McKinney v. Google, Inc. et al

Filing 57

RESPONSE to 50 objections to declarations filed by T-Mobile USA, Inc.. (Grant, James) (Filed on 9/22/2010) Modified on 9/23/2010,(counsel selected incorrect event.) (cv, COURT STAFF).

McKinney v. Google, Inc. et al

Doc. 57

1 Joseph E. Addiego III (CA SBN 169522) James C. Grant (admitted pro hac vice) 2 DAVIS WRIGHT TREMAINE LLP 505 Montgomery Street, Suite 800 3 San Francisco, CA, 94111-6533 4 Telephone: [phone] Facsimile: [phone] 5 Email: [e-mail] 6 Attorneys for Defendant T-MOBILE USA, INC. 7 8 9 10

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

DAVIS WRIGHT TREMAINE LLP

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MARY McKINNEY, Individually and on 13 behalf of all others similarly situated,
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Case No. 5:10-cv-01177-PVT T-MOBILE USA, INC.'S RESPONSE TO PLAINTIFF'S EVIDENTIARY OBJECTIONS TO DECLARATIONS Date: Time: Dept.: November 1, 2010 9:00 a.m. 8

Plaintiff, v.

16 GOOGLE INC., a Delaware corporation; HTC CORP., a Delaware corporation; and 17 T-MOBILE USA, INC., a Delaware 18 corporation, 19 20 21 22 23 24 25 26 27 28

The Honorable James S. Ware

Defendants.

T MOBILE'S RESPONSE TO PLAINTIFF'S EVIDENTIARY OBJECTIONS RE DECLARATIONS Case No. CV 10-01177 JW
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I.

INTRODUCTION

In support of its motions to compel arbitration and to dismiss (Dkt. Nos. 30, 32, and

3 38), T-Mobile submitted two declarations from T-Mobile employees, Ms. Andrea Baca and 4 Ms. Rebekah Casner. The declarations provide and describe T-Mobile's records about 5 Plaintiff Mary McKinney's account and service. In opposing T-Mobile's motions, Plaintiff 6 did not contest the substance of any of the information contained in the declarations or the 7 documents attached to the declarations. Plaintiff also did not offer any evidence of her own. 8 Plaintiff did, however, file evidentiary objections,1 objecting to each and every paragraph of 9 the supporting declarations and each exhibit attached to the declarations. 10

Plaintiff's objections are groundless. Ms. Baca and Ms. Casner provide testimony

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11 about T-Mobile's business records, which fall within the hearsay exceptions of Fed. R. Evid. 12 803(6) and 803(7). The declarants are familiar with and reviewed the relevant records and 13 therefore are competent to testify about them. The information provided ­ e.g., that Plaintiff 14 activated and renewed or extended service on her account 68 times and accepted the Terms & 15 Conditions containing the arbitration agreement each time, that she failed to opt-out of the 16 arbitration agreement, and that she did not purchase or extend service from T-Mobile when 17 she bought the Google phone from Google ­ is relevant to the pending motions. 18 19 20 21

II. ARGUMENT A. Plaintiff's Objections Should Be Rejected From the Outset Because They Are Merely a Wholesale, Generalized Attack on the Declarations.

Plaintiff's Objections repeatedly state the same objections to numerous paragraphs in Ms. Baca's and Ms. Casner's declarations, ultimately objecting to every paragraph and every
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exhibit in rote fashion. The Objections provide no specifics about how or why Plaintiff
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contends that respective paragraphs in the declarations are supposedly objectionable, except to
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cite and paraphrase provisions of the Federal Evidence Rules.
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See Evidentiary Objections to Declarations Provided In Support of T-Mobile's Motion to Compel Arbitration and Motion to Dismiss (Dkt. No. 50), referred to here as "Objections."
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Vague and generalized objections such as this can and should be rejected from the

2 outset. "It is the `burden [of] the party moving to strike the affidavit to show the 3 inadmissibility of each statement in the affidavit.'" Hardin v. Reliance Trust Co., 2006 WL 4 2850457, *1 (N.D. Ohio Sept. 29, 2006) (quoting Reddy v. Good Samaritan Hosp. & Health 5 Ctr., 137 F. Supp. 2d 948, 954 (S.D. Ohio 2001); accord AT&T v. Shared Comm'cn Servs., 6 1995 WL 555868, *3 (E.D. Pa. Sept. 14, 1995). Objections or a motion to strike should point 7 specifically to the statements in an affidavit or declaration that the movant asserts should be 8 stricken and should provide the specific reasons why. 10B C. Wright, A. Miller & M. Kane, 9 FED. PRACTICE & PROCEDURE § 2738 (2010); Perma Research & Dev. Co. v. Singer Co., 410 10 F.2d 572, 579 ("We also note that the motion to strike was much too general in that it did not

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11 specify which parts of the Chanler affidavit should be stricken and why. . . . [P]laintiff was 12 required to do more than swing its bludgeon wildly."). When a party fails to provide this 13 specificity, a Court may properly disregard the party's objections. See, e.g., Owens v. 14 Superfos A/S, 170 F. Supp. 2d 1188, 1190 n.1 (M.D. Ala. 2001) ("Defendant objected to 15 virtually every paragraph relied upon in Plaintiff's briefs . . . . [T]he form of Defendant's 16 objections is offensive."); Grady v. Illinois Bell Tel. Co., 1996 WL 473657, *5 n.5 (N.D. Ill. 17 Aug. 13, 1996) ("where a motion to strike is too general . . . the motion need not be granted" 18 (internal quotation omitted)); Reddy, 137 F. Supp. 2d at 958 & n.14; AT&T, 1995 WL 555868, 19 at *3. It should not be left to the Court to have to sift through a declaration to pick out 20 portions that may be objectionable. Ernst Seidelman Corp. v. Mollison, 10 F.R.D. 426, 428 21 (S.D. Ohio 1950). 22

Plaintiff's Objections to the declarations of Ms. Baca and Ms. Casner are a wholesale

23 onslaught, challenging the declarations "in toto" as well as each paragraph in the declarations 24 and each attached exhibit. At the same time, Plaintiff has offered no evidence to controvert 25 any of the facts in the declarations nor has she otherwise contended that any of the facts are 26 untrue. Given this, Plaintiff's Objections ring hollow. See Tickanen v. Harris & Harris, Ltd., 27 461 F. Supp. 2d 863, 868 (E.D. Wisc. 2006) (finding admissible affidavit to support motion to 28

compel arbitration, showing that plaintiffs accepted cardholder agreement containing
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1 arbitration clause, and noting, "Interestingly, although plaintiffs challenge the competency of 2 [the affiant] to proffer this evidence, plaintiffs fail to submit any personal evidence disputing 3 that they received any of the documents attached to [the] affidavit."); AT&T Corp. v. 4 Community Network Servs., Inc., 1999 WL 1267457, *5 (S.D.N.Y. Dec. 29, 1999) (finding 5 admissible declarations providing account histories as business records, and granting summary 6 judgment to plaintiff for amounts due because defendant did not offer opposing evidence but 7 merely "unsupported conjecture that the final balances due in their accounts may be wrong"). 8

Given the improper, generalized nature of Plaintiff's Objections and her failure to

9 contest or offer any opposing evidence regarding any fact stated in the declarations, the Court 10 can and should overrule the Objections, without more.

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B.

Plaintiff's Objections Should Be Rejected on Each of the Various Grounds To Which Plaintiff Alludes.

If the Court determines that it should consider Plaintiff's Objections in more detail, it will see that none has merit. Because Plaintiff repeats various types of objections verbatim,
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numerous times, the discussion that follows will address the objections by categories.
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1.
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Plaintiff's Objections re Hearsay, Fed. R. Evid. 803(6) and 803(7).

Plaintiff objects to the declarations of both Ms. Baca and Ms. Casner "in toto" on the

18 ground of hearsay. Objections Nos. 1, 40. Plaintiff does not identify any statement in either 19 declaration that she contends constitutes hearsay. Nor does she explain why she believes the 20 declarations contain hearsay, merely citing portions of Federal Rules 801 and 802 defining 21 hearsay. Id. 22

Both declarations are based on business records of T-Mobile. Ms. Baca's declaration

23 provides information from T-Mobile records for Ms. McKinney's account, including that she 24 activated five lines of service, later took upgrade offers and extended or renewed her service 25 no fewer than 63 times, received and accepted the T-Mobile Terms & Conditions containing 26 the arbitration agreement each time, did not purchase or extend service from T-Mobile when 27 she purchased the Google phone, but did later use her Google phone with her T-Mobile 28
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1 service. With her declaration, Ms. Baca also provided copies of the governing Terms & 2 Conditions, service agreements executed in stores, and materials packaged with phones sold 3 by T-Mobile. Ms. Casner's declaration addressed the process by which T-Mobile customers 4 may opt out of the arbitration agreement and noted that T-Mobile's records reflect that Ms. 5 McKinney never exercised her rights to opt out.2 6

It is well established that a corporate representative's declaration recounting or

7 providing a company's records falls within the business records exception to the hearsay rule. 8 Fed. R. Evid.803(6). For the present motion, two cases that are most directly on point 9 concerned affidavits explaining arbitration agreements. In Posern v. Prudential Securities, 10 Inc., 2004 WL 1145877, *3 (N.D. Cal. May 3, 2004), Judge Conti of this Court held that an

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11 affidavit of a Prudential representative submitting an account agreement entered into by the 12 plaintiff-investors was admissible under Rule 803(6), and he granted Prudential's motion to 13 compel arbitration based on the agreement. In Tickanen, 461 F. Supp. 2d at 867-68, the court 14 overruled hearsay objections and held that a bank representative's declaration providing and 15 explaining an arbitration agreement and notices sent to the plaintiff credit cardholders was 16 admissible. That court likewise compelled arbitration. 17

While these cases concern arbitration agreements, many other cases demonstrate that

18 declarations concerning computer-stored account records come within the business records 19 exception to the hearsay rule. See, e.g., Mora v. Harley-Davidson Credit Corp., 2009 WL 20 464465, *4 & n.1 (E.D. Cal. Feb. 24, 2009) ( "As Seaman's declaration is based on his review 21 of records maintained by HDCC in the ordinary course of business, the requirements of Fed. 22 R. Evid. 803(6) are met and the hearsay objection is overruled."); Hardin, 2006 WL 2850457, 23 at *2 ("[T]he account files upon which Contino based her testimony are RTC's business 24 records, which are admissible as evidence under the business records exception to the hearsay 25 rule under Fed. R. Evid. 803(6)."); Spector v. Experian Info. Servs. Inc., 321 F. Supp. 2d 348, 26 27 28
Because Ms. Casner's declaration concerns the lack of any arbitrationopt-out by Plaintiff, as reflected by T-Mobile's records, it falls within the portion of the business record exception set forth in Rule 803(7).
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1 352-53 (D. Conn. 2004) (declarations from bank employees regarding year-end account 2 reports and maintenance of account notes for plaintiff's account held admissible because they 3 were "statements regarding business records kept in the ordinary course of business, and 4 therefore [the] testimony and documents are admissible under Fed. R. Evid. 803(6)); AT&T 5 Corp., 1999 WL 1267457, at **4-5 (declarations submitting account histories and amounts 6 due derived from computer-stored data were admissible as business records under Rule 7 803(6); In re Memorex Telex Corp., 242 B.R. 826, 831-32 (D. Del. 1999) (call logs of contacts 8 with customers held admissible as business records); AFD Fund v. United States, 61 Fed. Cl. 9 540, 544-45 (2004) (affidavit and statement of accounts drawn from electronic records 10 admissible under Rule 803(6)).

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T-Mobile must keep records of customers' accounts, purchases, activations, service

12 plans, and service usage in order to manage and bill the accounts. Because the declarations of 13 Ms. Baca and Ms. Casner are premised on these regularly-kept business records, the 14 declarations and attached exhibits (which are likewise business records) are admissible under 15 the hearsay exceptions set forth in Rules 803(6) and 803(7). 16 17

2.

Plaintiff's Objections re Foundation, Fed. Evid. Rule 602.

Plaintiff similarly objects "in toto" to Ms. Baca's declaration on the basis that it

18 allegedly lacks foundation under Rule 602. See Objection No. 2. Plaintiff's Objections go on 19 to assert identical foundation objections to every substantive paragraph in Ms. Baca's 20 declaration and as to each of the attached exhibits, see id. Nos. 5-39, in each instance merely 21 referencing the subject of the paragraph and objecting "on the ground of lack of personal 22 knowledge," with no further explanation. Because Plaintiff's Objections are essentially 23 identical throughout, one example will suffice. Paragraph 3 of Ms. Baca's declaration states: 24 "According to T-Mobile's records, Mary McKinney originally activated two lines of T-Mobile 25 service on March 6, 2002, through an Internet dealer, InPhonic, Inc. (the `25' and `18' lines on 26 her account)." Baca Dec. ¶ 3 (footnote omitted). Plaintiff's objection is: 27 28
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This statement is objected to on the ground of lack of personal knowledge. Fed. R. Evid. 602. Ms. Baca has not established how she knows Plaintiff herself activated an account.

3 Objections, No. 5. 4

As reflected on the face of her declaration, Ms. Baca recounted what T-Mobile's

5 records of Ms. McKinney's account reflect. A corporate representative offering a declaration 6 about the contents of the corporation's business records need not have personal knowledge of 7 the activity reflected in the records. She only need be a "qualified witness," meaning that she 8 is familiar with the records kept in the ordinary course of business, has reviewed the records 9 and can attest to what they state. See 2 K. Broun, MCCORMICK ON EVIDENCE § 292 (2009) 10 ("[A]nyone with the necessary knowledge is qualified; this witness need not have firsthand

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11 knowledge of the matter reported or actually have prepared the report or observed its 12 preparation." (footnote omitted)). That a corporate representative declarant is familiar with 13 and qualified to testify about a corporation's records can be determined from the declarant's 14 position and averments about the records. See, e.g., Edwards v. Toys "R" Us, 527 F. Supp. 2d 15 1197, 1201-02 & n.5 (C.D. Cal. 2007); Mora, 2009 WL 464465, at *4 n.1 ("[Declarant] is 16 competent to speak to the account records based on his experience, position within the 17 company, access to account records, and personal knowledge based on the review he initiated 18 of [the] account data."); Johnston v. Arrow Fin. Servs., LLC, 2006 WL 2710663 (N.D. Ill. 19 Sept.15, 2006) (denying motion to strike declaration of executive assistant where he was 20 familiar with company's policies and procedures and had examined company's records 21 regarding plaintiffs); Tickanen, 461 F. Supp. 2d at 868 ("personal knowledge of a company's 22 policies can be established by virtue of a person's position"); AT&T Corp., 1999 WL 23 1267457, at *5 ("there is no requirement that the person whose first-hand knowledge was the 24 basis of the entry [in corporate records] be identified, so long as it was the business entity's 25 regular practice to get information from such a person."). 26

The declarations of Ms. Baca and Ms. Casner reflect that they are familiar with and

27 reviewed T-Mobile's records concerning Ms. McKinney's account. Ms. Baca is familiar with 28
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1 T-Mobile customer account records both as a paralegal who handles customer claims and as a 2 former Customer Care representative. Baca Dec. ¶¶ 1, 2. Ms. Casner is also a paralegal, 3 responsible for T-Mobile's process and records regarding customers who choose to opt out of 4 arbitration. Casner Dec. ¶¶ 1, 2. Contrary to Plaintiff's Objections, neither Ms. Baca nor Ms. 5 Casner must have personally witnessed Ms. McKinney's activations, renewals, or other 6 activity relating to her T-Mobile account and service. As shown above, they are both amply 7 qualified and competent to testify about T-Mobile's records regarding Ms. McKinney and her 8 account. Plaintiff's Objections regarding foundation and personal knowledge should be 9 rejected. 10

3.

Plaintiff's Objections re Expert Testimony, Fed. R. Evid. 701.

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The first two paragraphs of Ms. Baca's declaration describe her current and prior

12 positions with T-Mobile and the basis for her familiarity with customer account records. See 13 Baca Dec. ¶¶ 1, 2. Oddly, Plaintiff objects to these paragraphs on the ground that they "seek 14 to establish Ms. Baca's ability to provide lay testimony as to scientific, technical or other 15 specialized knowledge," citing Fed. R. Evid. 701. See Objections Nos. 3, 4. T-Mobile has 16 not offered Ms. Baca as an expert, and nothing in her declaration suggests anything of the sort.
3 17 Plaintiff's objections are, frankly, nonsensical.

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4.

Plaintiff's Objections re Relevance, Fed. R. Evid. 402.

Finally, Plaintiff objects to all but one of the substantive paragraphs of Ms. Baca's

20 declaration on the ground or relevance. See Objections Nos. 5-9, 11-37. Indeed, in many 21 instances, Plaintiff has objected to individual paragraphs in Ms. Baca's declaration twice on 22 relevance grounds. See id. Nos. 23-27, 29-33. Again, Plaintiff's objections are the same 23 throughout, and so one example will illustrate. Paragraph 5 of Ms. Baca's declaration 24 explains that Ms. McKinney entered into contracts with T-Mobile each time she activated 25 26 27 28
Indeed, in the same objections, Plaintiff states: "Insofar as these paragraphs are not an improper attempt to establish Ms. Jacobs as an expert, they are objected to on the ground that they are irrelevant." See Objections Nos. 3, 4 (emphasis added). T-Mobile has no idea who Ms. Jacobs is.
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1 lines of service (as reflected in T-Mobile's account records and consistent with T-Mobile 2 practices). Plaintiff's Objections assert: 3 4

These statements are objected to on the ground that they are irrelevant. Fed. R. Evid. 402. How and when Plaintiff activated her T-Mobile lines is irrelevant to the challenged misrepresentations or damage calculations.

5 Objections, No. 5 (again, Plaintiff offers rote statements of the same objection repeatedly 6 afterward, see id. Nos. 6-11, 13-37). 7

T-Mobile's motion to compel arbitration concerns, in part, Plaintiff's repeated

8 acceptance of the Terms & Conditions containing the arbitration agreement, as well as her 9 failure to opt out of the arbitration agreement, though she had ten opportunities to do so. 10 T-Mobile's motion to dismiss is premised, among other things, on the fact that Plaintiff did

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11 not purchase service or anything else from T-Mobile when she bought a Google phone from 12 Google. These are the facts explained in the declarations of Ms. Baca and Ms. Casner, based 13 on T-Mobile's account records for Plaintiff. These declarations are patently relevant, and 14 Plaintiff's objections on the basis of Rule 402 should be overruled. 15 16

III. CONCLUSION For the foregoing reasons, T-Mobile respectfully requests that the Court reject

17 Plaintiff's Objections in toto. 18 19 20 21 22 23 24 25 26 27 28
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Dated this 22nd day of September, 2010. DAVIS WRIGHT TREMAINE LLP

By:

s/ James C. Grant Joseph E. Addiego III James C. Grant

Attorneys for Defendant T-MOBILE USA, INC.