Digital Envoy Inc., v. Google Inc., Doc.

303
Case 5:04-cv-01497-RS Document 303 Filed 09/08/2005 Page 1 of 5

1 DAVID H. KRAMER, State Bar No. 168452 (dkramer@wsgr.com)

DAVID L. LANSKY, State Bar No. 199952 (dlansky@wsgr.com)
2 WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
3 650 Page Mill Road
Palo Alto, CA 94304-1050
4 Telephone: (650) 493-9300
Facsimile: (650) 565-5100
5
Attorneys for Defendant/Counterclaimant
6 Google Inc.

8 UNITED STATES DISTRICT COURT

9 NORTHERN DISTRICT OF CALIFORNIA

10 SAN JOSE DIVISION

11

12 DIGITAL ENVOY, INC., ) CASE NO.: C 04 01497 RS

)
13 Plaintiff/Counterdefendant, )
) GOOGLE INC.’S OBJECTION TO
14 v. ) EVIDENCE SUBMITTED IN
) OPPOSITION TO MOTION FOR
15 ) PARTIAL SUMMARY JUDGMENT
GOOGLE INC., ) REGARDING DIGITAL ENVOY,
16 ) INC.’S DAMAGES CLAIMS
Defendant/Counterclaimant. )
17 )
) Judge: Hon. Richard Seeborg
18 ) Courtroom: 4, 5th Floor
) Date: September 21, 2005
19 ) Time: 9:30 a.m.
)
20 )

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22 PUBLIC VERSION OF OBJECTION TO EVIDENCE

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2720027_1.DOC
OBJECTION TO EVIDENCE IN OPPOSITION TO
MOTION FOR PARTIAL SUMMARY JUDGMENT
RE DIGITAL ENVOY INC.’S DAMAGES CLAIMS
CASE NO.: 04 01497 RS
Dockets.Justia.com
 Case 5:04-cv-01497-RS Document 303 Filed 09/08/2005 Page 2 of 5

1 Google Inc. (“Google”) objects to and moves to strike Exhibits D, E, F, G, H, I, J and M

2 to the Declaration of Robert J. Waddell, Jr. in Support of Digital Envoy, Inc.’s Opposition to

3 Google’s Motion for Partial Summary Judgment re: Damages Issues (the “Waddell Declaration”)

4 I. ARGUMENT

5 A. Testimony Offered In Opposition To Summary Judgment Must Set Forth

Facts That Would Be Admissible In Evidence
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7 On a motion for summary judgment, “[s]upporting and opposing affidavits shall be made

8 on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall

9 show affirmatively that the affiant is competent to testify to the matters stated therein.” Fed. R.

10 Civ. P. 56(e); Conoco Inc. v. Dept. of Energy, 99 F.3d 387, 394 (Fed. Cir. 1997) (vacating

11 summary judgment based on inadmissible evidence). Hearsay not within any exception is not

12 admissible. Fed. R. Evid. 802. Inadmissible evidence, in turn, may not be used to support

13 summary judgment. Fed. R. Civ. P. 56(e). Finally, this Court’s Local Rules confirm that non-

14 complying declarations may be stricken:

15 An affidavit or declarations may contain only facts, must conform as much as

possible to the requirements of FRCivP 56(e), and must avoid conclusions and
16 argument. Any statement made upon information or belief must specify the basis
therefor. An affidavit or declaration not in compliance with this rule may be
17 stricken in whole or in part.

18 Civil L.R. 7-5(b).

19 B. Several Exhibits To The Waddell Declaration Are Inadmissible

20 Digital Envoy has cavalierly disregarded the rules of evidence in submitting various

21 exhibits to the Court in opposition to Google’s motion for partial summary judgment. As

22 described below, admission of these exhibits would be improper for several reasons.

23 Exhibit D -F

24 Exhibits D through F have not been properly authenticated and are thus inadmissible.

25 See Fed. R. Evid. 901(a). These website printouts have not been produced in discovery nor has

26 there been any testimony regarding these exhibits. “Although the documents bear the URL

27 address and date stamp, they are improperly authenticated by Plaintiffs’ declaration. Printouts

28 2720027_1.DOC

OBJECTION TO EVIDENCE IN OPPOSITION TO -1-

MOTION FOR PARTIAL SUMMARY JUDGMENT
RE DIGITAL ENVOY INC.’S DAMAGES CLAIMS
CASE NO.: 04 01497 RS
 Case 5:04-cv-01497-RS Document 303 Filed 09/08/2005 Page 3 of 5

1 from a web site do not bear the indicia of reliability demanded for other self-authenticating

2 documents under Fed.R.Evid. 902. To be authenticated, some statement or affidavit from

3 someone with knowledge is required; for example, [the posting site’s] web master or someone

4 else with personal knowledge would be sufficient.” In re Homestore.com, Inc. Sec. Litig., 347 F.

5 Supp. 2d 769, 782-83 (C.D. Cal. 2004) (finding “exhibits [] not properly authenticated and [thus]

6 inadmissible for purposes of summary judgment.”)

7 Moreover, these exhibits are classic examples of hearsay and are inadmissible because

8 they are hearsay not within any exception to the rule. Fed. R. Civ. P. 56(e); Fed. R. Evid. 802.

9 Exhibits D through F are copies of internet articles discussing Google, and Exhibit D purports to

10 quote Google. Digital Envoy improperly relies on these exhibits to establish the truth of the

11 matters asserted within them. See Opp. at 5, 22. The exhibits are therefore hearsay. See Fed. R.

12 Evid. 801 and 802. They do not fit within any hearsay exception. See Fed. R. Evid. Rule 803,

13 804, and 807. Accordingly, Exhibits D through F may not be considered on summary judgment.

14 Exhibits G - J

15 Exhibits G through J are likewise inadmissible because they have not been properly

16 authenticated. See Fed. R. Evid. 901(a); In re Homestore.com, 347 F. Supp. 2d at 782-83. Like

17 Exhibits D through F, these website printouts were not produced in the course of discovery and,

18 consequently, there has been no testimony regarding these exhibits. Accordingly, they are not

19 properly authenticated. Id. Additionally, the exhibits are dated in August and September 2005 –

20 well after the events at issue here – and are accordingly irrelevant and therefore inadmissible

21 pursuant to Federal Rule of Evidence 402.

22 Moreover, Exhibits G, I and J are inadmissible hearsay to the extent that Digital Envoy

23 relies on quotes from AdSense customers as to why they were purportedly attracted to Google.

24 See Fed. R. Evid. 801 and 802. Not falling within any exceptions tot he Hearsay rule, the

25 exhibits cannot be considered on summary judgment. See Fed. R. Evid. Rule 801, 802, 803, 804,

26 and 807.

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MOTION FOR PARTIAL SUMMARY JUDGMENT
RE DIGITAL ENVOY INC.’S DAMAGES CLAIMS
CASE NO.: 04 01497 RS
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1 Additionally, such customer quotes are irrelevant. Whether customers liked Google’s

2 ability to locally target advertisements is simply not probative evidence that these customers

3 would not have signed up for AdSense (or that they would have paid less to Google) but for

4 Google’s use of Digital Envoy’s data. Consequently, the exhibits run afoul of Federal Rule of

5 Evidence 402.

6 Finally, Digital Envoy’s reliance on references in Exhibits G through J regarding locally

7 targeted advertisements is misleading because such local targeting was not necessarily related to

8 Google’s use Digital Envoy’s technology. As noted in Google’s Reply, Google employed

9 several different mechanisms to locally target advertising. See Declaration of Mark Rose at 3,

10 n.2. Due to their lack of relevance, the exhibits should be excluded under Federal Rule of

11 Evidence 402.

12 Exhibit M

13 Exhibit M is inadmissible because Digital Envoy has failed to lay any foundation, let

14 alone a proper foundation, for its admission. See Fed. R. Evid. 901. Further, there is no support

15 for Digital Envoy’s erroneous conclusion that Exhibit M “demonstrated that geo-targeted

16 advertisements generated a 117 percent increase in ‘click-thrus’ over non-geo-targeted

17 advertisements.” Opp. at 22. Digital Envoy apparently draws this conclusion from one slide –

18 apparently a case study demonstrating that for a single customer during a test using a single

19 advertisement for a period of time, geotargeting at a local level was more advantageous for that

20 time than geotargeting at a national or metro level. See Ex. M at GOOG 012026. It is not

21 correct to claim, as Digital Envoy does in its brief, that the slide shows the effect of geotargeting

22 generally, 1 or that it shows the difference between geo-targeted ads and non-geotargeted

23 advertisements. Moreover, there is no foundation for the implicit claim by Digital Envoy, that

24 the geotargeting used in this test had anything to do with Digital Envoy.

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Digital Envoy also intentionally fails to note that the same document contains a case study
26 of a customer that experienced a 12% decrease in click thrus as a result of utilizing local geo-
targeting criteria instead of national or metro level geo-targeting. Id. at GOOG 012025.
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OBJECTION TO EVIDENCE IN OPPOSITION TO -3-

MOTION FOR PARTIAL SUMMARY JUDGMENT
RE DIGITAL ENVOY INC.’S DAMAGES CLAIMS
CASE NO.: 04 01497 RS
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1 Digital Envoy’s “testimony” in its brief concerning the document is unfounded. Without

2 the proper foundation the document is irrelevant. It should, therefore, be excluded under Fed. R.

3 Evid. 402.

4 II. CONCLUSION

5 For the foregoing reasons, Google Inc. objects to and respectfully requests the Court to

6 strike Exhibits D, E, F, G, H, I, J and M to the Waddell Declaration.

8 Respectfully Submitted,

9 Dated: September 8, 2005 WILSON SONSINI GOODRICH & ROSATI

Professional Corporation
10

11 By: /s/ David L. Lansky

David L. Lansky
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Attorneys for Defendant/Counterclaimant
13 Google Inc.

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28 2720027_1.DOC

OBJECTION TO EVIDENCE IN OPPOSITION TO -4-

MOTION FOR PARTIAL SUMMARY JUDGMENT
RE DIGITAL ENVOY INC.’S DAMAGES CLAIMS
CASE NO.: 04 01497 RS