National Federation of the Blind et al v. Target Corporation

Filing 52

OBJECTIONS to , and Motion to Strike, Evidence Offered in Support of Plaintiffs' Motion for Preliminary Injunction by Target Corporation. (Naeve, Robert) (Filed on 7/18/2006)

National Federation of the Blind et al v. Target Corporation

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ROBERT A. NAEVE (CA SBN 106095) [e-mail] MORRISON & FOERSTER LLP 19900 MacArthur Blvd. Irvine, California 92612-2445 Telephone: [phone] Facsimile: [phone] DAVID F. MCDOWELL (CA SBN 125806) SARVENAZ BAHAR (CA SBN 171556) MICHAEL J. BOSTROM (CA SBN 211778) [e-mail] [e-mail] [e-mail] MORRISON & FOERSTER LLP 555 West Fifth Street, Suite 3500 Los Angeles, California 90013-1024 Telephone: [phone] Facsimile: [phone] STUART C. PLUNKETT (CA SBN 187971) [e-mail] MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant TARGET CORPORATION UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

NATIONAL FEDERATION OF THE BLIND, the NATIONAL FEDERATION OF THE BLIND OF CALIFORNIA, on behalf of their members, and Bruce F. Sexton, on behalf of himself and all others similarly situated, Plaintiffs, v. TARGET CORPORATION, Defendant.

Case No.

C06-01802 MHP

TARGET CORPORATION'S OBJECTIONS TO, AND MOTION TO STRIKE, EVIDENCE OFFERED IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION Date: Time: Jude: July 24, 2006 2:00 p.m. Hon. Marilyn Hall Patel

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Target Corporation ("Target") asserts the following objections to, and moves to strike, (1) portions of the Expert Declaration of Dr. James W. Thatcher in Support of Plaintiff's Motion for Preliminary Injunction (the "Opening Thatcher Declaration"); (2) portions of the Reply Declaration of Dr. James W. Thatcher In Support of Plaintiffs' Motion for Preliminary Injunction (the "Reply Thatcher Declaration"); (3) portions of the Reply Declaration of Bruce F. Sexton In Support of Plaintiffs' Motion for Preliminary Injunction (the "Sexton Declaration"); (4) portions of the Declaration of Yelena Trepetin (the "Trepetin Declaration"); and (5) selected deposition testimony cited in plaintiffs' reply brief. Objections to Opening Thatcher Declaration 1. In paragraphs 41 through 46 of the Opening Thatcher Declaration, Dr. Thatcher

testifies that in 2005, it was impossible for blind Internet users to complete a transaction on Target.com using only a keyboard. Target objects to and moves to strike this testimony because (1) Dr. Thatcher lacks personal knowledge as to whether it was possible for blind Internet users to complete a transaction on Target's website using only a keyboard in July of 2005 (Fed. R. Evid. 602),1 (2) Dr. Thatcher's opinion is not based upon "sufficient facts or data" (Fed. R. Evid. 702) and (3) this testimony, which pertains only to the alleged condition of Target's website in July of 2005, is not relevant to whether an injunction should issue with respect to the condition of Target's website now in 2006 (Fed. R. Evid. 401). 2. In paragraph 55 of the Opening Thatcher Declaration, Dr. Thatcher opines that a

blind user cannot "complete a purchase conveniently and confidently" on Target.com. Target objects to and moves to strike this testimony because (1) Dr. Thatcher lacks personal knowledge of whether it is possible for blind Internet users to "complete a purchase conveniently and confidently" on Target.com (Fed. R. Evid. 602); (2) Dr. Thatcher's opinion is not based upon

As explained in Target's opposition to the motion for preliminary injunction, Dr. Thatcher admitted at his deposition that he only evaluated whether Target.com complied with his own chosen "combination" of website accessibility guidelines, and that he did not evaluate whether non-compliance with his chosen guidelines rendered the website inaccessible. (Thatcher Depo. at 100:21-101:7.) Dr. Thatcher therefore has no basis to opine on how difficult it might be for a blind person to access the goods and services on Target.com.
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"sufficient facts or data" (Fed. R. Evid. 702) and (3) the terms "convenient" and "confident" are vague and ambiguous and therefore will not assist the trier of fact (Fed. R. Evid. 702). 3. In paragraph 60 of the Opening Thatcher Declaration, Dr. Thatcher testifies that

"[it] is impossible before April 6, 2006 to complete a transaction relying on keyboard interaction." Target objects to and moves to strike this testimony because Dr. Thatcher lacks personal knowledge of (a) whether it was ever impossible for blind Internet users to complete a transaction on Target.com, and (b) when it allegedly became possible for blind Internet users to complete a transaction on Target.com. (Fed. R. Evid. 602.) Target also objects to and moves to strike this testimony because Dr. Thatcher's opinion is not based upon "sufficient facts or data" (Fed. R. Evid. 702). Finally, Target objects to and moves to strike this testimony because the alleged past condition of Target.com is not relevant to whether an injunction should issue with respect to the condition of Target's website now in 2006 (Fed. R. Evid. 401). 4. In paragraph 60 of the Opening Thatcher Declaration, Dr. Thatcher testifies that

"[a]s of April 12, 2006 the website of the Target Corporation is virtually unusable by a visitor who is blind." In paragraph 61, Thatcher testifies that if his website programming suggestions are implemented, "the site will be accessible by people with visual impairments." Target objects to and moves to strike this testimony because it is beyond Thatcher's personal knowledge. (Fed. R. Evid. 602.) Target also objects to and moves to strike because Dr. Thatcher's opinion is not based upon "sufficient facts or data" (Fed. R. Evid. 702). Objections to Reply Thatcher Declaration 1. In paragraph 3 of the Reply Thatcher Declaration, Thatcher testifies that "[i]n July

of 2005 it was impossible to complete a transaction using only the keyboard." Dr. Thatcher says the same thing in paragraph 4. Target objects to and moves to strike this testimony because (1) Dr. Thatcher lacks personal knowledge as to whether it was possible for blind Internet users to complete a transaction on Target's website using only a keyboard in July of 2005 (Fed. R. Evid. 602); (2) Dr. Thatcher's opinion is not based upon "sufficient facts or data" (Fed. R. Evid. 702); and (3) this testimony, which pertains only to the alleged condition of Target's website in July of 2005, is not relevant to whether an injunction should issue with respect to the condition of
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Target's website now in 2006 (Fed. R. Evid. 401). 2. In paragraph 3, Dr. Thatcher testifies:

As I stated in my declaration, there was a change in the Target.com web site that I detected on April 6, 2006. After that change it seem to be possible that a blind person could complete a transaction although it is still highly unlikely. There have been more changes since April 6 and I think it is more likely that a blind user could complete a transaction. But I am comfortable in saying that it is highly unlikely that a blind customer could complete a transaction on Target.com in any reasonably amount of time and for any reason other than to prove it is possible. In paragraph 5, Dr. Thatcher testifies that it is "hardly practical" for blind customers to complete a transaction on Target.com.

9 In paragraph 6, Dr. Thatcher testifies that "[i]t may be possible to ignore hundreds of 10 characters of meaningless jumble and with carefully planned searches and orchestrated JAWS 11 `find' commands a blind person can find something to purchase and even complete that purchase 12 -- but it isn't easy and it is not accessible." 13 In paragraph 7, Dr. Thatcher testifies it is "possible but very difficult" for blind customers 14 to complete a transaction on Target.com. 15 Target objects to and moves to strike all of this testimony because (1) Dr. Thatcher lacks 16 personal knowledge as to whether it is possible for blind Internet users to complete transactions 17 on Target.com, how long it would take blind Internet users to complete transactions on 18 Target.com, how difficult it is for blind Internet users to complete transaction on Target.com, and 19 the reasons blind Internet users complete transactions on Target.com (Fed. R. Evid. 602); (2) 20 these opinions are not based upon "sufficient facts or data" (Fed. R. Evid. 702); and (3) the 21 testimony is vague and ambiguous with respect to the terms "reasonable amount of time," 22 "hardly practical," "easy," and "very difficult" and therefore will not assist the trier of fact (Fed. 23 R. Evid. 702). 24 3. 25 takes blind Internet users "one to two hours" to complete a transaction on Target.com, and the 26 reason it takes one to two hours is that "Target.com is fundamentally inaccessible." Target 27 objects to and moves to strike this testimony because Dr. Thatcher provides no foundation for his 28
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In paragraph 5 of the Reply Thatcher Declaration, Dr. Thatcher suggests that it

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testimony that it would take "one to two hours" for blind Internet users to complete transactions on Target.com and this opinion is thus not based upon "sufficient facts or data" or upon personal knowledge (Fed. R. Evid. 602 & 702).2 4. In paragraph 5 of the Reply Thatcher Declaration, Dr. Thatcher testifies that "[i]f

shopping on the Web routinely took `one to two hours' internet retail stores would be out of business." Target objects to and moves to strike this testimony because (1) it is speculation (Fed. R. Evid. 602); (2) it is irrelevant because there is no evidence that it take "one to two hours" to complete a transaction on Target.com (Fed. R. Evid. 401); and (3) it is beyond the expertise of the witness (Fed. R. Evid. 702). 5. In paragraph 5 of the Reply Thatcher Declaration, Dr. Thatcher testifies it "is

extremely difficult to navigate any page because Target has done nothing to facilitate that navigation." Target objects to and moves to strike this testimony because Dr. Thatcher lacks personal knowledge as to whether it is difficult for blind Internet users to "navigate" Target's webpage (Fed. R. Evid. 602), and (2) the testimony is vague and ambiguous with respect to the terms "difficult" and "navigate" and therefore will not assist the trier of fact (Fed. R. Evid. 702). 6. In paragraph 11 of the Reply Thatcher Declaration, Dr. Thatcher testifies that if

Target's website can be used by a blind customer "it is only possible" if the customer "has remarkable persistence in trying to get from one page to another on the page." Target objects to and moves to strike this testimony because Dr. Thatcher lacks personal knowledge of how difficult it is for blind customers to use Target's website. (Fed. R. Evid. 602.) In addition, this opinion is not based upon "sufficient facts or data" (Fed. R. Evid. 702). 7. In paragraphs 1, 2, 7, 8, and 10 of the Reply Thatcher Declaration, Dr. Thatcher

repeats the same testimony offered in his Opening Declaration. Target thus objects to and moves to strike this redundant testimony as cumulative. (Fed. R. Evid. 403.)

To the extent Dr. Thatcher is referring to Suzanne Tritten's experience using Target.com, he is mischaracterizing Ms. Tritten's testimony. Ms. Tritten testified that she spent several hours exploring the various features on Target.com, not that she took hours to complete a transaction on Target.com. [27:13-28:10]
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Objections to Sexton Declaration In paragraph 1 of the Sexton Declaration, Sexton testifies that "Target.com's 1-800

number is not an adequate substitute for the independence offered by shopping on an internet site which is fully and equally accessible." In paragraph 8, Sexton testifies that "I believe that Target.com's 1-800 number is a vastly inferior substitute for full and equal access to Target.com." Target objects to and moves to strike this testimony because it constitutes a legal conclusion and is therefore improper opinion testimony offered by a lay witness (Fed. R. Evid. 701). 2. In paragraph 6 of the Sexton Declaration, Sexton testifies that "I couldn't use

Target.com like most other people would." Target objects to and moves to strike this testimony because Sexton lacks personal knowledge as to how "most other people" would use Target.com (Fed. R. Evid. 602). It is also improper opinion testimony offered by a lay witness (Fed. R. Evid. 701). Objections to Trepetin Declaration In paragraph 13, Trepetin testifies that "coupons only seem to be available online."

Target objects to and moves to strike this testimony because Trepetin lacks personal knowledge as to how and where Target Corporation makes coupons available for in-store redemption. (Fed. R. Evid. 602.) Objections to Selected Deposition Testimony Cited In Reply Brief Deposition of Charles Letourneau: 124:12-14, 128:19-129:19 (Reply Br. at 5:5),

on the grounds that Mr. Letourneau lacks personal knowledge (Fed. R. Evid. 602) and the opinion testimony is not based on "sufficient facts or data" (Fed. R. Evid. 602). 2. Deposition of Charles Letourneau: 112:19-113:7 (Reply Br. at 4:22), on the

grounds that Mr. Letourneau lacks personal knowledge (Fed. R. Evid. 602) and the opinion testimony is not based on "sufficient facts or data" (Fed. R. Evid. 602). 3. Deposition of Charles Letourneau: 20:11-17, 53:22-54:3 (Reply Br. at 4:23), on

the grounds that Mr. Letourneau lacks personal knowledge (Fed. R. Evid. 602) and the opinion testimony is not based on "sufficient facts or data" (Fed. R. Evid. 602). 4. Deposition of Charles Letourneau: 33:4-19, 57:2-58:5 (Reply Br. at 5:2) on the 5

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grounds that Mr. Letourneau lacks personal knowledge (Fed. R. Evid. 602) and the opinion testimony is not based on "sufficient facts or data" (Fed. R. Evid. 602). 5. Deposition of Charles Letourneau: 58:16-22 (Reply Br. at 5:3) on the grounds that

Mr. Letourneau lacks personal knowledge (Fed. R. Evid. 602) and the opinion testimony is not based on "sufficient facts or data" (Fed. R. Evid. 602). 6. Deposition of Suzanne Tritten: 46:18-25 (Reply Br. at 7:15) on the ground that

Ms. Tritten lacks personal knowledge (Fed. R. Evid. 602). 7. Deposition of Chris Polk: 94:1-10 (Reply Br. at 6:23 (per later-filed errata)) on the

ground that Mr. Polk lacks personal knowledge and is offering improper opinion testimony (Fed. R. Evid. 602 & 701). 8. Deposition of Gregg Bodnar: 95:16-23, 96:8-99:4, 106:15-107:23 (Reply Br. at

10:2-8) on the ground that Mr. Bodnar lacks personal knowledge (Fed. R. Evid. 602). Dated: July 18, 2006 ROBERT A. NAEVE DAVID F. MCDOWELL STUART C. PLUNKETT SARVENAZ BAHAR MICHAEL J. BOSTROM MORRISON & FOERSTER LLP

By:

/S/ Robert A. Naeve Attorneys for Defendant TARGET CORPORATION

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