TimesLines, Inc v. Facebook, Inc.

Filing 122

MEMORANDUM by Facebook, Inc. in support of motion in limine 121 to Exclude Evidence, Argument, and Testimony Regarding Facebook's Temporary Redirection of Plaintiff's Facebook Page (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. 2:
TO EXCLUDE EVIDENCE, ARGUMENT, AND TESTIMONY REGARDING
FACEBOOK, INC.’S TEMPORARY REDIRECTION OF
PLAINTIFF’S FACEBOOK PAGE
Defendant Facebook, Inc. (“Facebook”) respectfully moves this Court in limine for an
order excluding evidence, argument, and testimony regarding Facebook’s temporary and
unintentional redirection of Plaintiff’s Facebook page (www.facebook.com/timelines).
I.

INTRODUCTION
Plaintiff will seek to introduce evidence that for a very brief period of time Facebook

redirected Internet users attempting to access Plaintiff’s Facebook page to an informational page
regarding Facebook’s timeline feature. This fact is irrelevant under Federal Rule of Evidence
401. Further, such evidence should be barred under Federal Rule of Evidence 403 because any
probative value is substantially outweighed by the danger of unfair prejudice, confusion of the
issues, and misleading the jury. The Court should therefore preclude the admission of this
evidence.
II.

BACKGROUND
In connection with launching Facebook’s timeline feature at the f8 Conference, Facebook

created an informational web page available at Facebook.com/about/timeline (the “About”
Page). (Declaration of Brendan J. Hughes in Support of Defendant Facebook, Inc.’s Motion in

Limine No. 2: To Exclude Evidence, Argument, or Testimony Regarding Facebook, Inc.’s
Temporary Redirection of Plaintiff’s Facebook Page (“Hughes Decl.”), Ex. A (Deposition of
Samuel Lessin (“Lessin Dep. Tr.”)) at 277.) Facebook also made the information reachable via
Facebook.com/timeline

by

redirecting

users

who

entered

that

URL

to

Facebook.com/about/timeline. (Id. at 277-78; Hughes Decl., Ex. B at FB_TL00002147-2148.)
In doing so, a Facebook engineer made a minor computer coding error that caused the redirection
of Internet users seeking to access not just Facebook.com/timeline exactly, but also any URL
starting

with

“Facebook.com/timeline,”

including

Plaintiff’s

Facebook

webpage

Facebook.com/timelines, and, hypothetically, Facebook.com/timelineanythingelse.

at

(Hughes

Decl., Ex. A (Lessin Dep. Tr.) at 278, 282.) The computer coding error was unintentional.
Facebook immediately corrected the error once it learned about the problem (when Plaintiff filed
its complaint in this action). (Id. at 278-79.)
Plaintiff has alleged that the temporary redirection demonstrates Facebook’s knowledge
of and intention to create consumer confusion. (Dkt. No. 27 (Pl.’s First Amended Complaint), ¶¶
10-12.) The redirection, however, demonstrates neither. The redirection was a technological
glitch, entirely unrelated to Plaintiff, its purported “Timelines” mark, or this dispute. Thus, any
evidence, argument, or testimony regarding the redirection should be excluded as irrelevant and
potentially prejudicial evidence under Federal Rules of Evidence 401, 402, and 403.
III.

ARGUMENT
Federal Rule of Evidence 401 provides that evidence is relevant if it “has any tendency to

make a fact more or less probable than it would be without the evidence.” FED. R. EVID. 401.
Irrelevant evidence is inadmissible, while relevant evidence is admissible unless a binding rule
holds otherwise. See FED. R. EVID. 402. “The court may exclude relevant evidence if its

probative value is substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.” FED. R. EVID. 403.
Where, as here, evidence lacking any probative value is simply proffered to elicit an
emotional response from the jury, the Court should exclude it.
The term “unfair prejudice,” within the context of Rule 403, means undue
tendency to suggest decision on an improper basis, commonly, though not
necessarily, an emotional one. Depew v. Hanover Ins. Co., 438 F.Supp. 358, 360
(E.D.Tenn.1977); cf. United States v. Grassi, 602 F.2d 1192, 1197 (5th Cir.1979).
Generally, it is said that the danger of unfair prejudice in the admission of
evidence always exists where it is used for something other than its logical
probative force.
Empire Gas Corp. v. American Bakeries Co., 646 F.Supp. 269, 276 (N.D. Ill 1986).
Plaintiff will attempt to introduce evidence of the temporary redirection of its Facebook
page, which was the result of a technological coding error. The uncontroverted testimony of
Sam Lessin, Facebook’s Director of Product Management, makes clear that Facebook was not
aware of the mistake when it occurred, that the redirection was unintentional, and that Facebook
resolved the mistake shortly after it was made aware of the issue (within a week of the error).
(Hughes Decl., Ex. A (Lessin Dep. Tr.) at 278.) In short, not a shred of evidence developed and
explored during discovery in this case indicates that the redirection was anything other than the
result of an inadvertent software programming error, that Facebook had any intent to redirect
users from Plaintiff’s page, or that anyone at Facebook was even aware of the redirection before
Plaintiff brought it to Facebook’s attention by filing this lawsuit.
The redirection is not evidence of confusion because it has nothing to do with either
Facebook’s or Plaintiff’s uses of the term “timeline” in connection with their respective products,
or consumers’ perception of those uses. At most, the redirection provides an example of a
simple mistake made by an engineer when assisting in the rollout of a new feature by Facebook.

Rather than assist the jury in making a determination of whether Facebook infringed Plaintiff’s
purported rights in the “TIMELINES” mark, evidence of the redirection would only confuse the
jury during trial and inject extraneous information into their analysis. Plaintiff should therefore
be precluded from introducing evidence of the redirection at trial.
IV.

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

argument, and testimony regarding the temporary redirection of Plaintiff’s Facebook page under
Federal Rules of Evidence 401, 402 and 403.

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 Ave., NW, Suite 700
Washington, DC 20004-2400
Tel: [phone]; Fax: [phone]
Email: [e-mail]
[e-mail]
Michael G. Rhodes (pro hac vice)
101 California Street, 5th Floor
San Francisco, CA 94111-5800
Tel: [phone]; Fax: [phone]
Email: [e-mail]
Counsel for Facebook, Inc.

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

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. 2:
TO EXCLUDE EVIDENCE, ARGUMENT, AND TESTIMONY REGARDING THE
TEMPORARY REDIRECTION OF PLAINTIFF’S FACEBOOK PAGE 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 Ave., NW, Suite 700
Washington, DC 20004-2400
Tel: [phone]
Fax: [phone]
Email: [e-mail]

1109668 HN