENA CHOU

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Google hereby submits the following objections to the Declaration of Sheena The Chou

2 Chou ("Chou 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 THE CHOU DECLARATION SHOULD BE STRICKEN BECAUSE CHOU WAS NOT DISCLOSED AS AN EXPERT. In her Declaration, Ms. Chou repeatedly offers improper opinion testimony.

9 This testimony should be disregarded on multiple grounds. First, P10 failed to 10 disclose Chou as an expert witness in this matter. Further, at no point does Chou tie 11 her qualifications--she claims to "have a degree in Economics from UCLA and [be] 12 quite familiar with computers and the Internet"--to Google's search engine or 13 services. Chou Declaration ¶ 2. She identifies no specialized knowledge or 14 expertise whatsoever that would qualify her to opine on the subjects set forth in her 15 declaration, including (1) her purported evaluation of Google's DMCA compliance 16 program and an explanation of her preferred means for identifying allegedly 17 infringing websites. (2) the inner workings of Google's Blogger and Search 18 services, and (3) the "necessity" of Google's DMCA policies and 19 instructions. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 591 (1993) 20 (an expert's testimony must "aid the jury in resolving a factual dispute."); see 21 also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-48 (1999) (expert must have 22 some form of specialized knowledge). Because Chou plainly lacks the necessary 23 qualifications to testify as an expert on these subjects, her declaration should be 24 disregarded, or in the alternative, her testimony should be accorded no evidentiary 25 weight. 26 27 28
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GOOGLE INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF SHEENA CHOU

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1 II. 2 3

PORTIONS

OF

THE

CHOU

DECLARATION

SHOULD

BE

DISREGARDED. The Chou Declaration should be disregarded for purposes of the Perfect 10's

4 Second PI Motion for the additional reason it is inadmissible under the Federal 5 Rules of Evidence. 6 The Federal Rules of Evidence apply to evidence submitted to the Court on 7 motion practice. Fed. R. Evid. 101 (Rules of Evidence apply to all proceedings in 8 the courts of the United States); Fed. R. Evid. 1101 (listing exceptions to Rule 101). 9 While courts have some discretion to consider inadmissible evidence when a 10 preliminary injunction is urgently needed to prevent irreparable harm before a full 11 resolution on the merits is possible, courts routinely decline to consider, or afford 12 any weight to, such inadmissible evidence in appropriate circumstances. See 13 Beijing Tong Ren Tang (USA) Corp. v. TRT USA Corp., --- F.Supp.2d ----, 2009 14 WL 5108580, at *3 (N.D. Cal. Dec. 18, 2009) (upholding evidentiary objections and 15 denying preliminary injunction); U.S. v. Guess, 2004 WL 3314940, at *4 (S.D. Cal. 16 Dec. 15, 2004) ("conditional inferences, innuendo, and even strong suspicions do 17 not satisfy [the movant's] burden"); Kitsap Physicians Service v. Washington Dental 18 Service, 671 F.Supp. 1267, 1269 (W.D. Wa. 1987) (refusing to consider affidavits 19 "that would have been inadmissible under the Federal Rules of Evidence" and 20 denying preliminary injunction). Because P10 has had nearly six years to obtain 21 evidence regarding its Second PI Motion, it is particularly appropriate to hold P10's 22 evidence to the usual standards of admissibility for motion practice. 23 Such evidence must be relevant to the claims and defenses of the case. Fed. Testimonial evidence must be based on the personal 24 R. Evid. 401; 403; Beijing Tong Ren Tang, 2009 WL 5108580, at *3 (striking 25 irrelevant evidence). 26 knowledge of the witness offering the evidence. Fed. R. Evid. 602. Testimony 27 requiring scientific, technical, or other specialized knowledge may be given only by 28 an expert witness with the requisite knowledge, skill, experience, training, or
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GOOGLE INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF SHEENA CHOU

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1 education, and opinion testimony is not permitted of a lay person. Fed. R. Evid. 2 701, 702. The Chou Declaration fails to meet one or more of these criteria, as set 3 forth below. 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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Proffered Evidence 1. Chou Decl., at ¶¶ 3-5

Google's Objection Fed. R. Evid. 401, 402, 403, 602, 701, 702 The statements are irrelevant (because Google does not crawl or index websites (or those portions of websites) that are only accessible by entering a password, nor does it crawl or index content hosted on Usenet servers (Haahr Decl. ¶¶ 14-15)), speculative, lack foundation, constitute improper legal opinion, and do not appear to be based upon the witness's personal knowledge. Ms. Chou has never been disclosed by P10 as an expert in this case, nor does she appear to have the necessary expertise to provide such expert testimony.

2.

Chou Decl., at ¶ 6 ("One of my Fed. R. Evid. 401, 402, 403, 602 other assignments whether has been to The statements are irrelevant, lack determine Google has argumentative, speculative,

removed URLs identified by Perfect foundation, are not within the witness's 10 from its search results. I have personal -3knowledge, constitute

GOOGLE INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF SHEENA CHOU

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been able to do this simply by improper

legal

opinion,

and

are

inputting the URL provided by improper opinion testimony.

Further,

Perfect 10, without the starting http:// Ms. Chou has never been disclosed by or www., into the Google search P10 as an expert in this case, nor does box.") she appear to have the necessary expertise testimony. 3. Chou Decl., at ¶ 7 ("The Adobe files Fed. R. Evid. 401, 402, 403, 602, 701, provided by Perfect 10 in its notices 702, Fed. R. Civ. P. 26 have been sufficient to allow Google The to find the infringing material. statements are irrelevant, the lack constitute and are I argumentative, mischaracterize speculative, knowledge, legal opinion, to provide such expert

know this because I have extracted documents, files using Adobe's URL extraction personal feature, and have placed those same improper

hundreds of URLs from those same foundation, are not within the witness's

URLs into Google's search box or improper opinion testimony. Further, into my browser bar to verify that Ms. Chou has never been disclosed by those web pages were still either P10 as an expert in this case, nor does directly linked to by Google in its she appear to have the necessary search results, or were still on expertise Google's blogger.com servers. I was testimony. able to locate the infringing material in this manner using the URLs provided by Perfect 10 in its notices. I have been able to extract URLs from Adobe documents at the rate of approximately 5 URLs a minute.") -4to provide such expert

GOOGLE INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF SHEENA CHOU

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4.

Chou Decl., at ¶ 8

Fed. R. Evid. 401, 402, 403, 602 The statements are irrelevant, the argumentative, mischaracterize

document, speculative, lack foundation, are not within the witness's personal knowledge, constitute improper legal opinion, and are improper opinion testimony. Further, Ms. Chou has never been disclosed by P10 as an expert in this case, nor does she appear to have the necessary expertise to provide such expert testimony. 5. Chou Decl., at ¶ 9 ("I was also Fed. R. Evid. 401, 402, 403, 602, 1002 assigned to determine the number of The statement is argumentative, blogspot.com post URLs and other mischaracterizes the facts, irrelevant blogspot.com URLs that Perfect 10 (because Perfect 10's "Adobe style" identified to Google in its notices, notices were failed to provide Google and the number of identified with notice of any alleged lacks blogspot.com post-URLs that Google infringement), speculative,

had not suppressed as of July 2009. I foundation (among other things, the will use the term "post URL" to refer declarant provides no explanation for to what Google's Blogger DMCA how or what she allegedly did), and instructions call the "permalink of constitutes improper legal opinion and the post." post URLs, I found at least 219 opinion testimony. and at least 346 because they The statements electronic blogspot.com URLs that were not also violate the Best Evidence Rule, reference blogspot.com post URLs, for a total excerpts of certain of Perfect 10's -5-

GOOGLE INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF SHEENA CHOU

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of at least 565 blogspot.com URLs, DMCA notices, and the complete that Perfect 10 identified to Google notices June 28, 2007. themselves are the best in its Adobe style notices, beginning evidence of their contents. Further,

Of the 346 post Ms. Chou has never been disclosed by

URLs identified to Google, at least P10 as an expert in this case, nor does 190 had not been suppressed as of she appear to have the necessary February 2010.") 6. expertise testimony. Chou Decl., at ¶ 10 ("I have Fed. R. Evid. 401, 402, 403, 602, 701, observed that in a number of cases, 702 the full-size blogger image still The statements are argumentative, appears on Google's blogger.com irrelevant, speculative, conclusory, lack servers, even when the original foundation, and constitute improper blogspot site that displayed those legal opinion and opinion testimony by images no longer exists. In those a lay witness. the The statements also Evidence Rule, situations, there is no permalink or violate Best to provide such expert

top level domain of the blog and date because they reference and characterize of the blog entry that Perfect 10 certain of Perfect 10's DMCA notices could provide, as requested by without provided the top level domain with best attaching of them, their and the Google. Furthermore, Perfect 10 has complete notices themselves are the evidence contents. the date, as well as the permalink, in Further, Ms. Chou has never been most notices, because it has sent to disclosed by P10 as an expert in this Google a copy of the infringing web case, nor does she appear to have the page which typically displays that necessary expertise to provide such information. Perfect 10 has also expert testimony. provided to Google, in its DMCA -6-

GOOGLE INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF SHEENA CHOU

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notices, the complete URL of the blogger.com web page containing the full-size P10 image, along with a copy of that web page.") 7. Chou Decl., at ¶ 11 ("I have also Fed. R. Evid. 401, 402, 403, 602, 701, observed that image URLs on 702, Fed. R. Civ. P. 26 statements are irrelevant, the lack constitute and are mischaracterize speculative, knowledge, legal opinion, blogger.com are also available on The

blogspot.com servers, showing the argumentative, same image. The URL is the same, documents, For example, personal

except with the base URL changed. foundation, are not within the witness's "bp0.blogger.com/_aAjR8G9PWr8/R improper 3OFY9R8/s1600h/066_DeathSCPX_Nickie_Yager_0 2.jpg" displays the same image as Rzut2EjjNqI/AAAAAAAABZk/bH Nb3OFY9R8/s1600h/066_DeathSCPX_Nickie_Yager_0 2.jpg." substitute One can take any of the "bpX.blogger.com" for blogger URLs in the spreadsheet and "X+1.blogspot.com" and receive the same image. In other words, the images on blogger.com are also on blogspot.com. Bp2.blogger.com can -7-

zut2EjjNqI/AAAAAAAABZk/bHNb improper opinion testimony. Further, Ms. Chou has never been disclosed by P10 as an expert in this case, nor does she appear to have the necessary to provide such expert testimony.

"1.bp.blogspot.com/_aAjR8G9PWr8/ expertise

GOOGLE INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF SHEENA CHOU

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be can forth.") 8. be

substituted substituted

with with

3.bp.blogspot.com, bp3.blogger.com 4.bp.blogspot.com and so on and so Chou Decl., at ¶ 12 ("I have also Fed. R. Evid. 401, 402, 403, 602, 1002 done work to verify that Google has The statement is argumentative, not removed its ads from web pages mischaracterizes the facts, irrelevant that Perfect 10 has identified in its (because Perfect 10's defective notices notices.") failed to provide Google with notice of any alleged infringement), speculative, lacks foundation (among other things, the declarant provides no explanation for how or what she allegedly did), and constitutes improper legal opinion and opinion testimony. The statement also violates the Best Evidence Rule, because it references and characterizes certain of Perfect 10's DMCA notices without best attaching of them, their and the complete notices themselves are the evidence contents. Further, Ms. Chou has never been disclosed by P10 as an expert in this case, nor does she appear to have the necessary expertise to provide such expert testimony. -8-

GOOGLE INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF SHEENA CHOU

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9.

Chou Decl., at ¶ 13 ("I am quite Fed. R. Evid. 401, 402, 403, 602, 701, familiar with perfect10.com, which is 702 not a blog. The images on The statements are irrelevant, lack perfect10.com cannot be identified argumentative, speculative,

by a "permalink of the post" as there foundation, mischaracterize the facts, is no such thing on perfect10.com. I are not within the witness's personal have examined thousands of knowledge, constitute improper legal infringing blogger.com web pages opinion, and are improper opinion that Perfect 10 included in its DMCA testimony. The statements also violate notices to Google. Those web pages the Best Evidence Rule, because they consisted of a P10 Image and a reference and characterize certain of blogger.com URL. There was no Perfect 10's DMCA notices without notices themselves are the best other text on those web pages, no attaching them, and the complete posts, and no 'permalink of a post.'") evidence of their contents. Further,

Ms. Chou has never been disclosed by P10 as an expert in this case, nor does she appear to have the necessary expertise testimony. 10. Chou Decl., at ¶ 14 Fed. R. Evid. 401, 402, 403, 602, 701, 702 The statements are irrelevant, the argumentative, mischaracterize to provide such expert

documents and facts, speculative, lack foundation, are not within the witness's personal -9knowledge, constitute

GOOGLE INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF SHEENA CHOU

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improper

legal

opinion,

and

are

improper opinion testimony. Further, Ms. Chou has never been disclosed by P10 as an expert in this case, nor does she appear to have the necessary expertise testimony. QUINN EMANUEL URQUHART & SULLIVAN, LLP By Michael Zeller Rachel Herrick Kassabian Attorneys for Defendant GOOGLE INC. to provide such expert

GOOGLE INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF SHEENA CHOU

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