Rosetta Stone LTD v. Google Inc.

Filing 229

ORDER that Google's 155 Objections to Evidence and Motion to Strike are OVERRULED and DENIED (see order for details). Signed by District Judge Gerald Bruce Lee on 8/2/10. (klau, )

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

Rosetta Stone, Ltd.,

)

Plaintiff,

)

U

L

E

)

v.

p

Google,

Inc.,

AU6 - 2 2010

Case No.

l:09cv736

(GBL/TCB)

)

Defendant.

)
ORDER

THIS MATTER is before the Court on Defendant's Objections
to Evidence and Motion to Strike.
of Defendant Google,

Inc's

documents and testimony,

("Google")

Liability

No.

155.)

Upon review

objections to certain

which were attached to declarations

that Plaintiff Rosetta Stone,
in support of

(Dkt.

Ltd.

("Rosetta Stone")

submitted

its Motion for Partial Summary Judgment as to

(Dkt.

No.

103),

it is hereby

ORDERED that Google's Objections to Evidence and Motion to
Strike are OVERRULED and DENIED,
As to Objection one,

respectively.

the Court holds

that the cited

paragraphs of Rosetta Stone's Calhoun Declaration
constitute hearsay or lack foundation because,
Stone's Enforcement Manager,

of

Mr.

(1)

do not

as Rosetta

Calhoun had personal

knowledge

the anti-fraud and anti-piracy information contained in the

declaration;

(2)

are not irrelevant because they establish a

necessary element of Rosetta Stone's

trademark infringement

claim;

and

(3)

are not argumentative because Mr.

statements are factual in nature,
substantiated by

As

documentary

to Objection two,

Calhoun's

are not conclusory,

and are

support.

the Court holds that Mr.

Calhoun

possesses the personal knowledge necessary to authenticate the

email messages that comprise Calhoun Declaration,
because each of
Mr.

these email messages was

Exhibit B,

either sent by or to

Calhoun.

As

to Objection three,

the Court holds

that Calhoun

Declaration,

Exhibit C does not constitute inadmissible hearsay

and does not

lack foundation because Mr.

Calhoun,

capacity as Rosetta Stone's Enforcement Manager,

in his
can

authenticate the spreadsheets that comprise Exhibit C,
summarize the numerous

occasions

Google that many of Google's

which

in which Rosetta Stone notified

Sponsored Link advertisers were

selling counterfeit Rosetta Stone products.
As

to Objection four,

the

Court

holds

that paragraph three

of Rosetta Stone's Leigh Declaration does not lack foundation
because Mr.

of Online,

Leigh,

in his capacity as Rosetta Stone's Director

Direct-to-Consumer Sales,

used his personal knowledge

and experience to substantiate his claims.
assertions are not

Further,

Mr.

contradicted by substantial evidence

Leigh's
to the

contrary.

Objections

five through twelve are moot because

Google

provides the name and location of the additional relevant

deposition testimony necessary for Google's

fair understanding

and contemporaneous consideration of the excerpts to which it
objects.

As to Objection thirteen,

Declaration,

the Court holds that Spaziano

Exhibits 24 to 27 are relevant and non-prejudicial,

and do not constitute hearsay or lack foundation because

(1)

they are relevant to establishing Google's knowledge and intent
for purposes of Rosetta Stone's trademark infringement claim;
(2)

they were not being offered to prove the truth of the matter

asserted;

and

(3)

they were produced in response to the Court's

order directing Google to produce all trademark complaints.
As to Objections
Spaziano Declaration,

fourteen and fifteen,
Exhibits

8

to 15

unduly prejudicial because Google's
have

significant bearing on

this

the Court holds that

are relevant and not

consumer confusion studies

case

and have

a

tendency to

make more probable Rosetta Stone's trademark infringement claim.
As to Objections

sixteen to eighteen,

the Court holds

the cited depositions attached to Rosetta Stone's
Declaration are
allegations
origin of

relevant because

Spaziano

each concerns Rosetta Stone's

that consumers were actually confused as

the Rosetta Stone products

to establish an essential
infringement claim.

element

that

they purchased,

of Rosetta Stone's

to the
which aims
trademark

As to Objection nineteen,
depositions

the Court holds

attached to Rosetta Stone's

not prejudicial

that

the

Spaziano Declaration are

because they were produced by Google

Stone and are in accordance with the parties'
Supplemental Rule

26(a)(1)

disclosures.

this ORDER to

counsel.

»****[ day of August,

2010.

/s/

Alexandria, Virginia

to Rosetta

agreed

The Clerk is directed to forward a copy of

Entered this

cited

Gerald Bruce Lee

United States District Judge