Sony Computer Entertainment America LLC v. Hotz et al

Filing 112

OBJECTIONS to re 105 Declaration in Opposition, 104 Declaration in Opposition,,, 107 Declaration in Opposition, Objections to Bricker Declaration by George Hotz. (Attachments: # 1 Objections to Law Dec, # 2 Objections to Liu Dec, # 3 Objections to Miller Dec, # 4 Objections to Pierce Dec)(Kellar, Stewart) (Filed on 3/25/2011)

Sony Computer Entertainment America LLC v. Hotz et al

Doc. 112 Att. 4

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STEWART KELLAR (SBN 267747) [e-mail] E-ttorney at Law 148 Townsend Street, Suite 2 San Francisco, California 94107 Telephone: [phone] JACK C. PRAETZELLIS (SBN 267765) [e-mail] MBV LAW LLP 855 Front Street San Francisco, California 94111 Telephone: [phone] Facsimile: [phone] YASHA HEIDARI (Pro Hac Vice) [e-mail] HEIDARI POWER LAW GROUP LLC Post Office Box 79217 Atlanta, Georgia 30357 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant George Hotz UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

SONY COMPUTER ENTERTAINMENT AMERICA LLC, a Delaware limited liability company, Plaintiff, v. GEORGE HOTZ, et al., Defendants.

Case No. 11-cv-000167 SI DEFENDANT GEORGE HOTZ'S OBJECTIONS TO DECLARATION OF ANDREW PIERCE IN SUPPORT OF PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO DISMISS AND MOTION TO STRIKE TESTIMONY CONTAINED THEREIN Date: April 8, 2011 Time: 9:00 a.m. Place: Courtroom 10, 19th Floor

Defendant George Hotz objects to the following paragraphs of Andrew Pierce's declaration in support of plaintiff's opposition to Mr. Hotz's motion to dismiss. Moreover, Mr. Peirce's Declaration was late filed. SCEA must play by the rules, just like all other litigants. Opposition to Mr. Hotz' Motion to Dismiss was due on March 18, 2011, which pursuant to F.R.C.P.
OBJECTIONS TO PIERCE DECLARATION (No. 11-CV-00167-SI) Dockets.Justia.com

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Rule 6.4 and Local Rules 7-3, required all supporting affidavits and declarations to be filed on March 18, 2011. The Peirce Declaration was filed on March 19, 2011. This is cause to strike it in its entirety. Federal Rules of Evidence, Rule ("FRE") 402. Relevancy. The whole of Mr. Pierce's declaration is irrelevant. The fact of persons accessing Mr. Hotz's website who, according to the unknown, undescribed, and unverified service "IP2Location software" may have been located in California is insufficient for California to exercise personal jurisdiction over Mr. Hotz. A defendant "'will not be haled into a jurisdiction solely as a result of random, fortuitous, or attenuated contacts, or of the unilateral activity of another party or third person.'" Doe v. American Nat. Red Cross, 112 F.3d 1048, 1051 (9th Cir. 1997) (quoting Burger King v. Rudzewicz, 471 U.S. 462, 475 (1985)). FRE 403. Confusion of issues, misleading. Technical information is presented in a confusing and misleading manner. Does not specify who the actor is or who "we" refers to. FRE 602. No foundation. No foundation for "IP2Location software." What it is, how it works, what error tolerance it has. FRE 702. Not qualified as an expert. Declarant was never qualified as any sort of expert. Paragraph 1 is wholly inadequate to qualify Mr. Pierce as any sort of expert. Further, declarant provided no technical information relating to the manner in which he conducted the task described. FRE 602. Lack of personal knowledge. Unclear who performed actions and declaration does not state how declarant had personal knowledge. FRE 1001-1008. Best evidence. Declarant simply testifies to contents of contract. The documents should speak for themselves. FRE 402. Not relevant. FRE 403. Confusion of issues, misleading. Technical information is presented in a confusing and misleading manner. Does not specify who the actor is or who "we" refers to.

Paragraph 2. Entire paragraph.

Paragraphs 3-4. Entire paragraphs.

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OBJECTIONS TO PIERCE DECLARATION (NO. 11-CV-000167 SI)

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Exhibit A Paragraph 6. Entire paragraph. Paragraph 5. Entire paragraph.

FRE 602. Lack of personal knowledge. Unclear who performed actions and declaration does not state how declarant had personal knowledge. FRE 702. Not qualified as an expert. FRE 402. Not relevant. FRE 702. Not qualified as an expert. FRE 602. No foundation. FRE 602. Lack of personal knowledge. Unclear who performed actions and declaration does not state how declarant had personal knowledge. FRE 403. Misleading. Logging HTTP codes 200, 206 and 304 as "hits" for the "GET /jailbreak.zip" command. HTTP code 200 is the only code that could even theoretically be relevant. Code 206 means: "Partial Content" which is not itself a complete download. Therefore, no complete download occurred and the end user cannot be said to have received the file. Code 304 is even more questionable as it only indicates that the file requested to be gotten was "Not Modified" and doesn't say anything about the success or failure of the GET request. Stamos Dec. ¶ 11. Confusion of issues. Technical information is presented in a confusing manner. FRE 602. No foundation. FRE 602. Lack of personal knowledge. Unclear who performed actions and declaration does not state how declarant had personal knowledge. FRE 402. Not relevant. Declarant attached Exhibit A, a "sample page" his company's analysis to the declaration. The sample page is redacted and filed under seal. FRE 403. Confusion of issues, misleading. Technical information is presented in a confusing and misleading manner. Information is prejudicial as presented. FRE 702. Not qualified as an expert. FRE 602. No foundation. FRE 602. Lack of personal knowledge. Unclear who performed actions and declaration does not state how declarant had personal know-

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OBJECTIONS TO PIERCE DECLARATION (NO. 11-CV-000167 SI)

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By

ledge. FRE 402. Not relevant. The document is redacted and filed under seal. FRE 403. Confusion of issues, misleading. Technical information is presented in a confusing and misleading manner. Information is prejudicial as presented. FRE 702. Not qualified as an expert. For the foregoing reasons, including SCEA's untimely filing, Plaintiff respectfully requests that the Court strike the declaration in its entirety. In the event this Court chooses not to strike the declaration in its entirety, Plaintiff respectfully requests this Court to strike the testimony referred to above. Dated: March 24, 2011. MBV LAW LLP

/s/ Stewart Kellar Stewart Kellar Attorneys for Defendant George Hotz

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OBJECTIONS TO PIERCE DECLARATION (NO. 11-CV-000167 SI)