TimesLines, Inc v. Facebook, Inc.

Filing 120

MEMORANDUM by Facebook, Inc. in support of motion in limine 119 to Exclude Dr. Eli Seggev's Survey and Related Expert Report and Testimony (Attachments: # 1 Declaration of Brendan Hughes, # 2 Exhibit A, # 3 Exhibit B)(Willsey, Peter)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
TIMELINES, INC.
Plaintiff,
v.
FACEBOOK, INC.
Defendant.

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Civil Action No.: 11 CV 6867
HONORABLE JOHN W. DARRAH

MEMORANDUM IN SUPPORT OF FACEBOOK, INC.’S MOTION IN LIMINE NO.1:
TO EXCLUDE DR. ELI SEGGEV’S SURVEY AND RELATED
EXPERT REPORT AND TESTIMONY
Defendant Facebook, Inc. (“Facebook”) respectfully moves this Court in limine for an
order excluding the “likelihood of confusion” survey conducted by Dr. Eli Seggev (the “Seggev
Survey”) and his related expert report and testimony.
I.

INTRODUCTION
Dr. Seggev conducted a survey that he claims determined the extent to which Facebook’s

use of the term “timeline” in connection with its user interface resulted in a likelihood of
confusion among relevant consumers as to Plaintiff’s purported “Timelines” trademark and
Facebook. Far from demonstrating an actionable measure of consumer confusion, however, the
Seggev Survey amounts to little more than a word association game played by survey
respondents who did not represent the appropriate universe of consumers. The Seggev Survey
was poorly constructed, failed to follow basic survey principles, and was biased against
Facebook. Because the Seggev Survey is neither relevant nor scientifically reliable, Facebook
respectfully requests that this Court exclude the Seggev Survey and Dr. Seggev’s related report
and testimony under Daubert and pursuant to Federal Rules of Evidence (“Rules”) 702 and 403.
II.

BACKGROUND
Plaintiff alleges that Facebook’s use of the term “timeline” in connection with its user
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interface infringes Plaintiff’s purported trademark rights in the words “Timelines,”
“Timelines.com,” and a stylized version of “Timelines” (the “Alleged TIMELINES Marks”).
(Dkt. No. 27 (Pl. Am. Compl.), ¶ 5.) Plaintiff operates the website found at www.timelines.com,
which allows users to open accounts and begin recording events on a newly created timeline or
adding events to an existing timeline. (Id. at ¶¶ 2-3.)
Facebook is a preeminent provider of online networking services. Facebook’s social
media website at www.facebook.com allows its users to create webpages where they can post
personal information about themselves or their business in the form of pictures, text, links, video,
audio and other digital media. In September 2011, Facebook announced the introduction of a
new feature described as a “timeline,” which allowed users to record, display and share the most
memorable events in their lives along a graphical chronological line. (Dkt. No. 33 (Facebook’s
Counterclaims), ¶¶ 33-35.)
Dr. Seggev claims that the Seggev Survey was designed “to determine the extent to
which, if at all, [Facebook’s] use of the name ‘Timeline’ on its website and elsewhere results in a
likelihood of confusion among consumers between the plaintiff’s trademark, ‘Timelines’ as used
on its Timelines.com website, and Facebook.” (Declaration of Brendan J. Hughes in Support of
Defendant Facebook, Inc.’s Motion in Limine No. 1 (“Hughes Decl.”), Ex. A (Seggev Report), ¶
1.) The Seggev Survey was conducted via the Internet by participants identified from “an online
consumer panel of over 3 million members that is balanced to the United States Census.” (Id. ¶
20.) “The sample was designed to consist of adults, i.e., at least 18 years of age, equally divided
by gender.

No other restrictions were specified for [the] target population, allowing [Dr.

Seggev] to project the results to the population at large.” (Id. ¶ 25.)
As depicted below, survey participants in a test group were shown Plaintiff’s website,

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while participants in a control group where shown the same webpage except that the page name,
web address, and logo utilized the term “Timescapes” rather than “Timelines.” (Id. ¶¶ 18, 26.)
“Test”

“Control”

Respondents in both the test and control groups were first asked to “consider the name of
the webpage they just viewed”: Timelines or Timescapes. (Id. ¶ 28.) The respondents were
then asked: “Which of the following companies, if any, do you most associate this name with?
Please select all that apply.” (Id. ¶ 29.) Respondents were provided with the following possible
answers: “CNN, Facebook, Foursquare, Google+, LinkedIn, The New York Times, Twitter,
YouTube, Other (please specify), and None of the above.” (Id. at Ex. 5, p. 6.) These questions
appeared as follows:

Respondents who identified one or more companies that they most associated “Timelines” or
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“Timescapes” with were then asked to explain why they had made that association. (Id. at Ex. 5,
p. 8.) Respondents were subsequently asked to identify the social media sites with which they
maintained an account or profile, and for those respondents who identified Facebook, how often
they visited the Facebook website. (Id.)
Dr. Seggev reported that the survey demonstrated that 11% of consumers are “confused”
by Facebook’s use of the term “timeline,” based on the differential between the percentage of
survey respondents in the test group (19%) and the percentage of survey respondents in the
control group (8%) who associated the terms “Timelines” and “Timescapes,” respectively, with
Facebook. (Id. ¶ 37.) He further reported that when asked to explain why they associated the
name “Timelines” with Facebook, “most respondents identified the Timeline product on
Facebook.” (Id. ¶ 38.) Based on these results, Dr. Seggev concluded that “Facebook’s use of the
name Timeline on its website has resulted in a statistically significant likelihood of confusion
among consumers with regard to plaintiff’s Timelines mark.” (Id. ¶ 40.)
III.

ARGUMENT
The Seggev Survey is riddled with fatal flaws. First, the survey did not test for actionable

confusion under the law. Second, it did not test among the relevant universe of consumers.
Third, the survey is scientifically unreliable and prejudicial because it failed to include a proper
control, utilized confusing and biased questions, and did not prevent respondents from guessing
or looking up the “right” answer. As a result, the Seggev Survey and related testimony should be
excluded under Daubert and Rules 702 and 403.
A.

Legal Standard

In its gatekeeper function, the Court must exclude expert testimony that is irrelevant or
unreliable. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 584-87 (1993) (citing FED. R.
EVID. 702). Further, even relevant evidence may be excluded “if its probative value is
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substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury.” FED. R. EVID. 403.
The Seventh Circuit takes a three-step approach in assessing the admissibility of expert
testimony:
First, “the witness must be qualified ‘as an expert by knowledge,
skill experience, training, or education.’” Second, “the expert’s
reasoning or methodologies underlying the testimony must be
scientifically reliable.” Third, the expert’s testimony must be
relevant, that is, it must “assist the trier of fact to understand the
evidence or to determine a fact in issue.”
Competitive Edge, Inc. v. Staples, Inc., 763 F. Supp. 2d 997, 1007 (N.D. Ill. 2010) (citing Ervin
v. Johnson & Johnson, Inc., 492 F.3d 901, 904 (7th Cir. 2009)). Without conceding the first
factor regarding Dr. Seggev’s qualifications, the Seggev Survey and related report and testimony
are neither scientifically reliable nor relevant.
B.

The Court Should Exclude the Seggev Survey Because Its Findings Are
Irrelevant to a Determination of a Likelihood of Confusion.

A survey is irrelevant and must be excluded if it amounts to an “inaccurate restatement of
the issue [in the case], lest the survey findings inject confusion or inappropriate definitions into
evidence, confounding rather than assisting the jury.” J & J Snack Foods Corp. v. Earthgrains
Co., 220 F. Supp. 2d 358, 370 (D.N.J. 2002); see also Masters v. Hesston Corp., 291 F.3d 985,
991 (7th Cir. 2002) (explaining that expert testimony is irrelevant if it does not help the trier of
fact in understanding the evidence or in determining a fact at issue). Despite Dr. Seggev’s
claimed objective –– “to determine whether there is a likelihood of confusion among consumers
between the plaintiff’s Timelines trademark and Facebook’s use of the name Timeline on its
website and elsewhere” (Hughes Decl., Ex. A at ¶ 15) –– his survey did not test for confusion
actionable under the law, nor did it test among the relevant universe of consumers.

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1.

Dr. Seggev’s Untested Methodology Failed to Test for Actionable
Consumer Confusion.

The crux of any trademark infringement case is confusion as to the source, origin,
sponsorship, or approval of goods or services (see Seventh Circuit Pattern Jury Instructions
13.1.2, comment 2), whether such confusion is “forward” or “reverse” confusion. See 15 U.S.C.
§ 1114; Sands, Taylor & Wood Co. v. The Quaker Oats Co., 978 F.2d 947, 957 (7th Cir. 1992).
Forward confusion occurs “when customers mistakenly think that the junior user’s goods or
services are from the same source as or are connected with the senior user’s goods or services.”
Id. Reverse confusion, on the other hand, “occurs when a large junior user saturates the market
with a trademark similar or identical to that of a smaller, senior user. In such a case … the senior
user is injured because the public comes to assume that the senior user’s products are really the
junior user’s or that the former has become somehow connected to the latter.” Id.
Plaintiff alleges both types of confusion in its amended complaint. (Dkt. No. 27, ¶¶ 3952.) Therefore, to be admissible, the Seggev Survey must assist the trier of fact in determining
whether Facebook used the term “timeline” in a manner that is likely to cause confusion,
mistake, or deception as to the source, origin, sponsorship, or approval of Facebook’s services
(forward confusion) or Plaintiff’s services (reverse confusion). (See Seventh Circuit Pattern Jury
Instructions 13.1.2, comment 2.)
The Seggev Survey fails to do either, testing only for association of the word “timeline”
with Facebook, rather than an association of the two parties’ websites or any other services
offered by the parties. The central question in Dr. Seggev’s survey includes an image of the
stylized version of the alleged TIMELINES Mark and asks: “Which of the following companies,
if any, do you most associate this name with? Please select all that apply.” (Hughes Decl., Ex.
A at Ex. 5, p. 6 (emphasis added).) In his deposition Dr. Seggev confirmed that the purpose of
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the survey was “to find out what are the entities that consumers associate with this word,
‘timelines.’” (Hughes Decl., Ex. B (Seggev Depo) at 124:21-24.) He acknowledged, however,
that his survey did not test for an association between the Timelines.com website and the
Facebook website, nor for confusion as to the source of the services offered by either party. (Id.
at 131:8 – 132:24.) Specifically, Dr. Seggev testified as follows:
Q.

…you believe that the results of your survey showed an association
between the word “Timelines” and Facebook and not an
association between the Timelines.com website and the Facebook
website or the source of the Timelines website and Facebook. You
were focused on association between the word and Facebook?

A.

As the question reads, which of the following, and so on, do you
associate this name with, which is Timelines.

Q.

So the answer is yes?

A.

Yes.

(Id. at 132:12-24.)
Dr. Seggev could offer no authority for using a word association test over available
accepted methodologies for testing likelihood of consumer confusion. Dr. Seggev himself had
never before used this type of question to test for a likelihood of confusion. (Id. at 137:3138:16.) He also testified that he is not aware of any case in which such a survey methodology
was relied upon. (Id.) This is not surprising given that the mere association of a word with a
company is irrelevant to an assessment of likelihood of confusion as to the source, origin,
sponsorship, or approval of a junior user’s services (forward confusion) or a senior user’s
services (reverse confusion). With nothing more than evidence that a relative handful of survey
respondents may somehow associate the word “timeline” with Facebook, Dr. Seggev leaps to the
unsupported conclusion that Facebook’s use of the term “timeline” has resulted in an actionable
likelihood of confusion: “The results of this study confirm that Facebook’s use of the name
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Timeline on its website has resulted in a statistically significant likelihood of confusion among
consumers with regard to the plaintiff’s Timelines mark.” (Hughes Decl., Ex. A at ¶ 40.)
Dr. Seggev’s conclusion rests on an inaccurate interpretation of the law, rendering his
survey and related testimony irrelevant and unreliable. Thus, the Court should exclude such
“evidence” under Rule 702 and Daubert. The Court should also exclude such “evidence” under
Rule 403, as it will prejudice Facebook by misleading the jury into conflating the concepts of
name association and an actionable likelihood of consumer confusion.
2.

Dr. Seggev Failed to Survey the Proper Universe of Consumers.

The Seggev Survey also failed to survey the proper universe, which, according to Dr.
Seggev himself, is “rule number one.” (Hughes Decl., Ex. B at 73:5-11.) A proper universe is
“that segment of the population whose perceptions and state of mind are relevant to the issues in
the case. A survey of the wrong ‘universe’ will be of little probative value in litigation.” Citizens
Fin. Grp. v. Citizens Nat'l Bank, 383 F.3d 110, 118-19 (3d Cir. 2004) (finding a survey fatally
flawed because it had an improper universe as to geographic location) (internal citations
omitted); Competitive Edge, Inc., 763 F. Supp. 2d at 1008 (citing Spraying System. Co., 975 F.2d
at 394 and Scott Fetzer Co. v. House of Vacuums, Inc., 381 F.3d 477, 487-88 (5th Cir. 2004)
(survey relevance was “greatly harmed” by the failure to focus the survey on the consumers in
the market at issue in the case); J & J Snack Foods Corp., 220 F. Supp. 2d at 370 (excluding
survey from evidence because improper universe did not represent potential consumers); Weight
Watchers Int'l. Inc. v. Stouffer Corp., 744 F. Supp. 1259, 1273 (S.D.N.Y. 1990) (finding that
survey had an impermissibly broad universe as respondents were not properly screened for being
in the relevant market). An improperly selected universe of participants leads to misleading
analysis and conclusions, and a jury that is likewise mislead. Citizens Fin. Grp., 383 F.3d at 120
at 120 (citation omitted) (“If the universe is skewed, then the conclusion will similarly be
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skewed. If an expert, a person with special knowledge and expertise, testifies as to the skewed
results, a jury is likely to give special weight to the skewed conclusion.”).
The appropriate universe for a survey is defined by the type of confusion being tested.
For forward confusion, “the proper universe to survey is the potential buyers of the junior user’s
good or services;” however, for reverse confusion, the proper universe is the senior user’s
customer base. J. Thomas McCarthy, 6 McCarthy on Trademark and Unfair Competition §
32:159 (4th ed. 2012) (emphasis added); Custom Vehicles, Inc. v. Forest River, Inc., 476 F.3d
481, 484 (7th Cir. 2007). Dr. Seggev testified that his survey was designed to test “forward
confusion” (Hughes Decl., Ex. B at 113:10-13). If that was the case, the proper universe for the
Seggev Survey should have been Facebook’s customer base. On the other hand, by showing the
webpage of Plaintiff (i.e., the senior user) as the stimulus and asking respondents to consider the
“name” of that webpage, it appears that Dr. Seggev actually attempted to test for a likelihood of
reverse confusion. In that case, the proper universe should have been Plaintiff’s customer base.
Dr. Seggev’s survey sample failed in either case; it targeted neither consumers who
would use Plaintiff’s services,1 nor potential users of Facebook. The Seggev Report explains
that, “The sample was designed to consist of adults, i.e., at least 18 years of age, equally divided
by gender. No other restrictions were specified for our target population, allowing us to project
the results to the population at large.” (Hughes Decl., Ex. A at ¶ 25.) Dr. Seggev made no effort
to obtain information from Plaintiff regarding the characteristics of its existing subscribers or
intended future audience. (Hughes Decl., Ex. B at 192:8-20.) Nor did the survey pre-screen
potential respondents by asking them whether they use the services of either Party, or similar
services (and then rejecting those who did not). It is therefore impossible to know whether or not

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In fact, it appears the services offered by Plaintiff on its website appeal to such a niche market that it is likely that
none of the survey respondents were Plaintiff’s actual or intended customer base.

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any of the survey respondents were part of the correct customer base for testing either forward or
reverse confusion. As a result, the survey is based on the opinions of respondents whose
perceptions are not relevant to a determination of a likelihood of confusion. See McCarthy §
32:161.
Failing to properly define the universe undermines the relevance and reliability of the
Seggev Survey and related testimony, such that it should all be excluded under Daubert and Rule
702. See Competitive Edge, Inc., 763 F. Supp. 2d at 1008. Again, Dr. Seggev’s testimony
should also be excluded under Rule 403 because permitting him to testify based on a survey that
was conducted across an improperly broad universe of participants will mislead the jury and
cause unfair prejudice to Facebook.
C.

The Seggev Survey Is Also Inadmissible Because It Is Scientifically
Unreliable and Prejudicial.
1.

The Seggev Survey Included Confusing and Biased Questions.

The Seggev Survey uses confusing and biased questions and formatting. “A reliable
survey should avoid the use of confusing or ambiguous questions.” Competitive Edge, 763 F.
Supp. 2d at 1008 (citing Nat’l Football League Props., Inc. v. ProStyle, Inc., 57 F. Supp. 2d 665,
668 (E.D. Wis. 1999)). The Seggev Survey showed respondents an image of Plaintiff’s home
webpage, which included Facebook’s “F Logo” and the tagline “Find Us on Facebook,” and then
asked respondents “Which of the following companies, if any, do you most associate this name
[Timelines] with? Please select all that apply.” After displaying Facebook’s name and logo
twice on the sample webpage, the questionnaire incredibly included Facebook in the list of
possible companies from which to choose. (Hughes Decl., Ex. A at Ex. 5, pp. 5-6.)
The inclusion of Facebook’s “F Logo” and the tagline “Find Us on Facebook” on the
sample webpages was suggestive and therefore prejudicial in that it likely led respondents to pick

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“Facebook” as the “correct” answer. In fact, several respondents stated that they identified
Facebook as one of the companies most associated with the name “Timelines” because they saw
the Facebook name on the sample webpage. (Id., Ex. 8.) Undoubtedly other respondents did the
same, consciously or subconsciously.
The questionnaire was also confusing in that it asked respondents to identify the
companies they most associated the name Timelines with, while at the same time instructing
them to select “all” that apply. (Id., Ex. 5, p. 6.) The use of “most” suggests to respondents that
they should identify only one company; the instruction to “please select all that apply”
potentially confused respondents into thinking that there should be more than one company with
which they “most” associated the name “Timelines.” Further compounding the potential for
respondent confusion is the fact that neither “Timelines, Inc.” nor any similar historical timelinecreation sites were included in the list of available options. Incredibly, the respondents were not
even provided with the right answer as an option.
The survey was also confusing because respondents were first shown the Timelines
website or the fictional Timescapes website and then, on the next separate screen, asked only
whether they associate the names “Timelines” and “Timescapes” (not the websites) with the
listed companies. Respondents were thus likely to be confused as to whether they were expected
to draw a relationship between the names and the websites they had previously reviewed, or to
simply look for an association between the names and the suggested answers. (Id., Exs. 8, 9
(e.g., several respondents selected “The New York Times” because both the name in the stimulus
and “The New York Times” included the word “time”).)
Finally, the questionnaire was leading. For example, the primary question could have
been formulated as an open-ended question: “Who, or what company, do you believe is offering

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the services available at the webpage you just viewed? Why do you say that?” In addition,
respondents could have been asked some formulation of the following: “Do you believe that the
services available at the webpage you just viewed are being offered with the authorization or
approval of any other company or companies? If so, what other company or companies? Why
do you say that?” Instead, Dr. Seggev chose to provide only a finite universe of potential
answers and further stacked the deck against Facebook by using Facebook’s famous mark on the
webpages and including Facebook as a possible answer choice, but not Plaintiff. The use of
confusing and biased questions renders the Seggev Survey unreliable and highly prejudicial, and
therefore the survey and related testimony should be excluded.
2.

The Seggev Survey Failed to Include A Proper Control.

Controls are an essential feature of reliable survey evidence because they eliminate the
“noise” or “error” in a survey. See Pharmacia Corp. v. GlaxoSmithKline Consumer Healthcare,
L.P., 292 F. Supp. 2d 594, 601 (D.N.J. 2003) (rejecting consumer survey where the expert did
not adequately control for consumers’ preexisting beliefs) (internal quotation marks and citation
omitted). “The control question or questions should use a mark similar enough to the actual
mark that it provides an accurate measure of the confusion created by the accused mark, not by
some other similarity.” McCarthy § 32:187. If the term at issue contains an element that is
generic or commonly used, the control must include that element; otherwise, the survey is
nothing more than a word association exercise. Simon Prop. Grp. L.P. v. MySimon, Inc., 104 F.
Supp. 2d 1033, 1046 (S.D. Ind. 2000) (finding that a proper control in a likelihood of confusion
survey where the term at issue was found to be commonly used must include that term).
Dr. Seggev intended the term “Timescapes” to serve as the control in his survey.
(Hughes Decl., Ex. A at ¶ 18.) “Timescapes” is inherently distinctive, however, and obviously
does not include the commonly used term “timeline” or anything close to it; as such, it failed to
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serve as an adequate control. That is, the control should have been another website that offered
“timeline” related services. Use of a control such as TIMELINE INDEX, or even an arguably
generic term that includes “time” (e.g., TIMESTAMP or TIMECARD), would have detected
respondents who thought there was a connection based solely on the fact that the two different
websites both offer timeline services, or services associated with generic terms such as
TIMESTAMP or TIMECARD, rather than the similarities in the allegedly conflicting “marks.”
Dr. Seggev himself criticized a similarly-designed control used in a case where the mark
at issue was “24/7 FITNESS” and the other expert used the control mark “LIFETIME
FITNESS.” 24 Hour Fitness USA, Inc. v. 24/7 Tribeca Fitness, LLC, 447 F. Supp. 2d 226, 280
(S.D.N.Y. 2006). Dr. Seggev opined that the control should have been another fitness facility
advertising that it was open 24 hours a day. Id. He suggested that use of a control such as “THE
24 HOUR GYM” would have detected respondents who thought there was a connection based
solely on the fact that two different facilities were both open 24 hours a day, not because of the
similarity of the conflicting marks. McCarthy § 32:187. The control in the Seggev Survey fails
for the same reasons.
This Court has excluded survey results for the failure to use adequate controls based on
the same principles. For example, in Simon Prop. Grp., L.P., the plaintiff proffered survey
evidence to support its claim that the defendant’s use of the MYSIMON mark was likely to cause
confusion with plaintiff’s SIMON marks. Simon Prop. Grp. L.P., F. Supp. 2d at 1037. The
defendant challenged the reliability of the survey and claimed it failed to test for relevant
consumer confusion because its controls did not include the “Simon” name component or take
into account the fact that the name “Simon” is used extensively on the Internet for commercial
purposes. Id. at 1047. The court agreed and excluded the survey results:

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SPG’s proposed survey technique would disregard entirely the fact
that other businesses, including other large and relatively wellknown ones, use “Simon” as part of their names on the Internet
and could also be confused with SPG.
***
A user who is equally confused by mySimon, by “Simonsays,” and
by other Simon sites does not show legally relevant confusion.
SPG must show there is something different about mySimon that
makes it more confusing than a level of perhaps inevitable
confusion based solely on the name.
***
[T]he absence of adequate controls to test for legally relevant
confusion provides another independent reason for excluding the
results of SPG's proposed home page survey.
Id. at 1046-1048.
The Seggev Survey is similarly flawed. It does not control for the amount of confusion
between the Alleged TIMELINES Marks and other names that use the term “timeline”
generically or descriptively, as compared to the amount of confusion claimed with Facebook’s
use of the term “timeline.” The survey thus failed to test for relevant consumer confusion and, as
a result, is unreliable and highly prejudicial. It should be excluded, along with Dr. Seggev’s
proffered testimony, under Daubert and Rules 702 and 403.
3.

The Seggev Survey Did Not Prevent Respondents from Guessing or
Looking Up the “Right” Answer.

The Seggev Survey is also unreliable because it did not include answer alternatives such
as “don’t know” or “no opinion” in order to prevent respondents from guessing as to the “right”
answer. Competitive Edge, 763 F.Supp.2d at 1009 (citing LG Elecs. USA, Inc. v. Whirlpool
Corp., 661 F.Supp.2d 940, 954 (N.D. Ill. 2009)) (explaining that reliable surveys include “don’t
know” or “no opinion” answer alternatives to prevent respondents from having to guess the
“right” answer). The key question in Dr. Seggev’s survey did not include the option to respond
“don’t know” or “no opinion.” Although the question did allow for respondents to answer “none

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of the above,” this is not the same as a “don’t know” or “no opinion” option because it presumes
the respondent does have an answer to the question but that the answer is not among the
available options. Id. (finding a survey’s reliability significantly compromised by its failure to
allow for “don’t know” responses).
Further, Dr. Seggev administered the survey online without any attempt to supervise the
respondents. No precautions were taken to prevent the respondents from opening a new Internet
browser to search for the “right” answer. For example, respondents could have logged into their
Facebook account, in which case they would have found out that Facebook offers a “timeline”
feature (if they did not already know that). The Seggev Survey fails to accurately measure the
authenticity of respondent answers, and further fails to prevent respondents from (or even
caution them against) researching the “right” response, rendering it unreliable.
IV.

CONCLUSION
Based on the foregoing, Facebook respectfully requests that the Court exclude the Seggev

Survey and Dr. Seggev’s expert report and testimony under Rules 702 and 403 and Daubert.
Dated: April 8, 2013

Respectfully submitted,

COOLEY LLP
By: /s/ Peter J. Willsey
Peter J. Willsey (pro hac vice)
Brendan Hughes (pro hac vice)
1299 Pennsylvania Avenue, NW, Ste 700
Washington, DC 20004-2400
Tel: [phone]; Fax: [phone]
Email: [e-mail]
[e-mail]

Steven D. McCormick (#1824260)
KIRKLAND & ELLIS LLP
300 North LaSalle
Chicago, IL 60654-3406
Tel: [phone]; Fax: [phone]
Email: [e-mail]

Michael G. Rhodes (pro hac vice)
101 California Street, 5th Floor
San Francisco, CA 94111-5800
Tel: [phone]; Fax: [phone]
Counsel for Facebook, Inc.
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CERTIFICATE OF SERVICE
The undersigned, an attorney, hereby certifies that he served the foregoing
MEMORANDUM IN SUPPORT OF FACEBOOK, INC.’S MOTION IN LIMINE NO. 1:
TO EXCLUDE DR. ELI SEGGEV’S SURVEY AND RELATED EXPERT REPORT AND
TESTIMONY by means of the Court’s CM/ECF System, which causes a true and correct copy
of the same to be served electronically on all CM/ECF registered counsel of record, on April 8,
2013.

Dated: April 8, 2013
/s/ Brendan J. Hughes
Brendan J. Hughes (pro hac vice)
COOLEY LLP
1299 Pennsylvania Avenue, NW
Suite 700
Washington, DC 20004-2400
Tel: [phone]
Fax: [phone]
Email: [e-mail]

1109548 HN

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