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.
ยป****[ 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
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