Perfect 10 Inc v. Google Inc et al

Filing 842

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

1 QUINN EMANUEL URQUHART & SULLIVAN LLP Michael T. Zeller (Bar No. 196417) 2 [e-mail] 865 South Figueroa Street, 10th Floor 3 Los Angeles, California 90017-2543 Telephone: [phone] Facsimile: [phone] Charles K. Verhoeven (Bar No. 170151) 5 [e-mail] 50 California Street, 22nd Floor 6 San Francisco, California 94111 Rachel Herrick Kassabian (Bar No. 191060) 7 [e-mail] 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 REPLY DECLARATION OF JEFFREY N. MAUSNER IN SUPPORT OF PERFECT 10'S SECOND MOTION FOR PRELIMINARY INJUNCTION AGAINST DEFENDANT GOOGLE INC. 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'S OBJECTIONS TO THE REPLY DECLARATION OF JEFFREY N. MAUSNER

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Google submits the following objections to the Reply Declaration of Jeffrey

2 Mausner ("Mausner Reply Declaration"), submitted in support of Perfect 10's ("P10") 3 Second Motion for Preliminary Injunction Against Google Inc. ("Second PI 4 Motion"). The Mausner Reply Declaration is objectionable for several reasons, and 5 should be disregarded or accorded little or no weight in the determination of Perfect 6 10's Second PI Motion. 7 I. 8 9 10 THE PORTIONS OF THE MAUSNER REPLY DECLARATION CONTAINING NEW EVIDENCE THAT IS NOT RESPONSIVE TO GOOGLE'S OPPOSITION PAPERS SHOULD BE STRICKEN. The Mausner Reply Declaration contains a significant amount of evidence that

11 (1) was not included in P10's moving papers, and (2) is not responsive to the 12 arguments and authorities in Google's Opposition to P10's Second PI Motion. For 13 example, the Mausner Reply Declaration includes testimony and documents 14 regarding: 15 16 17 18 19 20 21 22 The Viacom v. YouTube litigation (¶ 2 and Ex. Q); P10's unfounded allegations of discovery misconduct by Google (which allegations previously have been rejected by Judge Hillman) (¶ 2); P10's improper demand to re-depose Google witness Shantal Rands Poovala (¶ 6); and Additional alleged copyright registration materials located on a hard drive attached as an exhibit to the Zada Reply Declaration (¶ 3). This newly-submitted evidence should be disregarded. The Court's April 25,

23 2007 Scheduling and Case Management Order ("Case Management Order") clearly 24 informs P10 of the consequences of including such new evidence in its reply papers: 25 "Reply papers shall be limited to argument and/or authorities responsive to the 26 opposition papers. The Court will ignore new matter that was improperly 27 introduced." Case Management Order at 4:20-22; see also Zamani v. Carnes, 491 28 F.3d 990, 997 (9th Cir. 2007) ("The district court need not consider arguments raised
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1 for the first time in a reply brief."). Because Google has no opportunity to fully and 2 fairly respond to this new evidence, Google would be prejudiced were the Court to 3 consider it. Accordingly, the Court should disregard P10's new evidence introduced 4 for the first time in the Mausner Reply Declaration. Alternatively, should the Court 5 elect to consider P10's new reply evidence, Google respectfully requests the 6 opportunity to file a sur-reply memorandum to address it. 7 II. 8 9 10 THE PORTIONS OF THE MAUSNER REPLY DECLARATION CONTAINING LEGAL ARGUMENT (AS OPPOSED TO EVIDENCE) SHOULD BE STRICKEN. The purpose of a declaration is to submit evidence; it is improper to use a

11 declaration to present legal argument from an attorney. See, e.g., Silver v. Executive 12 Car Leasing Long-Term Disability Plan, 466 F.3d 727, 731 n.2 (9th Cir. 2006) 13 (affirming district court's exclusion of a declaration from plaintiff's counsel because it 14 "contains legal argument that was not appropriate for a declaration, as well as 15 analysis of complex [facts] as to which [plaintiff's] attorney would not have been 16 competent to testify"); Lira v. Cate, 2010 WL 727979, at *4 n.5 (N.D. Cal. Feb. 26, 17 2010) (striking portions of declaration containing legal argument). 18 20 21 22 23 24 25 26 27 28
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Here, the Mausner Reply Declaration consists largely of legal argument, not "Google's motions for summary judgment cannot be decided until Google produces all of the relevant documents. In the meantime, a preliminary injunction should be in place to stop Google from contributing to infringement of Perfect 10's copyrighted images." (Mausner Reply Decl. at 4:14-5:3); "Google's submission of all these pleadings in opposing the PI Motion violates Local Rule 11-6, which states that memoranda of points and authorities in connection with a motion may not exceed 25 pages. Accordingly, Perfect 10 requests that the Court disregard or strike the eight additional briefs that Google has submitted, along with Google's three undisputed statements of facts
GOOGLE'S OBJECTIONS TO THE REPLY DECLARATION OF JEFFREY N. MAUSNER

19 actual evidence. For example, Mausner purports to "declare" that:

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and other supporting documents. ... Perfect 10 believes it is improper for Google to submit pleadings relating to other matters in opposition to this motion ...." (Mausner Reply Decl. at 6:25-7:12). Such legal argument is inappropriate for submission within an attorney's

4 See also Mausner Reply Decl. at 6:1-17; 7:23-8:4. 6 declaration, and may only be made in P10's memorandum, which is already 25 pages 7 long. All such legal argument in the Mausner Reply Declaration should be stricken. 8 See Silver, 466 F.3d at 731 n.2; L.R. 11-6 ("No memorandum of points and 9 authorities, pre-trial brief, trial brief, or post-trial brief shall exceed 25 pages"). 10 III. 11 12 PORTIONS OF THE MAUSNER REPLY DECLARATION ARE INADMISSIBLE AND SHOULD BE DISREGARDED. The Mausner Reply Declaration should be disregarded for purposes of Perfect

13 10's Second PI Motion because it is inadmissible under the Federal Rules of 14 Evidence. The Federal Rules of Evidence apply to evidence submitted to the Court 15 on motion practice. Fed. R. Evid. 101 (Rules of Evidence apply to all proceedings in 16 the courts of the United States); Fed. R. Evid. 1101 (listing exceptions to Rule 101). 17 While courts have some discretion to consider inadmissible evidence when a 18 preliminary injunction is urgently needed to prevent irreparable harm before a full 19 resolution on the merits is possible, courts routinely decline to consider, or afford any 20 weight to, such inadmissible evidence in appropriate circumstances. See Beijing 21 Tong Ren Tang (USA) Corp. v. TRT USA Corp., --- F.Supp.2d ----, 2009 WL 22 5108580, at *3 (N.D. Cal. Dec. 18, 2009) (upholding evidentiary objections and 23 denying preliminary injunction); U.S. v. Guess, 2004 WL 3314940, at *4 (S.D. Cal. 24 Dec. 15, 2004) ("conditional inferences, innuendo, and even strong suspicions do not 25 satisfy [the movant's] burden"); Kitsap Physicians Service v. Washington Dental 26 Service, 671 F.Supp. 1267, 1269 (W.D. Wa. 1987) (refusing to consider affidavits 27 "that would have been inadmissible under the Federal Rules of Evidence" and 28 denying preliminary injunction). Because P10 has had nearly six years to obtain
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1 evidence regarding its Second PI Motion, it is particularly appropriate to hold P10's 2 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. R. 4 Evid. 401; 403; Beijing Tong Ren Tang, 2009 WL 5108580, at *3 (striking irrelevant 5 evidence). Testimonial evidence must be based on the personal knowledge of the 6 witness offering the evidence. Fed. R. Evid. 602. Testimony requiring scientific, 7 technical, or other specialized knowledge may be given only by an expert witness 8 with the requisite knowledge, skill, experience, training, or education, and opinion 9 testimony is not permitted of a lay person. Fed. R. Evid. 701, 702. The Mausner 10 Reply Declaration fails to meet one or more of these criteria, as set forth below. 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. Exh. Q

Objection 801-804, 1002, Case Management Order at 4:20-22 The statements and exhibit are argumentative, irrelevant, speculative, lack foundation, do not appear to be based on the witness's personal knowledge, and constitute improper lay opinion testimony and inadmissible hearsay. Mausner's personal commentary regarding a news article, Viacom's partial summary judgment motion in the Viacom v. YouTube case, and selected emails submitted with the Viacom summary personal judgment opinions motion is argumentative and irrelevant. regarding Mausner's Google's

Mausner Reply Decl., ¶ 2 and Fed. R. Evid. 401, 402, 403, 602, 701, 702,

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alleged discovery practices and intimation that P10 may seek to revisit issues from motions P10 has previously lost before Judge Hillman in this case are irrelevant to P10's Second PI Motion. Further, P10's Second PI Motion was not based on alleged discovery violations by Google, nor was it based on the Viacom v. YouTube case, and such new evidence and claims raised for the first time on reply should be disregarded. Mausner's personal opinion

that Google's DMCA Motions "cannot be decided" until Google produces additional documents is irrelevant because, among other things, it is flatly contradicted by P10's representations and conduct in this case, including P10's declination to file a Rule 56(f) motion in opposition to Google's DMCA Motions. 497, 498. The news article is inadmissible hearsay and irrelevant. The Viacom partial summary judgment motion foundation, is inadmissible speculative, whatever and hearsay, lacking in miniscule argumentative, See Docket Nos. 495,

probative value it might have here is

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outweighed by its prejudicial nature. including involves because different the Viacom

It

also is irrelevant for numerous reasons, case parties, different

operative facts, and a Google service (YouTube) which is not at issue in P10's suit against Google. 2. Mausner Reply Decl., ¶ 3 and Fed. R. Evid. 401, 402, 403, 602, Case Ex. 9 to the Declaration of Management Order at 4:20-22 Zada in Support of Perfect 10's The statements regarding the Copyright 2nd Preliminary Injunction Registration Certificates alleged to be Motion [Dkt. No. 790] ("Zada located on the hard drive previously Decl.") and Exh. 86 to the submitted as Ex. 9 to the Zada Declaration Reply Declaration of Zada i n are irrelevant and lack foundation. Neither Support of Perfect 10's 2nd this declaration nor the Zada Declaration Preliminary Injunction M otion identify the specific location of such [Dkt. No. 826] ("Zada Reply documents on the hard drive, and the Decl.") . statements do not provide a basis for Mausner's personal knowledge regarding the previously undisclosed contents of the exhibit to another witness's declaration. Furthermore, the registration certificates allegedly enclosed on the referenced exhibits to the Zada Declaration and the Zada Reply Declaration are irrelevant because they have not been connected to any specific infringements alleged by P10.

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Mausner's

belated

identification

of

materials submitted by other declarants also violates this Court's Case Management Order. 3. Mausner Reply Decl., ¶ 4 Fed. R. Evid. 401, 402, 403, 602, 701, 1002 The statements are argumentative (for example, what Mausner personally thinks is "absolutely outrageous" does not advance this case or assist the Court in any way). The statements are also speculative, irrelevant, and improper opinion testimony. For example, Mausner's personal opinions (including those regarding the alleged similarity of the "Adobe style notices,") and Mausner's personal beliefs and opinions regarding Google's DMCA

procedures for forwarding DMCA notices to Chilling Effects have no bearing on P10's probability of success on its copyright claims. no basis of his These statements also alleged actions. knowledge These

lack foundation because Mausner identifies regarding Google's

statements also violate the Best Evidence Rule, because the referenced DMCA Notices themselves are the best evidence of

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their contents. Mausner's personal opinion that a DMCA notice consisting of an entire hard drive or DVD (like P10's December 2005 and 2007 DMCA notices) is the same type of notice as a single emailed PDF file (like P10's late 2009 DMCA notices) is not the best evidence of the contents or format of those notices. 4. Mausner Reply Decl., at ¶ 5 Fed. R. Evid. 401, 402, 403, 602, 701 The statements are argumentative, irrelevant, and improper opinion testimony. Mausner's personal opinions (and his description of the "opinions" of his corporate client P10) regarding the propriety of Google's submitted exhibits, and his personal interpretation of Local Rule 11-6, have no bearing on P10's probability of success on its claims. 5. Mausner Reply Decl., at ¶ 6 Fed. R. Evid. 401, 402, 403, 602, 701, 702, and Ex. S. ("Although Perfect 1001, Case Management Order at 4:20-22 10 took a Rule 30(b)(6) The statements and are constitute irrelevant, the improper Mausner's deposition in which Ms. Poovala argumentative, testified for approximately 3 documents, hours in 2008, before Ms. opinion mischaracterize

testimony.

Poovala submitted these two argumentative allegations regarding P10's declarations, Perfect 10 has been improper attempts to re-depose a Google trying unsuccessfully to take Ms. witness whom it has already deposed,

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Poovala's

deposition

since Shantal Rands Poovala, have no bearing on

October 2009. Perfect 10 has P10's probability of success on its claims. continuously met-and-conferred Further, P10's Second PI Motion was not with Google regarding this issue based on alleged discovery violations by for months, to no avail. Google, and such new evidence and claims Submitted under seal as Exhibit raised for the first time on reply should be S are true and correct copies of disregarded. correspondence between Perfect Additionally, multiple emails reproduced 10's attorneys (Valerie Kincaid within Exhibit S may not accurately reflect and me) and Google's attorneys the contents of the original data, as they regarding this issue. As set forth reference messages included "below" that in Exhibit S, Google still will not may have been repositioned or not included provide a deposition date or within the exhibit. See Ex. S at 3, 11, 18, produce Ms. Poovala's 20, 21, 22, 23, 24. documents, after five months of meeting and conferring.") QUINN EMANUEL URQUHART & SULLIVAN, LLP By Michael Zeller Rachel Herrick Kassabian Attorneys for Defendant GOOGLE INC.

18 DATED: March 31, 2010 19 20 21 22 23 24 25 26 27 28
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