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Google Inc. v. American Blind & Wallpaper Factory, Inc. Doc.

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Case 5:03-cv-05340-JF Document 274 Filed 02/02/2007 Page 1 of 8

1 KEKER & VAN NEST, LLP


MICHAEL H. PAGE - #154913
2 MARK A. LEMLEY - #155830
KLAUS H. HAMM - #224905
3 AJAY S. KRISHNAN - #222476
710 Sansome Street
4 San Francisco, CA 94111-1704
Telephone: (415) 391-5400
5 Facsimile: (415) 397-7188

6 Attorneys for Plaintiff and Counter-Defendant


GOOGLE INC.
7

8 UNITED STATES DISTRICT COURT

9 NORTHERN DISTRICT OF CALIFORNIA

10

11 GOOGLE INC., a Delaware corporation, Case No. C 03-5340-JF (RS)

12 Plaintiff, GOOGLE’S OBJECTIONS TO


EVIDENCE SUBMITTED BY ABWF IN
13 v. OPPOSITION TO GOOGLE’S MOTION
FOR TERMINATING, EVIDENTIARY,
14 AMERICAN BLIND & WALLPAPER AND MONETARY SANCTIONS
FACTORY, INC., a Delaware corporation AGAINST ABWF FOR SPOLIATION OF
15 d/b/a decoratetoday.com, Inc., and EVIDENCE
DOES 1-100, inclusive,
16 Date: February 16, 2007
Defendants. Time: 9:00 a.m.
17 Courtroom: 3, 5th Floor
Judge: Hon. Jeremy Fogel
18 AMERICAN BLIND & WALLPAPER
FACTORY, INC., a Delaware corporation
19 d/b/a decoratetoday.com, Inc.,
20 Counter-Plaintiff,
21 v.
22 GOOGLE INC.,
23 Counter-Defendant.
24

25

26

27

28

GOOGLE’S OBJECTIONS TO EVIDENCE SUBMITTED BY DEFENDANTS IN OPPOSITION TO MOTION


388974.01 FOR SANCTIONS AGAINST ABWF FOR SPOLIATION OF EVIDENCE
CASE NO. C 03-5340-JF (RS)
Dockets.Justia.com
Case 5:03-cv-05340-JF Document 274 Filed 02/02/2007 Page 2 of 8

1 Plaintiff and Counterdefendant Google Inc. hereby objects to and moves to strike, in

2 whole or in part, the following declarations submitted in support of American Blind and

3 Wallpaper Factory, Inc.’s (“ABWF”) Opposition to Google Inc.’s Motion for Terminating,

4 Evidentiary, and Monetary Sanctions Against ABWF for Spoliation of Evidence:

5 • Declaration of Susan Greenspon in Support of Defendant American Blind and


6 Wallpaper Factory, Inc.’s Opposition to Google Inc.’s Motion for Terminating,

7 Evidentiary, and Monetary Sanctions Against ABWF for Spoliation of Evidence

8 (Docket Item No. 258) (“Greenspon Declaration”);

9 • Greenspon Decl., Ex. D (Docket Item No. 258-5) (“Katzman’s Status Quo
10 Declaration”); and

11 • Declaration of Steve Katzman (Docket Item No. 259) (“Katzman Spoliation


12 Declaration”).

13 Google moves to strike in part the Greenspon Declaration, and Google moves to strike in

14 their entirety the two Katzman declarations, pursuant to Civil Local Rule 7-5(b) and the Federal

15 Rules of Evidence. As set forth more fully below, these declarations lack foundation, contain

16 improper opinion and argument, contain improper legal conclusions. Accordingly, these

17 declarations should be stricken pursuant to Local Rule 7-5(b), which provides that “[a]n affidavit

18 or declaration may contain only facts, must conform as much as possible to the requirements of

19 FRCivP56(e), and must avoid conclusions and argument. Any statement made upon information

20 or belief must specify the basis therefor. An affidavit or declaration not in compliance with this

21 rule may be stricken in whole or in part.”

22 The following are objections to the Greenspon Declaration.

23 Objectionable Evidence Grounds for Objection


24 ¶14: “Thus, I am well aware of his [Mr. Lacks foundation. Ms. Greenspon lacks
Katzman’s] understanding of legal matters, personal knowledge or has not supplied a
25 including the discovery process in litigation.” sufficient foundation to testify to Katzman’s
understanding of legal matters or discovery.
26 Fed. R. Evid. 602. Conclusory and
argumentative. Civil Local Rule 7-5(b).
27
¶15: “My general practice was to transmit Lacks foundation. Ms. Greenspon lacks
28 discovery requests to Katzman for him to personal knowledge to know—in her general
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GOOGLE’S OBJECTIONS TO EVIDENCE SUBMITTED BY DEFENDANTS IN OPPOSITION TO MOTION
388974.01 FOR SANCTIONS AGAINST ABWF FOR SPOLIATION OF EVIDENCE
CASE NO. C 03-5340-JF (RS)
Case 5:03-cv-05340-JF Document 274 Filed 02/02/2007 Page 3 of 8

1 Objectionable Evidence Grounds for Objection


2 disseminate to the correct individuals and practice—whether Katzman disseminated the
collect the relevant documents for later discovery requests, whether he did so to the
3 transmission to opposing counsel. This correct individuals, whether he collected
procedure was followed with regard to documents, and whether those documents
4 Google’s document requests to American were relevant. She also lacks personal
knowledge to know whether any of these
5 Blind.” things were true for Google’s document
requests. Fed. R. Evid. 602. Conclusory and
6 argumentative. Civil Local Rule 7-5(b).
7 ¶16: “In late 2003, I and David Rammelt To the extent this statement suggests that Ms.
traveled to American Blind’s headquarters in Greenspon or Mr. Rammelt instructed ABWF
8 Plymouth, Michigan for the purpose of employees to preserve documents, it effects a
meeting with Steve Katzman, then American selective waiver of attorney-client privilege.
9 U.S. v. Reyes, ___ F.R.D. ___, CR 06-0556
Blind’s CEO and President, and Joseph
CRB, 2006 WL 3798073 at *8 (N.D. Cal.
10 Charno, then Vice President of Marketing, to Dec. 22, 2006) (internal quotation marks
address the collection and preservation of omitted) (quoting Periman Corp. v. United
11 documents regarding the lawsuit Google had States, 665 F.2d 1214, 1221 (D.C. Cir. 1981)
filed against American Blind in the Northern (“Parties cannot be permitted to pick and
12 District of California on November 26, 2003.” choose in their disclosure of protected
communications, waiving the privilege for
13 some and resurrecting the claim of
confidentiality to obstruct others.”). Thus,
14 this statement must either be struck, or it must
be deemed a full waiver. If deemed a full
15 waiver, Google hereby asserts the right to
compel production of all of ABWF’s
16 attorney-client privileged or work-product
documents on document preservation,
17 retention, search, collection, and destruction,
and to compel production of witnesses from
18 both ABWF and from ABWF’s outside
counsel concerning communications on those
19 subject.
20 ¶16: “Katzman, educated as an attorney, Lacks foundation. Ms. Greenspon lacks
understood this undertaking.” personal knowledge to know whether
21 Katzman understood “this undertaking.” Fed.
R. Evid. 602. Conclusory and argumentative.
22 Civil Local Rule 7-5(b).
23 To the extent this statement suggests that
Katzman told Ms. Greenspon that he
24 “understood this undertaking,” it effects a
selective waiver of attorney-client privilege.
25 U.S. v. Reyes, ___ F.R.D. ___, CR 06-0556
CRB, 2006 WL 3798073 at *8 (N.D. Cal.
26 Dec. 22, 2006) (internal quotation marks
omitted) (quoting Periman Corp. v. United
27 States, 665 F.2d 1214, 1221 (D.C. Cir. 1981)
(“Parties cannot be permitted to pick and
28 choose in their disclosure of protected
2
GOOGLE’S OBJECTIONS TO EVIDENCE SUBMITTED BY DEFENDANTS IN OPPOSITION TO MOTION
388974.01 FOR SANCTIONS AGAINST ABWF FOR SPOLIATION OF EVIDENCE
CASE NO. C 03-5340-JF (RS)
Case 5:03-cv-05340-JF Document 274 Filed 02/02/2007 Page 4 of 8

1 Objectionable Evidence Grounds for Objection


2 communications, waiving the privilege for
some and resurrecting the claim of
3 confidentiality to obstruct others.”). Thus,
this statement must either be struck, or it must
4 be deemed a full waiver. If deemed a full
waiver, Google hereby asserts the right to
5 compel production of all of ABWF’s
attorney-client privileged or work-product
6 documents on document preservation,
retention, search, collection, and destruction,
7 and to compel production of witnesses from
both ABWF and from ABWF’s outside
8 counsel concerning communications on those
subject.
9
Hearsay. To the extent this statement
10 suggests that Katzman told Ms. Greenspon
that he “understood this undertaking,” it is
11 hearsay. Fed. R. Evid. 802.
12 ¶17: “In conjunction with our late 2003 Lacks foundation. Ms. Greenspon lacks
meeting with Katzman, I witnessed Katzman personal knowledge to know whether
13 searching his computer for relevant Katzman was searching for “relevant”
documents, which he printed and turned over documents. Fed. R. Evid. 602. Conclusory
14 and argumentative. Civil Local Rule 7-5(b).
to me the same day as our visit to American
15 Blind.”

16 ¶17: “Joseph Charno turned over documents Lacks foundation. Ms. Greenspon lacks
from his computer and William Smith’s personal knowledge to know from where the
17 computer that same day.” documents Joseph Charno turned over came.
Fed. R. Evid. 602. Conclusory and
18 argumentative. Civil Local Rule 7-5(b).

19 ¶ 18: “Thereafter, he and other American Lacks foundation. Ms. Greenspon has not
Blind employees compiled materials that were laid a foundation for how she knew who
20 responsive to Google’s First Set of compiled materials and whether those
Interrogatories and First Set of Requests for employees knew which materials were
21 Production.” responsive. Fed. R. Evid. 602. Conclusory
and argumentative. Civil Local Rule 7-5(b).
22
¶19: “Because Katzman resigned from Lacks foundation. Ms. Greenspon has not
23 American Blind on May 18, 2006, other laid a foundation for how she knew who
American Blind employees, including but not compiled materials and whether those
24 limited to Jeffery Alderman, Michael Layne, employees knew which materials were
Nick Darrin, Gerald Curran and American responsive. Fed. R. Evid. 602. Conclusory
25 and argumentative. Civil Local Rule 7-5(b).
Blind’s new CEO following Katzman, Joel
Levine, compiled materials that were
26
responsive to Google’s Second Set of
27 Interrogatories and Second Set of Requests
for Production.”
28
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GOOGLE’S OBJECTIONS TO EVIDENCE SUBMITTED BY DEFENDANTS IN OPPOSITION TO MOTION
388974.01 FOR SANCTIONS AGAINST ABWF FOR SPOLIATION OF EVIDENCE
CASE NO. C 03-5340-JF (RS)
Case 5:03-cv-05340-JF Document 274 Filed 02/02/2007 Page 5 of 8

1 Objectionable Evidence Grounds for Objection


2 ¶20: “Prior to his resignation, there was no Lacks foundation. Ms. Greenspon lacks
threat by Katzman that he would take the personal knowledge to know whether there
3 materials at issue if he resigned and no reason was any threat or basis for suspicion. Fed. R.
to suspect Katzman would do something that Evid. 602. Conclusory and argumentative.
4 was in direct violation of his contractual or Civil Local Rule 7-5(b).
5 legal obligations to the company.”

6 ¶20: “It is my understanding, based on the Lacks foundation. Ms. Greenspon lacks
information contained in the pleadings and personal knowledge to know when Katzman
7 other papers on file in the lawsuit filed by took the information. Fed. R. Evid. 602.
American Blind against Katzman, that Conclusory and argumentative. Civil Local
8 Katzman took the information at issue from Rule 7-5(b).
American Blind within hours of his Hearsay. Fed. R. Evid. 802.
9 resignation.”
10
¶21: “Counsel for American Blind did not Lacks foundation. Ms. Greenspon lacks
11 know the extent of Katzman’s actions at the personal knowledge to testify to what all
time of his deposition on July 25, 2006. Prior “Counsel for American Blind” knew. Fed. R.
12 to Katzman’s deposition, it was only known Evid. 602. Conclusory and argumentative.
that he took corporate property, the return of Civil Local Rule 7-5(b).
13 the corporate property was demanded, and
Katzman had agreed to return the same.”
14
¶23: “On July 25, 2006, American Blind Lacks foundation. Ms. Greenspon lacks
15 believed Katzman had complied with all its personal knowledge to testify to what all of
requests and was not continuing to do American Blind believed. Fed. R. Evid. 602.
16 Conclusory and argumentative. Civil Local
anything contrary to the law or his contractual
obligations.” Rule 7-5(b).
17

18 ¶27: “With regard to Google’s claim that Lacks foundation. Ms. Greenspon lacks
American Blind comes to the Court with personal knowledge to know what American
19 unclean hands, upon receiving notification Blinds’ policy is, and what negative keywords
from a competitor or through American it has designated. Fed. R. Evid. 602.
20 Blinds’ own policing that one of its keyword- Conclusory and argumentative. Civil Local
Rule 7-5(b).
triggered advertisements appears when
21
another party’s trademark is input into the
22 Google search engine (through the broad
match feature or otherwise), American Blind
23 promptly requests that such search term be
denoted as a ‘negative keyword’ under
24 Google’s AdWords program. American
Blind has specifically designated as negative
25 keywords a number of its competitors’ marks,
including ‘Blinds To Go,’ ‘Just Blinds,’ ‘Star
26
Blinds,’ and ‘Select Blinds.’ It is American
27 Blind’s policy not to specify its competitor’s
trademarks as keywords in any of its
28
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GOOGLE’S OBJECTIONS TO EVIDENCE SUBMITTED BY DEFENDANTS IN OPPOSITION TO MOTION
388974.01 FOR SANCTIONS AGAINST ABWF FOR SPOLIATION OF EVIDENCE
CASE NO. C 03-5340-JF (RS)
Case 5:03-cv-05340-JF Document 274 Filed 02/02/2007 Page 6 of 8

1 Objectionable Evidence Grounds for Objection


2 advertising campaigns.”
3

4 The following objections are to Katzman’s Status Quo Declaration


5 Objectionable Evidence Grounds for Objection
6 ¶2: “For security purposes, I used a portable Lacks foundation. Paragraph 1 of the
hard drive that I transported daily to and from declaration states that Katzman “cannot recall
7 the office on which I stored all of my the specific name of any specific document,
documents and e-mails (both personal and file, program, information or data related to or
8 derived from things belonging to American
business). Over time, I used several different
Blinds that I erased or deleted.” Paragraph 2
9 hard drives. I also used my home computer states that he “never systematically or on any
system, as well as a third-party website, to regular basis transferred or deleted files.”
10 archive and backup company documents, files Paragraph 3 states that “[t]here are still files
and records.” on these [Katzman’s hard-drives, laptop and
11 home computer system] drives that have
neither been deleted nor returned to American
12 Blinds since I left the company, suggesting
that other documents had been deleted. Thus,
13 there is no foundation for Katzman to
categorically state that all of his personal and
14 business documents and e-mails were treated
in a systematic way. Moreover, in Katzman’s
15 prior declaration in his lawsuit against
ABWF, Katzman testified that he “retained no
16 information that could even conceivably be
considered proprietary or confidential,” so he
17 has no foundation to say that he stored all
documents. See Greenspon Declaration, Ex.
18 C (Docket Item No. 258-4) at ¶6. Fed. R.
Evid. 602. Conclusory and argumentative.
19 Civil Local Rule 7-5(b).
20 ¶4: “To the best of my knowledge and belief, Lacks foundation. Paragraph 1 of the
I did not delete or erase any business related declaration states that Katzman “cannot recall
21 the specific name of any specific document,
files on any computer either at work or at
home (including the laptop that I returned to file, program, information or data related to or
22 derived from things belonging to American
American Blind) that I do not have either on
Blinds that I erased or deleted.” Paragraph 2
23 my portable hard drives or on my home states that he “never systematically or on any
computer system.” regular basis transferred or deleted files.”
24 Paragraph 3 states that “[t]here are still files
on these [Katzman’s hard-drives, laptop and
25 home computer system] drives that have
neither been deleted nor returned to American
26 Blinds since I left the company, suggesting
that other documents had been deleted. Thus,
27 there is no foundation for Katzman to
categorically state that all of his personal and
28 business documents and e-mails were treated
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GOOGLE’S OBJECTIONS TO EVIDENCE SUBMITTED BY DEFENDANTS IN OPPOSITION TO MOTION
388974.01 FOR SANCTIONS AGAINST ABWF FOR SPOLIATION OF EVIDENCE
CASE NO. C 03-5340-JF (RS)
Case 5:03-cv-05340-JF Document 274 Filed 02/02/2007 Page 7 of 8

1 Objectionable Evidence Grounds for Objection


2 in a systematic way. Moreover, in Katzman’s
prior declaration in his lawsuit against
3 ABWF, Katzman testified that he “retained no
information that could even conceivably be
4 considered proprietary or confidential,” so he
has no foundation to say that he stored all
5 documents. See Greenspon Declaration, Ex.
C (Docket Item No. 258-4) at ¶6. Fed. R.
6 Evid. 602. Conclusory and argumentative.
Civil Local Rule 7-5(b).
7

9 The following objections are to the Katzman Spoliation Declaration.


10 Objectionable Evidence Grounds for Objection
11 ¶4: “To the best of my knowledge and belief, Lacks foundation. Improper lay opinion.
no electronic information or hard copy Katzman is not qualified and does not have
12 documents that might be responsive to personal knowledge of what documents are
Google’s discovery requests were destroyed considered “responsive.” Fed. R. Evid. 602.
13 Fed. R. Evid. 701. Conclusory and
or deleted.”
argumentative. Civil Local Rule 7-5(b).
14
Lacks foundation. Katzman lacks personal
15 knowledge to know what was saved or what
was destroyed from other people’s computers
16 at any period of time. This is particularly true
because ABWF did not have a document
17 retention policy. Fed. R. Evid. 602.
Conclusory and argumentative. Civil Local
18 Rule 7-5(b).
19 Lacks foundation. Paragraph 1 of the
declaration states that Katzman “cannot recall
20 the specific name of any specific document,
file, program, information or data related to or
21 derived from things belonging to American
Blinds that I erased or deleted.” Paragraph 2
22 states that he “never systematically or on any
regular basis transferred or deleted files.”
23 Paragraph 3 states that “[t]here are still files
on these [Katzman’s hard-drives, laptop and
24 home computer system] drives that have
neither been deleted nor returned to American
25 Blinds since I left the company, suggesting
that other documents had been deleted. Thus,
26 there is no foundation for Katzman to
categorically state that all of his personal and
27 business documents and e-mails were treated
in a systematic way. Moreover, in Katzman’s
28 prior declaration in his lawsuit against
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GOOGLE’S OBJECTIONS TO EVIDENCE SUBMITTED BY DEFENDANTS IN OPPOSITION TO MOTION
388974.01 FOR SANCTIONS AGAINST ABWF FOR SPOLIATION OF EVIDENCE
CASE NO. C 03-5340-JF (RS)
Case 5:03-cv-05340-JF Document 274 Filed 02/02/2007 Page 8 of 8

1 Objectionable Evidence Grounds for Objection


2 ABWF, Katzman testified that he “retained no
information that could even conceivably be
3 considered proprietary or confidential,” so he
has no foundation to say that no documents
4 were destroyed or deleted. See Greenspon
Declaration, Ex. C (Docket Item No. 258-4)
5 at ¶6. Fed. R. Evid. 602. Conclusory and
argumentative. Civil Local Rule 7-5(b).
6
¶5: “While I was President and CEO, to the Lacks foundation. Improper lay opinion.
7 best of my knowledge and belief, I did not Katzman is not qualified and does not have
have any unique electronic information on my personal knowledge of what documents are
8 desktop or laptop computers that was considered “responsive.” Fed. R. Evid. 602.
responsive to the Google discovery requests Fed. R. Evid. 701. Conclusory and
9 argumentative. Civil Local Rule 7-5(b).
that other employees at American Blind
10 would not have also had.” Lacks foundation. Katzman lacks personal
knowledge to know what was saved or what
11 was destroyed from other people’s computers
at any period of time. This is particularly true
12 because ABWF did not have a document
retention policy. Fed. R. Evid. 602.
13 Conclusory and argumentative. Civil Local
Rule 7-5(b).
14
¶6: “Following my resignation, I did not Lacks foundation. Improper lay opinion.
15 knowingly delete or destroy any electronic Katzman is not qualified and does not have
information or hard copy documents that were personal knowledge of what documents are
16 responsive to Google’s discovery requests.” considered “responsive.” Fed. R. Evid. 602.
Fed. R. Evid. 701. Conclusory and
17 argumentative. Civil Local Rule 7-5(b).
18

19 Dated: February 2, 2007 KEKER & VAN NEST, LLP


20

21
By: /s/ Ajay S. Krishnan
22 Ajay S. Krishnan
Attorneys for Plaintiff and Counter-
23 Defendant GOOGLE INC.
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25

26

27

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GOOGLE’S OBJECTIONS TO EVIDENCE SUBMITTED BY DEFENDANTS IN OPPOSITION TO MOTION
388974.01 FOR SANCTIONS AGAINST ABWF FOR SPOLIATION OF EVIDENCE
CASE NO. C 03-5340-JF (RS)