Rosetta Stone LTD v. Google Inc.

Filing 163

Objection to 151 Declaration, 150 Declaration,,, filed by Rosetta Stone LTD. (Allen, Warren)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION
____________________________________
ROSETTA STONE LTD.,
)
)
Plaintiff,
)
)
vs.
)
)
GOOGLE INC.,
)
)
Defendant.
)
____________________________________)

Civ. Action No. 1:09-cv-00736(GBL/TCB)

ROSETTA STONE LTD.’S OBJECTIONS TO DECLARATIONS IN
SUPPORT OF GOOGLE INC.’S OPPOSITION TO ROSETTA STONE’S
MOTION FOR PARTIAL SUMMARY JUDGMENT

Rosetta Stone Ltd. hereby objects to the Declarations of Kris Brewer and Henry Lien,
which were submitted in support of Google’s opposition to Rosetta Stone’s motion for partial
summary judgment, as follows. Rosetta Stone reserves the right to add to, or amend, these
objections, as appropriate and necessary.1
DECLARATION OF KRIS BREWER
1.

Rosetta Stone objects to Exhibit 1 on the ground that it is incomplete. Exhibit 1

consists of 3 non-consecutive pages of a “collection of documents” that has not been provided to
the Court or to Rosetta Stone.
2.

Rosetta Stone objects to Exhibit 1 on the additional ground that the documents

that comprise this Exhibit were not produced to Rosetta Stone during the course of discovery
even though they were expressly called for by the Court’s February 4, 2010 Order compelling
Google to produce documents. In this regard, on February 4, 2010, the Court ordered Google to
produce, among many other documents, documents responsive to Rosetta Stone’s Request No.
77. (See 02/04/2010 Hearing Tr. at 36:7-9.) Request No. 77 called for:
All documents relating to consumer or user confusion related in any way to
Google's Sponsored Links, Google's Advertising Program and/or the use of
Keywords in search engines, including surveys conducted by or for Google
relating to the sale, marketing, promotion, offering, designation, use, or inclusion
of Keywords by Google in any way. This Request specifically includes draft
surveys and survey results relating to the potential for likelihood of consumer
confusion arising out of the sale, marketing, promotion, offering, designation, use,
or inclusion of trademarks as Keywords or designated search terms in Google's
Advertising Programs.

1

To the extent Google relies on evidence that it submitted in support of its motion for
summary judgment, filed March 26, 2010, Rosetta Stone incorporates by reference its
Objections to Declarations in Support of Google Inc.’s Motion for Summary Judgment and
Its Motion to Exclude Expert Report and Opinion of Dr. Kent Van Liere. (Dkt. No. 146.)

The only documents excluded from the scope of the Court’s order were those maintained in
Google’s Trax system, which Google represented would be unduly burdensome to search. By
letter dated March 8, 2010, Rosetta Stone asked Google to confirm that it had produced “all
documents, other than those maintained only in Google’s Trax system, that are responsive to
Request Nos. 18, 19, 20, 21, 22, 23, 76, 77, 78, 79 and 93.” By letter dated March 10, 2010,
Google expressly confirmed, with respect to each of these requests, that it had “produced all nonprivileged responsive documents that it has been able to locate after a reasonable diligent search.
Google is not aware of other responsive material.” Nevertheless, Google did not produce to
Rosetta Stone the three pages submitted as Exhibit 1 to the Brewer Declaration. Nor did Google
produce documents bearing the Bates range GOOG-RS-0494057 through GOOG-RS-0494128.
DECLARATION OF HENRY LIEN
1.

Rosetta Stone objects to Exhibit 1 on the grounds that it lacks foundation and is

incomplete.
2.

Rosetta Stone objects to Exhibit 2 on the grounds that it lacks foundation,

constitutes hearsay and is incomplete.
3.

Rosetta Stone objects to Exhibit 3 on the grounds that it lacks foundation,

constitutes hearsay and is incomplete.
4.

Rosetta Stone objects to Exhibit 4 on the grounds that it lacks foundation,

constitutes hearsay and is incomplete.
5.

Rosetta Stone objects to Exhibit 5 on the grounds that it lacks foundation,

constitutes hearsay and is incomplete.
6.

Rosetta Stone objects to Exhibit 6 on the grounds that it lacks foundation,

constitutes hearsay and is incomplete.

2

7.

Rosetta Stone objects to Exhibit 7 on the grounds that it lacks foundation,

constitutes hearsay and is incomplete.
8.

Rosetta Stone objects to Exhibit 8 on the grounds that it lacks foundation,

constitutes hearsay and is incomplete.
9.

Rosetta Stone objects to Exhibit 9 on the grounds that it lacks foundation,

constitutes hearsay and is incomplete.
10.

Rosetta Stone objects to Exhibit 10 on the grounds that it lacks foundation and is

incomplete.
11.

Rosetta Stone objects to Exhibit 11 on the grounds that it lacks foundation and

constitutes hearsay.
12.

Rosetta Stone objects to Exhibit 12 on the grounds that it lacks foundation and

constitutes hearsay.
Respectfully submitted,
April 14, 2010
Of Counsel:
Mitchell S. Ettinger
(Pro hac vice)
Clifford M. Sloan
(Pro hac vice)
Jennifer L. Spaziano
(Pro hac vice)
Skadden, Arps, Slate, Meagher & Flom, LLP
1440 New York Avenue, N.W.
Washington, D.C. 20005-2111

/s/
Warren T. Allen II
Virginia Bar Number 72691
Attorney for Plaintiff Rosetta Stone Ltd.
Skadden, Arps, Slate, Meagher & Flom, LLP
1440 New York Avenue, N.W.
Washington, D.C. 20005-2111
[phone]
[phone]
[e-mail]

3

CERTIFICATE OF SERVICE
I hereby certify that on April 14, 2010 I will electronically file the foregoing with the
Clerk of the Court using the CM/ECF system which will then send a notification of such filing
(NEF) to the following:
Jonathan D. Frieden
ODIN, FELDMAN & PETTLEMAN, P.C.
9302 Lee Highway, Suite 1100
Fairfax, VA 22031
[e-mail]
Counsel for Defendant, Google Inc.
True and correct copies of documents filed under seal will be sent electronically to:
[e-mail]
[e-mail]

April 14, 2010
Date

/s/
Warren T. Allen II (Va. Bar No. 72691)
Attorney for Rosetta Stone Ltd.
Skadden, Arps, Slate, Meagher & Flom LLP
1440 New York Avenue, N.W.
Washington, D.C. 20005-2111
Telephone: [phone]
Facsimile: [phone]
[e-mail]