Leader Technologies, Inc., v. Facebook, Inc.

Filing 86

Leader Technologies, Inc., v. Facebook, Inc.

Doc. 86

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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 LIVADKIN 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 LIVADKIN DECL IN OPPOSITION TO DEFTS' MSJ

Dockets.Justia.com

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Plaintiff hereby objects to the Declaration of Nikolay Livadkin ("Livadkin Declaration") filed in support of Vuitton's Opposition to Defendants' Motion for Summary Judgment. Paragraph 2: The statement that "a significant percentage of the overall online counterfeiting activity as it relates to the Louis Vuitton brand originates in the People's Republic of China" is not relevant to this matter under Fed. R. Evid. 401. This statement must be excluded under Fed. R. Evid. 403 because the minimal probative value of the statement is substantially outweighed by the danger of unfair prejudice. Paragraph 8: Defendants object to statements about undefined "widely accessible online records" as being vague and irrelevant. Defendants object to the extent the statement that Livadkin himself pings the websites conflicts with his prior testimony. Livadkin has previously testified that numerous employees in his office perform such activities (Livadkin Deposition 54:3-5, 71:9-14, 101:12-25). Paragraph 12: Statements that wendy929.net was hosted on a particular IP address, moved to a particular IP address, or that wendy929.net remained on a particular IP address for any period of time are inadmissible hearsay under Fed. R. Evid. 801. Any characterization of the website material being "objectionable" is vague and is hearsay because (1) Vuitton has offered no evidence to support this assertion and (2) 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). Paragraph 13: Statements that atozbrand.com was hosted on a particular IP address, moved to a particular IP address, or that atozbrand.com remained on a particular IP address for any period of time are inadmissible hearsay under Fed. R. Evid. 801. Any characterization of the website material being "objectionable" is vague and is hearsay because (1) Vuitton has offered no evidence to support this assertion and (2) 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 053296 FMC AJWX, 2006 WL 4568796, at *2 (C.D. Cal. Sept. 19, 2006). Paragraph 14: Statements that bag925.com was hosted on a particular IP address, moved to a particular IP address, or that bag925.com remained on a particular IP address for any period of time
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are inadmissible hearsay under Fed. R. Evid. 801. Any characterization of the website material being "objectionable" is vague and is hearsay because (1) Vuitton has offered no evidence to support this assertion and (2) 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). Paragraph 15: Statements that eshoes99.com was hosted on a particular IP address, moved to a particular IP address, or that eshoes99.com remained on a particular IP address for any period of time are inadmissible hearsay under Fed. R. Evid. 801. Any characterization of the website material being "objectionable" is vague and is hearsay because (1) Vuitton has offered no evidence to support this assertion and (2) 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). Paragraph 16: The statement that ape168.com was hosted on a particular IP address is inadmissible hearsay under Fed. R. Evid. 801. Any characterization of the website material being "objectionable" is vague and is hearsay because (1) Vuitton has offered no evidence to support this assertion and (2) 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). Paragraph 17: The statement referencing "websites hosted by Defendants" is a legal

conclusion and hearsay under Fed. R. Evid. 801. The reference to "an investigator acting under Louis Vuitton's direction" is vague and irrelevant because it does not identify the investigator. Any statements referring to what "we" did are vague because "we" is not defined and is hearsay. Any characterization of the website material being "counterfeit" is vague and is hearsay because Vuitton has offered no facts to support this assertion and no evidence this is within the personal knowledge of the witness. Paragraph 18: Any reference to websites "hosted by servers controlled by the ISP

defendants" and the statement that offers "remained accessible through the ISP defendants' servers" are inadmissible hearsay under Fed. R. Evid. 801 and unfounded conclusions.
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OBJECTION TO LIVADKIN DECL IN OPPOSITION TO DEFTS' MSJ

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Paragraph 19: Livadkin does not explain what constitutes "Reverse IP Searches" and any references to such searches are hearsay under Fed. R. Evid. 801. The statement that Livadkin "reviewed hundreds of websites which also sold counterfeit Louis Vuitton product while hosted by one or another of Defendants" is an unsubstantiated and improper legal conclusion apparently based on hearsay.

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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OBJECTION TO LIVADKIN DECL IN OPPOSITION TO DEFTS' MSJ