Perfect 10 Inc v. Google Inc et al

Filing 811

EVIDENTIARY OBJECTIONS in opposition re: MOTION for Preliminary Injunction Against Defendant Google Inc. #772 Google Inc.'s Evidentiary Objections to the Declaration of Sean Chumura 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 SEAN CHUMURA 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
01980.51320/3371612.2

Defendants.

GOOGLE INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF SEAN CHUMURA

1

Google hereby submits the following objections to the Declaration of Sean

2 Chumura ("Chumura Declaration"), Submitted in Support of Perfect 10's Second 3 Motion for Preliminary Injunction Against Google ("Second PI Motion").1 The 4 Chumura 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 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 The Chumura Declaration is the same declaration, with the same signature 27 date, that P10 submitted from Mr. Chumura in support of its opposition to Google's DMCA Motions (Dkt No. 479), with an updated caption reflecting the title of the 28 (footnote continued)
01980.51320/3371612.2

THE CHUMURA DECLARATION SHOULD BE STRICKEN BECAUSE CHUMURA IS NOT QUALIFIED AS AN EXPERT. The Chumura Declaration should be disregarded because Mr. Chumura does

not have the necessary qualifications to testify as an expert in this matter. Mr. Chumura does not tie his qualifications and purported expertise, which involve federal law enforcement and other governmental agency work, to Google's search engine or services. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 591 (1993) (an expert's testimony must "aid the jury in resolving a factual dispute."); see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-48 (1999) (expert must have some form of specialized knowledge). He identifies no specialized knowledge or expertise whatsoever that would qualify him to opine on the subjects set forth in his declaration, including (1) the inner workings of search engine technology, including Google's proprietary Image and Web Search services specifically, (2) what information Google would or would not need for its internal processing team to locate and suppress or take down alleged infringing links or content, and (3) whether Google's DMCA instructions are "necessary" in Mr. Chumura's opinion. Because Chumura lacks the necessary qualifications to testify

1

GOOGLE INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF SEAN CHUMURA

-1-

1 2 4 5

as an expert on these subjects, his declaration should be disregarded, or in the alternative, his testimony should be accorded no evidentiary weight. PORTIONS OF THE CHUMURA DECLARATION SHOULD BE DISREGARDED. The Chumura Declaration should be disregarded for purposes of Perfect 10's

3 II.

6 Second PI Motion, because it is inadmissible under the Federal Rules of Evidence. 7 The Federal Rules of Evidence apply to evidence submitted to the Court on motion 8 practice. Fed. R. Evid. 101 (Rules of Evidence apply to all proceedings in the courts 9 of the United States); Fed. R. Evid. 1101 (listing exceptions to Rule 101). While 10 courts have some discretion to consider inadmissible evidence when a preliminary 11 injunction is urgently needed to prevent irreparable harm before a full resolution on 12 the merits is possible, courts routinely decline to consider, or afford any weight to, 13 such inadmissible evidence in appropriate circumstances. See Beijing Tong Ren 14 Tang (USA) Corp. v. TRT USA Corp., --- F.Supp.2d ----, 2009 WL 5108580, at *3 15 (N.D. Cal. Dec. 18, 2009) (upholding evidentiary objections and denying 16 preliminary injunction); U.S. v. Guess, 2004 WL 3314940, at *4 (S.D. Cal. Dec. 15, 17 2004) ("conditional inferences, innuendo, and even strong suspicions do not satisfy 18 [the movant's] burden"); Kitsap Physicians Service v. Washington Dental Service, 19 671 F.Supp. 1267, 1269 (W.D. Wa. 1987) (refusing to consider affidavits "that 20 would have been inadmissible under the Federal Rules of Evidence" and denying 21 preliminary injunction). Because P10 has had nearly six years to obtain evidence 22 regarding its Second PI Motion, it is particularly appropriate to hold P10's evidence 23 to the usual standards of admissibility for motion practice. 24 26 27 present motion. Google filed objections to this declaration in connection with its 28 (footnote continued)
01980.51320/3371612.2

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

25 R. Evid. 401; 403; Beijing Tong Ren Tang, 2009 WL 5108580, at *3 (striking

GOOGLE INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF SEAN CHUMURA

-2-

1 irrelevant evidence).

Testimonial evidence must be based on the personal

2 knowledge of the witness offering the evidence. Fed. R. Evid. 602. Testimony 3 requiring scientific, technical, or other specialized knowledge may be given only by 4 an expert witness with the requisite knowledge, skill, experience, training, or 5 education, and opinion testimony is not permitted of a lay person. Fed. R. Evid. 6 701, 702. The Chumura Declaration fails to meet one or more of these criteria, as 7 specified below. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
01980.51320/3371612.2

Proffered Evidence 1.

Objection

Chumura Dec. at ¶ 3 and Ex. 1 ("I Fed. R. Evid. 401, 402, 403, 602, 701, have examined Exhibit 1 which is 702, Fed. R. Civ. P. 26 attached to this declaration, which I The statements are irrelevant to P10's obtained from Jeff Mausner. Page 1 probability of success on its claims. of Exhibit 1 is the output of a The statements also lack foundation. computer program that I created Further, Exhibit 1 is not properly under the direction of Dr. Norman authenticated, Zada. The program allows Perfect 10 disregarded and because should the be alleged

to select images from Google Image program referenced was not produced Search by checking a box that the to Google in discovery. Further, the program makes available next to statements constitute improper opinion each Google thumbnail. The program testimony because Mr. Chumura does places the date the Google search not appear to have the necessary was done in the upper right corner, expertise and puts the three links offered by testimony. Google for each image in the block to provide such expert

DMCA Motions on September 8, 2009. See Dkt. No. 508. -3-

GOOGLE INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF SEAN CHUMURA

1 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
01980.51320/3371612.2

Proffered Evidence corresponding to that image. The first URL after the term "Image" is the URL associated with Google's "See full-size image" link; the second URL after the term "Site" is the link Google provides to the underlying third party website (often called a Web Page URL); and the bottom URL after the term "Thumbnail" is the link to the location at which the "thumbnail" resides on Google's server. The program also has a Web Search option which allows Perfect 10 to save selected Google Web Search results.") 2.

Objection

Chumura Dec. at ¶¶ 4-8 and Exs. Fed. R. Evid. 401, 402, 403, 602, 701, 1-2 702 The statements are irrelevant because Mr. Chumura's personal opinions on the referenced subjects have no bearing on P10's probability of success on its claims. Further, Exhibit 1 is not because the alleged properly authenticated, and should be disregarded program referenced was not produced

GOOGLE INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF SEAN CHUMURA

-4-

1 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
01980.51320/3371612.2

Proffered Evidence

Objection to Google in discovery. Further, the statements constitute improper opinion testimony because Mr. Chumura does not appear to have the necessary expertise to provide expert testimony on the referenced subjects. evidence is also This speculative,

argumentative, lacks foundation, and is not within the witness's personal knowledge. referenced. DATED: March 16, 2010 QUINN EMANUEL URQUHART & SULLIVAN, LLP By Michael Zeller Rachel Herrick Kassabian Attorneys for Defendant GOOGLE INC. Further, the statements the documents mischaracterize

GOOGLE INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF SEAN CHUMURA

-5-