Case 3:20-cv-06754-WHA Document 830 Filed 06/29/23 Page 1 of 7
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`QUINN EMANUEL URQUHART & SULLIVAN, LLP
` Sean Pak (Bar No. 219032)
` seanpak@quinnemanuel.com
` Melissa Baily (Bar No. 237649)
` melissabaily@quinnemanuel.com
` James Judah (Bar No. 257112)
` jamesjudah@quinnemanuel.com
` Lindsay Cooper (Bar No. 287125)
` lindsaycooper@quinnemanuel.com
` Iman Lordgooei (Bar No. 251320)
` imanlordgooei@quinnemanuel.com
`50 California Street, 22nd Floor
`San Francisco, California 94111-4788
`Telephone:
`(415) 875-6600
`Facsimile:
`(415) 875-6700
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` Marc Kaplan (pro hac vice)
` marckaplan@quinnemanuel.com
`191 N. Wacker Drive, Ste 2700
`Chicago, Illinois 60606
`Telephone:
`(312) 705-7400
`Facsimile:
`(312) 705-7401
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`Attorneys for GOOGLE LLC
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN FRANCISCO DIVISION
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`SONOS, INC.,
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`Plaintiff and Counter-
`Defendant,
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`GOOGLE LLC,
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`vs.
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`Defendant and Counter-
`Claimant.
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`-1-
`Case No. 3:20-cv-06754-WHA
`GOOGLE’S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF THE KWASIZUR
`DECLARATION
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` Case No. 3:20-cv-06754-WHA
`Consolidated with Case No. 3:21-cv-07559-
`WHA
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`GOOGLE LLC’S NOTICE OF MOTION
`AND MOTION TO STRIKE PORTIONS
`OF THE DECLARATION OF ALAINA
`KWASIZUR IN SUPPORT OF SONOS,
`INC.’S MOTION FOR PERMANENT
`INJUNCTION
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`August 10, 2023
`Date:
`Location: Courtroom 12, 19th Floor
`Judge:
` Hon. William Alsup
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`Case 3:20-cv-06754-WHA Document 830 Filed 06/29/23 Page 2 of 7
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`NOTICE OF MOTION AND MOTION
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`TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
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`PLEASE TAKE NOTICE that on August 10, 2023 at 8:00 a.m., or as soon thereaf ter as
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`the matter may be heard, in Courtroom 12, 19 th Floo r of the Sa n Francisc o Courth ou se at
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`450 Golden Gate Avenue, San Francisco, California, before the Honorable William H. Alsup,
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`Defendant Google LLC (“Google”) will and hereby does move for an order striking portions of
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`the Declaration of Alaina Kwasizur in Support of Sonos’s Motion for Permanent Injunction
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`(“Kwasizur Declaration”) (Dkt. 821). Specifically, certain portions of the Kwasizur Declaration
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`should be stricken because: (1) the testimony is based on hearsay, (2) Ms. Kwazisur lacks personal
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`knowledge as required by Fed. R. Evid. 602, such that the testimony is speculative and unsupported
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`opinion, conclusions and argument, and (3) the Declaration fails to lay the adequate foundation to
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`establish that Ms. Kwasizur is qualified to establish the matters asserted in the declaration as fact
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`such that certain portions constitute improper lay witness opinion testimony under Fed. R. Civ. P.
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`701. Attached as Exhibit 1 is the version of the Kwasizur Declaration with the portions which
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`Google seeks to strike highlighted.
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`This Motion is based on all pleadings, exhibits, and records in this action, and such other
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`papers, evidence, and/or argument as may be submitted to the Court in connection with this Motion
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`or that the Court may take notice or otherwise consider
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`DATED: June 29, 2023
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`QUINN EMANUEL URQUHART & SULLIVAN,
`LLP
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`By
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`/s Sean Pak
`Sean Pak
`Melissa Baily
`James D. Judah
`Lindsay Cooper
`Marc Kaplan
`Iman Lordgooei
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`Attorneys for GOOGLE LLC
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`-i-
`Case No. 3:20-cv-06754-WHA
`GOOGLE’S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF THE KWASIZUR
`DECLARATION
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`Case 3:20-cv-06754-WHA Document 830 Filed 06/29/23 Page 3 of 7
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`Based on a finding of infringement of claim 1 of the ’885 patent, Sonos has filed a motion
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`seeking broad injunctive relief prohibiting Google from not only “making, using, selling, offering
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`to sell, or importing into the United States” the accused products and “assisting others” in doing so,
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`but also a host of other activities related to the those products, including advertising, marketing,
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`promoting, providing software updates, writing or updating documentation, and even providing
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`customer service or technical support. Dkt. 820-5. Sonos’s sweeping request is based in large part
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`on a declaration from its General Counsel, Alaina Kwasizur, wherein Ms. Kwasizur purports to
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`make statements based on “personal knowledge, unless otherwise noted.” Dkt. 821 ¶ 1 (“Kwasizur
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`Declaration”). However, as discussed further below, certain paragraphs of the Kwasizur Declaration
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`contain statements that (1) are based on inadmissible hearsay, (2) are speculative, conclusory, and
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`argumentative, and for which Ms. Kwazisur lacks personal knowledge as required by Fed. R. Evid.
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`602, and (3) constitute improper lay witness opinion testimony under Fed. R. Evid. 701 because Ms.
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`Kwasizur lacks first-hand knowledge such that she is unqualified to establish the matters asserted
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`in the declaration as fact. Accordingly, the Court should strike paragraphs 7, 9, 10, 11, 15, 16, 17,
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`23, and portions of paragraph 13 and 14 of the Kwasizur Declaration.
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`I.
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`LEGAL STANDARD
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`Federal Rule of Evidence 602 states that “[a] witness may not testify to a matter unless
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`evidence is introduced to support a finding that the witness has personal knowledge of the matter.”
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`Fed. R. Evid. 602.
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`Federal Rule of Evidence 701 limits lay witness opinion testimony to “those opinions or
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`inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear
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`understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on
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`scientific, technical, or other specialized knowledge within the scope of Rule 702.”
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`Local Rule 7-5(b) also states a declaration “may contain only facts . . . and must avoid
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`conclusions and argument.” A declaration that does not comply with these requirements “may be
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`stricken in whole or in part.” L.R. 7-5(b).
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`-1-
`Case No. 3:20-cv-06754-WHA
`GOOGLE’S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF THE KWASIZUR
`DECLARATION
`
`

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`Case 3:20-cv-06754-WHA Document 830 Filed 06/29/23 Page 4 of 7
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`II.
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`ARGUMENT
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`A.
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`The Court Should Strike Statements Based on Hearsay
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`The Court should strike Paragraphs 7, 9, 10, and 17 of the Kwasizur Declaration because
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`they are based on hearsay derived from news articles and statements of an out-of-court declarant.
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`Paragraphs 7 and 9 discuss statements from “multiple news outlets and consumer review
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`sites” that opine on the competitive relationship between Google and Sonos, and paragraph 10 is a
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`statement based on those websites. For example, Ms. Kwasizur quotes an article from a website
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`named “The Next Web” which asserts that Google’s Nest Audio product is “Google’s clearest
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`attempt at a Sonos competitor yet.” Dkt. 821 ¶ 7; Dkt. 821-4. She offers this statement for the truth
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`of the matter asserted, yet the author of the article has not testified in this case, nor does Ms.
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`Kwasizur provide any basis for the reliability of this speculation regarding Google’s intent in
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`releasing its product. Because this testimony is “necessarily derive[d] from the contents of
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`documents or the statements of out-of-court-declarants, it is hearsay.” Allen v. Honeywell Ret.
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`Earnings Plan, No. CV-04-424-PHX-ROS, 2005 WL 8160551, at *3 (D. Ariz. July 27, 2005).
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`Federal Rule 602 “prevent[s] a witness from testifying to the subject matter of a hearsay statement,
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`as he has no personal knowledge of it.” Id. (citing Fed. R. Evid. 602, Committee Note) (cleaned
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`up).
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`Similarly, paragraph 17 of the Kwasizur Declaration includes quotations from Sonos Chief
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`Legal Officer Eddie Lazarus’s written testimony before Congress regarding “Google’s strategy . . .
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`to sell products below cost.” Dkt. 821 ¶ 17. Again, these are out-of-court statements offered for the
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`truth of the matter asserted and thus are hearsay for which Ms. Kwasizur has no personal knowledge.
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`See Fed. R. Evid. 602. Even if some hearsay exception applied to Mr. Lazarus’s statements (which
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`Sonos has not demonstrated), his testimony would still be improper. With no evidence of personal
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`knowledge, Mr. Lazarus makes sweeping and conclusory accusations regarding Google’s supposed
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`business model that are wholly unsubstantiated. Dkt. 821 ¶ 17; Dkt. 821-8 (“[T]hey make their
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`money by protecting the dominance of their monopoly products and from the rich trove of personal
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`data that these microphone-enabled products vacuum up from consumers. The speakers are mostly
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`just a conduit to their dominant advertising and ecommerce platforms—and so they can take the
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`Case No. 3:20-cv-06754-WHA
`GOOGLE’S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF THE KWASIZUR
`DECLARATION
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`Case 3:20-cv-06754-WHA Document 830 Filed 06/29/23 Page 5 of 7
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`profits from those platforms and subsidize the speakers themselves.”). These self-serving and
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`argumentative statements do not identify facts and should also be stricken. L.R.-5(b) (declarations
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`“must avoid conclusions and argument”).
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`B.
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`The Court Should Strike Statements For Which Ms. Kwasizur Has No
`Personal Knowledge
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`In a section titled “Google Sells Its Products At A Loss To Secure Households,” Ms.
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`Kwasizur purports to have “personal knowledge” about Google’s business. Dkt. 821 ¶¶ 1, 15, 16.
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`It is unclear how Ms. Kwasizur—an in-house attorney for Sonos who has never worked at Google—
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`would have any “personal knowledge” or understanding of Google’s business. See, e.g. id. ¶ 15
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`(“Google seeks to monetize their customers through the sale of additional services, rather than the
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`speakers themselves”[.]). Nor does she provide an evidentiary foundation to show that she has
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`“personal knowledge” regarding the unsubstantiated and argumentative statements she makes in
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`paragraphs 15 and 16 of this section. See, e.g., id. ¶ 16 (accusing Google of engaging in “aggressive
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`monetization of customer data”). It is not enough for Ms. Kwasizur to merely assert that she has
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`personal knowledge of the facts stated; she is required to “state facts showing . . . her connection to
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`the matters stated, establishing the source of the information.” Brew v. City of Emeryville, 138 F.
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`Supp. 2d 1217, 1227 (N.D. Cal. 2001); Allen, 2005 WL 8160551, at *3 (striking declaration because
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`“[d]efendants have not introduced evidence sufficient to support a finding of personal knowledge”).
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`In addition, “[l]ay witness opinions must be based on direct perception of the event, not on hearsay
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`or mere speculation.”
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` Fed. Trade Comm'n v. Publishers Bus. Servs.,
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`Inc., No.
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`208CV00620PMPPAL, 2009 WL 10692838, at *4 (D. Nev. Oct. 30, 2009).
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`Because paragraphs 15 and 16 are lacking foundation, speculative, and argumentative, and
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`form conclusions rather than state facts, the Court should strike them from the record.
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`C.
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`The Court Should Strike Statements That Are Improper Expert Opinion
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`The Court should strike portions of paragraph 13 and 14 and the entirety of paragraphs 11,
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`15, and 23 as impermissible expert opinion. Federal Rule of Evidence 701 provides that a non-
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`expert witness must limit opinion testimony to that which is “rationally based on the witness’s
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`perception” and “not based on scientific, technical, or other specialized knowledge within the scope
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`Case No. 3:20-cv-06754-WHA
`GOOGLE’S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF THE KWASIZUR
`DECLARATION
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`Case 3:20-cv-06754-WHA Document 830 Filed 06/29/23 Page 6 of 7
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`of Rule 702.” Fed. R. Evid. 701. Ms. Kwasizur has not complied with this rule.
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`First, Ms. Kwasizur attempts to give improper expert testimony regarding the behavior of
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`consumers. She speculates as to the reasons that “customers chose Google over Sonos” (Dkt. 821
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`¶ 11), opines on an alleged “lock-in effect” wherein for “a consumer [who] purchases a Google
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`smart speaker, . . . it is more likely that subsequent smart speaker purchases from that same consumer
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`would be of Google smart speaker devices, as opposed to smart speaker devices of another brand,
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`such as Sonos” (id. ¶ 13), and suggests this “effect” means that “if Sonos loses out on an initial sale
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`of a speaker product to a new household, then Sonos likely loses out on the sale of at least three
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`devices to that household” (Id. ¶ 14). Ms. Kwasizur has not laid any foundation as to how her
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`testimony regarding the “likely” behavior of consumers who purchase Google speakers or the effect
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`of Google’s product prices on Sonos’s speaker products is based on “first-hand knowledge or
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`observation.” Tyco Thermal Controls LLC v. Redwood Industrials, No. C 06-07164 JF (PVT), 2010
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`WL 1526471, at *4 (N.D. Cal. Apr. 15, 2010) (striking declaration as violating Rule 701’s
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`requirement that “lay opinion be rationally based on the perception of the witness”). Nor has she
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`explained how statements regarding the likelihood that Sonos will lose sales of multiple devices is
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`based on her “perception” as a lay person. Id.1
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`Second, Ms. Kwasizur also asserts that Sonos “and other market participants” can meet
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`demand if the Court enjoins Google products. Dkt. 821 ¶ 23. Again without any foundation as to
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`how she would have “first-hand knowledge or observation” of this information as Sonos’s in-house
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`attorney, Ms. Kwasizur states in a conclusory manner that “Sonos has the manufacturing and
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`supplier capacity to make up for much of the demand for Google’s media players”—despite the fact
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`there are several accused products for which Sonos makes no similar product. Dkt. 829-1. Worse,
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`Ms. Kwasizur appears to speak for other companies that are not even party to this litigation,
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`suggesting that they could increase production to satisfy added demand as well. Dkt. 821 ¶ 23
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`1 Sonos’s expert conceded he was not aware of any lost sales, Sonos dropped its lost profits
`theory, and Sonos failed to adduce any evidence of lost sales at trial. See Dkt. 591-10; Dkt. 591-9
`at 16:20-24, 162:25-163:18. It is improper for Sonos to now attempt to re-assert this same theory
`through conclusory statements by Ms. Kwasizur.
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`Case No. 3:20-cv-06754-WHA
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`GOOGLE’S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF THE KWASIZUR
`DECLARATION
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`Case 3:20-cv-06754-WHA Document 830 Filed 06/29/23 Page 7 of 7
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`(“Amazon and Apple also produce comparable speakers that could satisfy consumer demand for
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`smart speakers.”). Ms. Kwasizur is not an economist qualified to discuss supply and demand in the
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`smart speaker market, nor does she purport to have personal knowledge of Sonos’s manufacturing
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`capacities. Because “lay opinion testimony is ‘not to provide specialized explanations or
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`interpretations that an untrained layman could not make if perceiving the same acts or events,’” the
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`Court should strike paragraph 23 as well. Fresenius Med. Care Holdings, Inc. v. Baxter Int’l, Inc.,
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`No. 597, 2006 WL 1330002, at *3 (N.D. Cal. May 15, 2006)
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`CONCLUSION
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`Google respectfully requests that the Court strike paragraphs 7, 9, 10, 11, 15, 16, 17, 23, and
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`portions of paragraph 13 and 14 of the Kwasizur Declaration.
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`DATED: June 29, 2023
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`QUINN EMANUEL URQUHART & SULLIVAN,
`LLP
`
`/s Sean Pak
`Sean Pak
`Melissa Baily
`James D. Judah
`Lindsay Cooper
`Marc Kaplan
`Iman Lordgooei
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`Attorneys for GOOGLE, LLC
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`By
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`
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`-5-
`Case No. 3:20-cv-06754-WHA
`GOOGLE’S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF THE KWASIZUR
`DECLARATION
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