Louis Vuitton Malletier, S.A. v. Akanoc Solutions, Inc. et al

Filing 87

EVIDENTIARY OBJECTIONS to the Holmes 79 Declaration t by Akanoc Solutions, Inc., Managed Solutions Group, Inc., Steven Chen. (Lowe, James) (Filed on 8/25/2008) Modified text on 8/26/2008 (cv, COURT STAFF).

Louis Vuitton Malletier, S.A. v. Akanoc Solutions, Inc. et al

Doc. 87

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GAUNTLETT & ASSOCIATES David A. Gauntlett (SBN 96399) James A. Lowe (SBN 214383) Brian S. Edwards (SBN 166258) 18400 Von Karman, Suite 300 Irvine, California 92612 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Attorneys for Defendants Akanoc Solutions, Inc., Managed Solutions Group, Inc. and Steve Chen

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION

LOUIS VUITTON MALLETIER, S.A., Plaintiff, vs. AKANOC SOLUTIONS, INC., et al., Defendants.

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Case No.: C 07-3952 JW Hon. James Ware DEFENDANTS' EVIDENTIARY OBJECTION TO THE HOLMES DECLARATION IN SUPPORT OF VUITTON'S OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT Date: September 8, 2008 Time: 9:00 a.m. Dept.: Courtroom 8, 4th Floor

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OBJECTION TO HOLMES DECL IN OPPOSITION TO DEFTS' MSJ

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Defendants hereby object to the Declaration of Robert Holmes ("Holmes Decl.") filed in support of Vuitton's Opposition to Defendants' Motion for Summary Judgment. Paragraph 2: Holmes' statements that he had "heard of" Defendants prior to his

investigation, and that Defendants had "a reputation" are inadmissible hearsay under Fed. R. Evid. 801. Holmes' statements about websites "hosted at IP addresses allocated to defendants", "websites selling counterfeits of other companies' goods" and references to "websites that specialize in counterfeiting as well as spam activities" are conclusions based on hearsay. Paragraph 3: Holmes' characterization of products as "suspect Louis Vuitton products" is inadmissible hearsay under Fed. R. Evid. 801. Holmes' assertion that the website was "offering suspect Louis Vuitton products" is inadmissible hearsay, as only someone with knowledge of the accuracy of the contents of a website may authenticate its contents. See Internet Specialties West, Inc. v. ISPWest, No. CV 05-3296 FMC AJWX, 2006 WL 4568796, at *2 (C.D. Cal. Sept. 19, 2006). Holmes' statement that bag4sell.com was located at IP address 204.13.66.161 is an inadmissible and unsubstantiated hearsay conclusion. Holmes' statement that he "confirmed that bag4sell.com was hosted by Akanoc Solutions, Inc. using at least three different methods of verification, including the "pinging" method" is a conclusion based on inadmissible hearsay. Holmes does not explain how he "confirmed" where bag4sell.com was hosted. Holmes does not explain the "three different methods of verification" or what the "pinging" method involves. Holmes has never offered admissible evidence of these "three different methods of verification" and has testified that the only verification documentation he has produced are "Domain Tools" printouts that are inadmissible hearsay. (Holmes Deposition 117:6-18). Holmes has previously testified that his employees typically verify the accuracy of data and to the extent that others perform these functions, Holmes' testimony about their work is inadmissible hearsay (Holmes Deposition 115:14-16). Paragraph 4: Holmes' assertion that the website was "offering suspect Louis Vuitton products" is based on inadmissible hearsay, as only someone with knowledge of the accuracy of the contents of a website may authenticate its contents. See Internet Specialties West, Inc. v. ISPWest, No. CV 05-3296 FMC AJWX, 2006 WL 4568796, at *2 (C.D. Cal. Sept. 19, 2006). Holmes'

statement that innike.com was located at IP address 205.209.165.82 is an inadmissible hearsay
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conclusion.

Holmes' statement that he "confirmed that innike.com was hosted by Managed

Solutions Group Inc. using at least three different methods of verification, including the "pinging" method" is unqualified expert opinion and inadmissible hearsay. Holmes does not explain how he "confirmed" where innike.com was hosted but he must have relied on hearsay. Holmes does not explain the "three different methods of verification" or what the "pinging" method involves or why this is reliable. Holmes has testified that the only verification documentation he has produced are "Domain Tools" printouts that are double and triple hearsay. (Holmes Deposition 117:6-18). Holmes has previously testified that his employees typically verify the accuracy of data and to the extent that these employees perform these functions, Holmes' testimony to their work is inadmissible hearsay (Holmes Deposition 115:14-16). Paragraph 5: Holmes' assertion that the website was "offering suspect Louis Vuitton

products" is based on inadmissible hearsay, as only someone with knowledge of the accuracy of the contents of a website may authenticate its contents. See Internet Specialties West, Inc. v. ISPWest, No. CV 05-3296 FMC AJWX, 2006 WL 4568796, at *2 (C.D. Cal. Sept. 19, 2006). Holmes' statement that soapparel.com was located at IP address 204.16.192.244 is an inadmissible hearsay conclusion. Holmes' statement that he "confirmed that soapparel.com was hosted by Akanoc

Solutions, Inc. using at least three different methods of verification, including the "pinging" method" is unqualified expert opinion and inadmissible hearsay. Holmes does not explain how he

"confirmed" where soapparel.com was hosted but he must have relied on hearsay. Holmes does not explain the "three different methods of verification" or what the "pinging" method involves or why this is reliable. Holmes has testified that the only verification documentation he has produced are "Domain Tools" printouts that are double and triple hearsay. (Holmes Deposition 117:6-18). Holmes has previously testified that his employees typically verify the accuracy of data and to the extent that these employees perform these functions, Holmes' testimony to their work is inadmissible hearsay (Holmes Deposition 115:14-16). Paragraph 6: Holmes' assertion that the website was "offering suspect Louis Vuitton

products" is based on inadmissible hearsay, as only someone with knowledge of the accuracy of the contents of a website may authenticate its contents. See Internet Specialties West, Inc. v. ISPWest,
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No. CV 05-3296 FMC AJWX, 2006 WL 4568796, at *2 (C.D. Cal. Sept. 19, 2006). Holmes' statement that wendy929.net was located at IP address 204.13.69.140 is an inadmissible hearsay conclusion. Holmes' statement that he "confirmed that wendy929.net was hosted by Akanoc

Solutions, Inc. using at least three different methods of verification, including the "pinging" method" is unqualified expert opinion and inadmissible hearsay. Holmes does not explain how he

"confirmed" where wendy929.net was hosted but he must have relied on hearsay. Holmes does not explain the "three different methods of verification" or what the "pinging" method involves or why this is reliable. Holmes has testified that the only verification documentation he has produced are "Domain Tools" printouts that are double and triple hearsay. (Holmes Deposition 117:6-18). Holmes has previously testified that his employees typically verify the accuracy of data and to the extent that these employees perform these functions, Holmes' testimony to their work is inadmissible hearsay (Holmes Deposition 115:14-16). Paragraph 7: Holmes' assertion that the website was "offering suspect Louis Vuitton

products" is based on inadmissible hearsay, as only someone with knowledge of the accuracy of the contents of a website may authenticate its contents. See Internet Specialties West, Inc. v. ISPWest, No. CV 05-3296 FMC AJWX, 2006 WL 4568796, at *2 (C.D. Cal. Sept. 19, 2006). Holmes' statement that famous-shop.com was located at IP address 205.209.143.93 is an inadmissible hearsay conclusion. Holmes' statement that he "confirmed that famous-shop.com was hosted by Managed Solutions Group Inc. using at least three different methods of verification, including the "pinging" method" is unqualified expert opinion and inadmissible hearsay. Holmes does not explain how he "confirmed" where famous-shop.com was hosted but he must have relied on hearsay. Holmes does not explain the "three different methods of verification" or what the "pinging" method involves or why this is reliable. Holmes has testified that the only verification documentation he has produced are "Domain Tools" printouts that are double and triple hearsay. (Holmes Deposition 117:6-18). Holmes has previously testified that his employees typically verify the accuracy of data and to the extent that these employees perform these functions, Holmes' testimony to their work is inadmissible hearsay (Holmes Deposition 115:14-16). Paragraph 8:
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Holmes' assertion that the website was "offering suspect Louis Vuitton

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products" is based on inadmissible hearsay, as only someone with knowledge of the accuracy of the contents of a website may authenticate its contents. See Internet Specialties West, Inc. v. ISPWest, No. CV 05-3296 FMC AJWX, 2006 WL 4568796, at *2 (C.D. Cal. Sept. 19, 2006). Holmes' statement that pickyourgoods.com was located at IP address 205.209.165.84 is an inadmissible hearsay conclusion. Holmes' statement that he "confirmed that pickyourgoods.com was hosted by Managed Solutions Group Inc. using at least three different methods of verification, including the "pinging" method" is unqualified expert opinion and inadmissible hearsay. Holmes does not explain how he "confirmed" where pickyourgoods.com was hosted but he must have relied on hearsay. Holmes does not explain the "three different methods of verification" or what the "pinging" method involves or why this is reliable. Holmes has testified that the only verification documentation he has produced are "Domain Tools" printouts that are double and triple hearsay. (Holmes Deposition 117:6-18). Holmes has previously testified that his employees typically verify the accuracy of data and to the extent that these employees perform these functions, Holmes' testimony to their work is inadmissible hearsay (Holmes Deposition 115:14-16). Paragraph 9: Holmes' assertion that the website was "offering suspect Louis Vuitton

products" is based on inadmissible hearsay, as only someone with knowledge of the accuracy of the contents of a website may authenticate its contents. See Internet Specialties West, Inc. v. ISPWest, No. CV 05-3296 FMC AJWX, 2006 WL 4568796, at *2 (C.D. Cal. Sept. 19, 2006). Holmes' statement that watchnreplica.net was located at IP address 66.79.176.207 is an inadmissible hearsay conclusion. Holmes' statement that he "confirmed that watchnreplica.net was hosted by Managed Solutions Group Inc. using at least three different methods of verification, including the "pinging" method" is unqualified expert opinion and inadmissible hearsay. Holmes does not explain how he "confirmed" where watchnreplica.net was hosted but he must have relied on hearsay. Holmes does not explain the "three different methods of verification" or what the "pinging" method involves or why this is reliable. Holmes has testified that the only verification documentation he has produced are "Domain Tools" printouts that are double and triple hearsay. (Holmes Deposition 117:6-18). Holmes has previously testified that his employees typically verify the accuracy of data and to the extent that these employees perform these functions, Holmes' testimony to their work is
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inadmissible hearsay (Holmes Deposition 115:14-16). Paragraph 10: Holmes' assertion that the website was "offering suspect Louis Vuitton products" is based on inadmissible hearsay, as only someone with knowledge of the accuracy of the contents of a website may authenticate its contents. See Internet Specialties West, Inc. v. ISPWest, No. CV 05-3296 FMC AJWX, 2006 WL 4568796, at *2 (C.D. Cal. Sept. 19, 2006). Holmes' statement that replica-ebags.com was located at IP address 204.16.193.146 is an inadmissible hearsay conclusion. Holmes' statement that he "confirmed that replica-ebags.com was hosted by Akanoc Solutions, Inc. using at least three different methods of verification, including the "pinging" method" is unqualified expert opinion and inadmissible hearsay. Holmes does not explain how he "confirmed" where replica-ebags.com was hosted but he must have relied on hearsay. Holmes does not explain the "three different methods of verification" or what the "pinging" method involves or why this is reliable. Holmes has testified that the only verification documentation he has produced are "Domain Tools" printouts that are double and triple hearsay. (Holmes Deposition 117:6-18). Holmes has previously testified that his employees typically verify the accuracy of data and to the extent that these employees perform these functions, Holmes' testimony to their work is inadmissible hearsay (Holmes Deposition 115:14-16). Paragraph 11: Holmes' assertion that the website was "offering suspect Louis Vuitton products" is based on inadmissible hearsay, as only someone with knowledge of the accuracy of the contents of a website may authenticate its contents. See Internet Specialties West, Inc. v. ISPWest, No. CV 05-3296 FMC AJWX, 2006 WL 4568796, at *2 (C.D. Cal. Sept. 19, 2006). Holmes' statement that watchesreplica.net was located at IP address 204.16.193.146 is an inadmissible hearsay conclusion. Holmes' statement that he "confirmed that watchesreplica.net was hosted by Akanoc Solutions, Inc. using at least three different methods of verification, including the "pinging" method" is unqualified expert opinion and inadmissible hearsay. Holmes does not explain how he "confirmed" where watchesreplica.net was hosted but he must have relied on hearsay. Holmes does not explain the "three different methods of verification" or what the "pinging" method involves or why this is reliable. Holmes has testified that the only verification documentation he has produced are "Domain Tools" printouts that are double and triple hearsay. (Holmes Deposition 117:6-18).
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Holmes has previously testified that his employees typically verify the accuracy of data and to the extent that these employees perform these functions, Holmes' testimony to their work is inadmissible hearsay (Holmes Deposition 115:14-16). Paragraph 12: Holmes' assertion that the website was "offering suspect Louis Vuitton products" is based on inadmissible hearsay, as only someone with knowledge of the accuracy of the contents of a website may authenticate its contents. See Internet Specialties West, Inc. v. ISPWest, No. CV 05-3296 FMC AJWX, 2006 WL 4568796, at *2 (C.D. Cal. Sept. 19, 2006). Holmes' statement that guccifendi.com was located at IP address 204.16.194.103 is an inadmissible hearsay conclusion. Holmes' statement that he "confirmed that guccifendi.com was hosted by Akanoc Solutions, Inc. using at least three different methods of verification, including the "pinging" method" is unqualified expert opinion and inadmissible hearsay. Holmes does not explain how he

"confirmed" where guccifendi.com was hosted but he must have relied on hearsay. Holmes does not explain the "three different methods of verification" or what the "pinging" method involves or why this is reliable. Holmes has testified that the only verification documentation he has produced are "Domain Tools" printouts that are double and triple hearsay. (Holmes Deposition 117:6-18). Holmes has previously testified that his employees typically verify the accuracy of data and to the extent that these employees perform these functions, Holmes' testimony to their work is inadmissible hearsay (Holmes Deposition 115:14-16). Paragraph 13: Holmes' assertion that the website was "offering suspect Louis Vuitton products" is based on inadmissible hearsay, as only someone with knowledge of the accuracy of the contents of a website may authenticate its contents. See Internet Specialties West, Inc. v. ISPWest, No. CV 05-3296 FMC AJWX, 2006 WL 4568796, at *2 (C.D. Cal. Sept. 19, 2006). Holmes' statement that luxury2us.com was located at IP address 204.16.193.105 is an inadmissible hearsay conclusion. Holmes' statement that he "confirmed that luxury2us.com was hosted by Akanoc Solutions, Inc. using at least three different methods of verification, including the "pinging" method" is unqualified expert opinion and inadmissible hearsay. Holmes does not explain how he

"confirmed" where luxury2us.com was hosted but he must have relied on hearsay. Holmes does not explain the "three different methods of verification" or what the "pinging" method involves or why
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this is reliable. Holmes has testified that the only verification documentation he has produced are "Domain Tools" printouts that are double and triple hearsay. (Holmes Deposition 117:6-18). Holmes has previously testified that his employees typically verify the accuracy of data and to the extent that these employees perform these functions, Holmes' testimony to their work is inadmissible hearsay (Holmes Deposition 115:14-16). Paragraph 14: Holmes' assertion that the website was "offering suspect Louis Vuitton products" is based on inadmissible hearsay, as only someone with knowledge of the accuracy of the contents of a website may authenticate its contents. See Internet Specialties West, Inc. v. ISPWest, No. CV 05-3296 FMC AJWX, 2006 WL 4568796, at *2 (C.D. Cal. Sept. 19, 2006). Holmes' statement that rrgnl.com was located at IP address 205.209.180.88 is an inadmissible hearsay conclusion. Holmes' statement that he "confirmed that rrgnl.com was hosted by Managed Solutions Group Inc. using at least three different methods of verification, including the "pinging" method" is unqualified expert opinion and inadmissible hearsay. Holmes does not explain how he "confirmed" where rrgnl.com was hosted but he must have relied on hearsay. Holmes does not explain the "three different methods of verification" or what the "pinging" method involves or why this is reliable. Holmes has testified that the only verification documentation he has produced are "Domain Tools" printouts that are double and triple hearsay. (Holmes Deposition 117:6-18). Holmes has previously testified that his employees typically verify the accuracy of data and to the extent that these employees perform these functions, Holmes' testimony to their work is inadmissible hearsay (Holmes Deposition 115:14-16). Paragraph 15: Holmes' assertion that the website was "offering suspect Louis Vuitton products" is based on inadmissible hearsay, as only someone with knowledge of the accuracy of the contents of a website may authenticate its contents. See Internet Specialties West, Inc. v. ISPWest, No. CV 05-3296 FMC AJWX, 2006 WL 4568796, at *2 (C.D. Cal. Sept. 19, 2006). Holmes' statement that sunny7shoes.com was located at IP address 205.209.136.108 is an inadmissible hearsay conclusion. Holmes' statement that he "confirmed that sunny7shoes.com was hosted by Managed Solutions Group Inc. using at least three different methods of verification, including the "pinging" method" is unqualified expert opinion and inadmissible hearsay. Holmes does not explain
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how he "confirmed" where sunny7shoes.com was hosted but he must have relied on hearsay. Holmes does not explain the "three different methods of verification" or what the "pinging" method involves or why this is reliable. Holmes has testified that the only verification documentation he has produced are "Domain Tools" printouts that are double and triple hearsay. (Holmes Deposition 117:6-18). Holmes has previously testified that his employees typically verify the accuracy of data and to the extent that these employees perform these functions, Holmes' testimony to their work is inadmissible hearsay (Holmes Deposition 115:14-16). Paragraph 16: Holmes does not explain what constitutes "Reverse IP Searches" and any references to such searches are hearsay conclusions. Holmes' assertion that any website "sold suspect Louis Vuitton products" or were "hosted by one of the Defendants" are conclusions based on inadmissible hearsay. conclusions. Holmes does not explain how or what basis he has for making these

Dated:

August 25, 2008

GAUNTLETT & ASSOCIATES

By:

/s/ James A. Lowe David A. Gauntlett James A. Lowe Brian S. Edwards

Attorneys for Defendants Akanoc Solutions, Inc., Managed Solutions Group, Inc., and Steve Chen

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