Isys Technologies v. Google et al

Filing 28

RESPONSE to Motion re 9 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order Objections To Declaration of David Politis filed by Defendant Google. (Buschmann, Craig)

COOLEY LLP
Peter J. Willsey (pro hac vice pending)
Brendan J. Hughes (pro hac vice pending)
Email: [e-mail]; [e-mail]
1114 Avenue of the Americas
New York, NY 10036-7798
Telephone: [phone]; Facsimile: [phone]
HOLME ROBERTS & OWEN LLP
Roger Myers (pro hac vice)
Robert Stolebarger (pro hac vice pending)
Craig Buschmann, #10696
Email: [e-mail]; [e-mail]; [e-mail]
299 South Main Street, Suite 1800
Salt Lake City, UT 84111-2263
Telephone: [phone]; Facsimile: [phone]
Attorneys for Defendant GOOGLE INC.
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
ISYS TECHNOLOGIES, INC., a Nevada
Corporation,
Plaintiff,

Case No. 2:11-CV-507 CW

OBJECTIONS OF GOOGLE INC. TO
DECLARATION OF DAVID POLITIS

v.

GOOGLE INC., a Delaware Corporation;
SAMSUNG ELECTRONICS USA, INC., a
Delaware Corporation; ACER AMERICA CORP.,
a California Corporation; AMAZON.COM, INC.,
a Delaware Corporation; and BEST BUY CO.,
INC., a Minnesota Corporation,

Judge Clark Waddoups

Defendants.
Defendant Google Inc. hereby objects to several statements made in the Declaration Of
David Politis In Support Of Isys’ Motion For Temporary Restraining Order And Preliminary
Injunction dated 6 June 2011 (hereinafter “Politis Declaration” or “Politis Decl.”). The
objections are set forth below following each of the several statements from the Politis

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Declaration. None of the statements is admissible under the Federal Rules of Evidence (“FRE”)
for the reasons stated.
STATEMENTS AND OBJECTIONS
All the following statements repeated from the Politis Declaration are in italics.
1.

In November 2010, the Consumer Electronics Association, owner of the International
Consumer Electronics Show, announced that ISYS’ Xi3 Modular Computer was to be
recognized as a 2011 International CES Innovations Design and Engineering Award
winner in the computer hardware category. (Politis Decl. at ¶ 1)
OBJECTIONS
a.

Hearsay. To the extent the statement is offered to prove that ISYS’ Xi3 Modular

Computer was to be recognized as a 2011 International CES Innovations Design and
Engineering Award winner in the computer hardware category, it is inadmissible as
hearsay under FRE 802.
b.

No Foundation. To the extent the statement is offered to prove that the Consumer

Electronics Association made the asserted announcement, it lacks foundation as to the
declarant’s knowledge of any such announcement.
c.

Best Evidence. This statement should be excluded as an improper introduction of

the contents of writings (the announcement) without providing the announcement itself.
The statement therefore lacks original documents that should be presented under FRE
1002 and should be excluded because it is not the best evidence.
d.

Irrelevant. This statement is not relevant under FRE 401 because any

announcement about the Xi3 Modular Computer is of no consequence to the

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determination of the action. The statement does not refer to the CHROMIUMPC mark or
any issues of consequence to the determination of the action. It is therefore inadmissible
under FRE 402.

2.

Images of the approximately 4” x 3½” Xi3 Modular Computer include:

(Politis Decl. at ¶ 2)
OBJECTIONS
No Foundation. This statement lacks any information as to when these products were
made, when the photograph was taken, or whether the products have ever been seen by
the public.

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3.

The Xi3 Modular Computer and other Xi3 Technology products thereafter received rave
reviews at the January 6-9, 2011 International Consumer Electronics Show in Las Vegas,
Nevada (“CES 2011”). (Politis Decl. at ¶ 3)
OBJECTIONS
a.

Hearsay. To the extent the statement is offered to prove that individuals or

entities favorably received the Xi3 Technology products at CES 2011, it is inadmissible
as hearsay under FRE 802.
b.

No Foundation. To the extent the statement is offered to prove that

communications were made to declarant regarding Xi3 Technology products at CES
2011, it lacks foundation as to the declarant’s knowledge of any such communications,
including who made them, when, and under what circumstances.
c.

Best Evidence. This statement should be excluded as an improper introduction of

the contents of writings (the “rave reviews”) without providing the reviews themselves.
The statement therefore lacks original documents that should be presented under FRE
1002 and should be excluded because it is not the best evidence.
d.

Irrelevant. This statement is not relevant under FRE 401 because the critical

reception to the Xi3 Modular Computer is of no consequence to the determination of the
action. The statement does not refer to the CHROMIUMPC mark or any issues of
consequence to the determination of the action. It is thus inadmissible under FRE 402.

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4.

A Business Wire New [sic] Release covering the CES 2011 show characterized the impact
of the Xi3 Technology as “Xi3 Corporation Rocks CES 2011.” (Politis Decl. at ¶ 4)
OBJECTIONS
a.

Hearsay. To the extent the statement is offered to prove the impact of Xi3

Technology at CES 2011, it is inadmissible as hearsay under FRE 802.
b.

No Foundation. To the extent the statement is offered to prove that the news

release was issued, it lacks foundation as to the declarant’s knowledge of the release,
including who authored and released it, when, and to what media outlets.
c.

Best Evidence. This statement should be excluded as an improper introduction of

the contents of writings (the news release) without providing the release itself. The
statement therefore lacks original documents that should be presented under FRE 1002
and should be excluded because it is not the best evidence.
d.

Irrelevant. This statement is not relevant under FRE 401 because the impact of

Xi3 Technology at CES 2011 of no consequence to the determination of the action. The
statement does not refer to the CHROMIUMPC mark or any facts of consequence to the
determination of the action. It is therefore inadmissible under FRE 402.

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5.

A version of the Xi3 Modular computer is being branded and promoted as the
CHROMIUMPC computer. (Politis Decl. at ¶ 5)
OBJECTIONS
No Foundation. This statement lacks a proper foundation because it does not identify or
describe what constitutes the purported “brand[ing] and promot[ion]” or what the basis of
declarant’s knowledge of the purported “brand[ing] and promot[ion]” is.

6.

One example of the Xi3 CHROMIUMPC computer is depicted as follows:

(Politis Decl. at ¶ 6)
OBJECTIONS
No Foundation. This statement lacks any information as to when this product was made,
when the photograph was taken, and whether the image represents a true and correct
photograph of an actual product bearing the CHROMIUMPC mark. The statement also
lacks a foundation as to what it means to “depict” an “example” of “the Xi3
CHROMIUMPC computer.”
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7.

In 2008, Google initiated an open-source software development project named
Chromium. Google invited independent third parties to participate. (Politis Decl. at ¶ 7)
OBJECTIONS
a.

Not Competent. There is nothing to show that the declarant has any competence

to testify about Google’s CHROMIUM open-source development projects, and the
statement is therefore inadmissible under FRE 601.
b.

No Foundation. This statement lacks a proper foundation because it does not

provide the basis for the declarant’s purported knowledge about Google’s open-source
development projects.

8.

This Chromium software initiative was for software development by third parties for
networks such as the Internet for accessing, navigating, searching, browsing, running
web applications and/or communicating. (Politis Decl. at ¶ 8)
OBJECTIONS
a.

Not Competent. There is nothing to show that the declarant has any competence

to testify about Google’s CHROMIUM software initiative, and the statement is therefore
inadmissible under FRE 601.
b.

No Foundation. This statement lacks a proper foundation because it does not

provide the basis for the declarant’s purported knowledge about Google’s software
initiatives.

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9.

On May 11, 2011, Google announced the public launch of upcoming sales of its
CHROMEBOOK PC product and hinted at also using CHROMEBOX for a desktop PC.
(Politis Decl. at ¶ 9)
OBJECTIONS
a.

Not Competent. There is nothing to show that the declarant has any competence

to testify about Google’s sales announcements, and the statement is therefore
inadmissible under FRE 601.
b.

No Foundation. This statement lacks a proper foundation because it does not

provide the basis for the declarant’s knowledge about the purported announcement. The
statement also fails to provide a foundation for what “public launch of upcoming sales”
of a product means or what the nature of the purported announcement or purported
“hint[ing]” was.
c.

Best Evidence. This statement should be excluded as an improper introduction of

the contents of writings (the announcement) without providing the announcement itself.
The statement therefore lacks original documents that should be presented under FRE
1002 and should be excluded because it is not the best evidence.

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10.

Under the direction and inducement of Google in the U.S., Google’s CHROMEBOOK
PC product is being manufactured, promoted and advertised by Samsung and Acer for
sale in the United States and other countries. (Politis Decl. at ¶ 10).
OBJECTIONS
a.

Not Competent. There is nothing to show that the declarant has any competence

to testify about the manufacturing, promotion, or advertising of the CHROMEBOOK
product or about Google’s relationships with Samsung or Acer, and the statement is
therefore inadmissible under FRE 601.
b.

No Foundation. This statement does not provide the basis for the declarant’s

purported knowledge about the manufacturing, promotion, or advertising of the
CHROMEBOOK product or about Google’s relationships with Samsung or Acer.
c.

Improper Opinion. With respect to “direction and inducement,” this is opinion

offered to prove a fact when it has not been shown that the witness is an expert. Thus the
statement is an inadmissible opinion of a lay person under FRE 701.
d.

Best Evidence. To the extent this statement is based on the contents of writings, it

should be excluded as an improper introduction of the contents of writings without
providing the writings themselves. The statement therefore lacks original documents that
should be presented under FRE 1002 and should be excluded because it is not the best
evidence.

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Dated this 13th day of June, 2011.
/s/ Craig Buschmann
Robert Stolebarger
Craig Buschmann
HOLME ROBERTS & OWEN, LLP
299 South Main Street, Suite 1800
Salt Lake City, Utah 84101
Attorneys for Google Inc.

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CERTIFICATE OF SERVICE
I hereby certify that on the 13th day of June, 2011, I caused a true and correct copy of the
OBJECTIONS OF GOOGLE INC. TO DECLARATION OF DAVID POLITIS to be
served as follows:
Todd E. Zenger
Dax D. Anderson
Joshua S. Rupp
KIRTON & McCONKIE
1800 Eagle Gate Tower
60 East South Temple
Salt Lake City, UT 84111

_____ U.S. Mail, postage prepaid
_____ Hand Delivery
_____ Facsimile
_____ Overnight courier
X E-Mail and/or CM/ECF

By: /s/ Sherice L. Atterton

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