Perfect 10 Inc v. Google Inc et al

Filing 813

EVIDENTIARY OBJECTIONS in opposition re: MOTION for Preliminary Injunction Against Defendant Google Inc. #772 Google Inc.'s Evidentiary Objections to the Declaration of David O'Connor 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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1 QUINN EMANUEL URQUHART & SULLIVAN, LLP Michael T. Zeller (Bar No. 196417) michaelzeller@quinnemanuel.com 2 865 South Figueroa Street, 10th Floor 3 Los Angeles, California 90017-2543 Telephone: (213) 443-3000 4 Facsimile: (213) 443-3100 Charles K. Verhoeven (Bar No. 170151) charlesverhoeven@quinnemanuel.com 5 50 California Street, 22nd Floor 6 San Francisco, California 94111 Rachel Herrick Kassabian (Bar No. 191060) rachelkassabian@quinnemanuel.com 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 DAVID O'CONNOR 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 01980.51320/3370210.2 Defendants. GOOGLE INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF DAVID O'CONNOR 1 Google hereby submits the following objections to the Declaration of David 2 O'Connor ("O'Connor Declaration"), Submitted in Support of Perfect 10's Second 3 Motion for Preliminary Injunction Against Google ("Second PI Motion").1 The 4 O'Connor Declaration is objectionable for several reasons, and should be 5 disregarded or accorded little or no weight in the determination of Perfect 10's 6 Second PI Motion. 7 I. 8 9 THE O'CONNOR DECLARATION SHOULD BE STRICKEN BECAUSE O'CONNOR WAS NOT DISCLOSED. P10 failed to disclose O'Connor as a person having knowledge of the facts 10 relevant to the case, or as a potential expert witness. Instead, P10 has sprung the 11 O'Connor Declaration upon Google, without first allowing Google a fair opportunity 12 to depose O'Connor.2 The O'Connor Declaration should be stricken on this basis. 13 In addition, at no point does O'Connor tie his qualifications and purported 14 expertise, which involve doing work for federal law enforcement, to Google's search 15 engine or services. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 591 16 (1993) (an expert's testimony must "aid the jury in resolving a factual dispute."); see 17 also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-48 (1999) (expert must have 18 some form of specialized knowledge). He identifies no specialized knowledge or 19 expertise whatsoever that would qualify him to opine on the subjects set forth in his 20 21 22 23 24 25 26 27 28 01980.51320/3370210.2 The O'Connor Declaration is the same declaration, with the same signature date, that P10 submitted from Mr. O'Connor in support of its opposition to Google's DMCA Motions (Dkt No. 480), 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. 514. 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 Mr. O'Connor since his first declaration was filed in August 2009. On July 27, 2009, (footnote continued) GOOGLE INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF DAVID O'CONNOR 1 -1- 1 declaration, including (1) the inner workings of search engine technology, and (2) 2 what information Google would or would not need for its internal processing team 3 to locate and suppress or take down alleged infringing links or content. Because 4 O'Connor plainly lacks the necessary qualifications to testify as an expert on these 5 subjects, his declaration should be disregarded, or in the alternative, his testimony 6 should be accorded no evidentiary weight. 7 II. 8 9 PORTIONS OF THE O'CONNOR DECLARATION SHOULD BE DISREGARDED. The O'Connor Declaration should be disregarded for purposes of Perfect 10's 10 Second PI Motion for the additional reason that it is inadmissible under the Federal 11 Rules of Evidence. 12 The Federal Rules of Evidence apply to evidence submitted to the Court on 13 motion practice. Fed. R. Evid. 101 (Rules of Evidence apply to all proceedings in 14 the courts of the United States); Fed. R. Evid. 1101 (listing exceptions to Rule 101). 15 While courts have some discretion to consider inadmissible evidence when a 16 preliminary injunction is urgently needed to prevent irreparable harm before a full 17 resolution on the merits is possible, courts routinely decline to consider, or afford 18 any weight to, such inadmissible evidence in appropriate circumstances. See 19 Beijing Tong Ren Tang (USA) Corp. v. TRT USA Corp., --- F.Supp.2d ----, 2009 20 WL 5108580, at *3 (N.D. Cal. Dec. 18, 2009) (upholding evidentiary objections and 21 denying preliminary injunction); U.S. v. Guess, 2004 WL 3314940, at *4 (S.D. Cal. 22 Dec. 15, 2004) ("conditional inferences, innuendo, and even strong suspicions do 23 not satisfy [the movant's] burden"); Kitsap Physicians Service v. Washington Dental 24 Service, 671 F.Supp. 1267, 1269 (W.D. Wa. 1987) (refusing to consider affidavits 25 "that would have been inadmissible under the Federal Rules of Evidence" and 26 27 Google filed a motion seeking leave to take additional depositions (Dkt No. 471). 28 (footnote continued) 01980.51320/3370210.2 GOOGLE INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF DAVID O'CONNOR -2- 1 denying preliminary injunction). Because P10 has had nearly six years to obtain 2 evidence regarding its Second PI Motion, it is particularly appropriate to hold P10's 3 evidence to the usual standards of admissibility for motion practice. 4 Such evidence must be relevant to the claims and defenses of the case. Fed. Testimonial evidence must be based on the personal 5 R. Evid. 401; 403; Beijing Tong Ren Tang, 2009 WL 5108580, at *3 (striking 6 irrelevant evidence). 7 knowledge of the witness offering the evidence. Fed. R. Evid. 602. Testimony 8 requiring scientific, technical, or other specialized knowledge may be given only by 9 an expert witness with the requisite knowledge, skill, experience, training, or 10 education, and opinion testimony is not permitted of a lay person. Fed. R. Evid. 11 701, 702. The O'Connor Declaration fails to meet one or more of these criteria, as 12 set forth below. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 01980.51320/3370210.2 Proffered Evidence 1. Google's Objection O'Connor Decl., at ¶ 3 ("In my Fed. R. Evid. 401, 402, 403, 602, 701, opinion, I have sufficient expertise in 702 computer science and the Internet to The determine portions of whether the notices attached statement is irrelevant, various argumentative, conclusory, speculative as and lacks foundation. Mr. O'Connor's regarding are his irrelevant own and Exhibit 1 would provide a search opinions engine such as Google with enough qualifications information to locate the infringing unsubstantiated. image(s) or link(s).") Mr. O'Connor has never been disclosed by P10 as an expert in this case, nor does he appear to have the necessary expertise to The Court has not yet ruled on Google's motion. -3- GOOGLE INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF DAVID O'CONNOR 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 DATED: March 16, 2010 23 24 25 26 27 28 01980.51320/3370210.2 provide such expert testimony. 2. O'Connor Decl., at ¶¶ 4-6 and Ex. Fed. R. Evid. 401, 402, 403, 602, 701, 1 702 The statements are irrelevant, argumentative, and improper opinion testimony. opinions Mr. O'Connor's personal regarding methods for processing DMCA notices have no bearing on P10's probability of success on the merits. This evidence is also speculative, lacks foundation, and is not within the witness's personal knowledge. The statements further the document mischaracterize referenced, and Exhibit 1 is not properly authenticated. Mr. O'Connor has never been disclosed by P10 as an expert in this case, nor does he appear to have the necessary expertise to provide such expert testimony. QUINN EMANUEL URQUHART & SULLIVAN, LLP By Michael Zeller Rachel Herrick Kassabian Attorneys for Defendant GOOGLE INC. GOOGLE INC.'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF DAVID O'CONNOR -4-

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