TimesLines, Inc v. Facebook, Inc.

Filing 149

MEMORANDUM by Facebook, Inc. in support of motion in limine 148 to Exclude Evidence, Argument, and Testimony Regarding Allegations (Willsey, Peter)

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

)
)
)
)
)
)
)
)
)

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

FACEBOOK, INC.’S MEMORANDUM IN SUPPORT OF MOTION IN LIMINE NO. 7:
TO EXCLUDE EVIDENCE, ARGUMENT, AND TESTIMONY REGARDING
ALLEGATIONS OF FACEBOOK’S GENERAL DISRESPECT
FOR THE RIGHTS OF OTHERS
Defendant Facebook, Inc. (“Facebook”) respectfully moves this Court in limine for an
order excluding any evidence, argument, and testimony suggesting that Facebook has a general
disrespect for the rights of others, including but not limited to evidence, argument or testimony
that Facebook or any of its employees are computer software “hackers” or supposedly steal the
intellectual property or other assets of third parties.
As discussed in Facebook’s Motion In Limine No. 6, Plaintiff Timelines, Inc. (“Plaintiff”)
intends to introduce an irrelevant non-public statement attributed to Mr. Mark Zuckerberg,
Facebook’s founder and CEO, presumably to argue that Facebook does not respect others’ rights,
including trademark rights allegedly held by Plaintiff.

Based on this proposed evidence,

Facebook anticipates that Plaintiff may introduce other evidence or argument in an attempt to
tarnish the image of Facebook or Mr. Zuckerberg as relating to a purported lack of respect for the
rights of others. Facebook therefore requested that Plaintiff stipulate that it would not introduce
such character evidence. Because Plaintiff refused to so stipulate, Facebook requests that the
Court preclude the Plaintiff from introducing any such evidence at trial.

I.

BACKGROUND
Facebook has been the subject of a number of unsupported allegations directly impugning

its corporate integrity, such as having a purported “hacker” culture and not honoring certain
alleged business commitments. To the extent Plaintiff intends to use any such evidence to
suggest to the jury that Facebook or Mr. Zuckerberg are “bad actors” that do not respect the
rights of others, it should be excluded as wholly irrelevant to the issues in this case and as classic
examples of inadmissible character evidence.
II.

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.

Any testimony or exhibits seeking to impugn

Facebook’s corporate culture, Mr. Zuckerberg or any other Facebook employees are entirely
irrelevant to the issues of alleged trademark usage and infringement at issue in this case. On the
basis of relevance alone, the Court should not allow Plaintiff to introduce any defamatory
character allegation as evidence during trial.
Moreover, Federal Rule of Evidence 403 provides that even if the Court concludes that
such character evidence might have some relevance to the issues in this case, “[t]he 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 with no probative value is simply submitted to elicit an emotional response from
the jury, the Court should exclude the evidence:
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); see also
Thompson v. City of Chicago, 472 F.3d 444, 456-57 (7th Cir. 2006) (citation omitted) (“Rule 403
provides a district court with discretion to exclude evidence where ‘its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the
jury.”).
Any evidence related to an alleged “hacker” culture at Facebook, or concerning Mr.

Zuckerberg or other Facebook employees in regards to a supposed disrespect for the rights of
others, constitutes classic inadmissible character evidence intended only to confuse the jury into
holding Facebook liable for its allegedly “bad general record and deny [it] a fair opportunity to
defend against a particular charge.” Michelson v. United States, 335 U.S. 469, 475-76 (1948)
(holding character evidence leads to “confusion of issues, unfair surprise and undue prejudice”).
Plaintiff would like to convince the jury that Facebook and Mr. Zuckerberg show little respect
for the rights of others generally and that, therefore, Facebook must have infringed Plaintiff’s
purported trademark rights in “Timelines” rather than respect those rights. This theory is not
only wrong, but its potential “to so overpersuade [the jury],” id., is precisely why “[e]vidence of
a person’s character or character trait is not admissible.” FED. R. EVID. 404(a); see United States
v. Booker, 334 F.3d 406, 411 (5th Cir. 2003) (“To be admissible under Rule 404(b), evidence
must be relevant to an issue other than the defendant’s character and must possess probative
value not substantially outweighed by the danger of unfair prejudice.”) The Court should
therefore deny Plaintiff’s attempt to introduce evidence of this type at trial.
III.

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

evidence, argument, and testimony containing allegations regarding Facebook’s or Mr.
Zuckerberg’s character or their respect for the rights of others.

/

/

/

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]
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 FACEBOOK,
INC.’S MOTION IN LIMINE NO. 7: TO EXCLUDE EVIDENCE, ARGUMENT, AND
TESTIMONY REGARDING ALLEGATIONS OF FACEBOOK’S GENERAL
DISRESPECT FOR THE RIGHTS OF OTHERS 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]

189840 DC