Case 3:20-cv-06754-WHA Document 841 Filed 07/13/23 Page 1 of 15
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`CLEMENT SETH ROBERTS (SBN 209203)
`croberts@orrick.com
`BAS DE BLANK (SBN 191487)
`basdeblank@orrick.com
`ALYSSA CARIDIS (SBN 260103)
`acaridis@orrick.com
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`The Orrick Building
`405 Howard Street
`San Francisco, CA 94105-2669
`Telephone:
`+1 415 773 5700
`Facsimile:
`+1 415 773 5759
`
`SEAN M. SULLIVAN (pro hac vice)
`sullivan@ls3ip.com
`J. DAN SMITH (pro hac vice)
`smith@ls3ip.com
`MICHAEL P. BOYEA (pro hac vice)
`boyea@ls3ip.com
`COLE B. RICHTER (pro hac vice)
`richter@ls3ip.com
`LEE SULLIVAN SHEA & SMITH LLP
`656 W Randolph St., Floor 5W
`Chicago, IL 60661
`Telephone:
`+1 312 754 0002
`Facsimile:
`+1 312 754 0003
`Attorneys for Sonos, Inc.
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA,
`SAN FRANCISCO DIVISION
`
`SONOS, INC.,
`Plaintiff and Counter-defendant,
`v.
`GOOGLE LLC,
`Defendant and Counter-claimant.
`
`
`
`
`
`
`
`Case No. 3:20-cv-06754-WHA
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`Consolidated with
`Case No. 3:21-cv-07559-WHA
`SONOS, INC.’S OPPOSITION TO
`GOOGLE’S MOTION TO STRIKE
`Date: August 10, 2023
`Time: 8:00 a.m.
`Judge: Hon. William Alsup
`Courtroom: 12, 19th Floor
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`SONOS’S OPP. TO GOOGLE’S MOTION TO STRIKE
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`Case 3:20-cv-06754-WHA Document 841 Filed 07/13/23 Page 2 of 15
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`TABLE OF CONTENTS
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`Page(s)
`INTRODUCTION ................................................................................................................... 1
`I.
`II. LEGAL STANDARD .............................................................................................................. 1
`III. ARGUMENT ........................................................................................................................... 2
`A. Google’s Overbroad Motion To Strike Alleged Hearsay Should Be Denied. .................. 2
`B. Google Has Already Admitted That Ms. Kwasizur’s Statements Are Correct................. 5
`C. Ms. Kwasizur Does Not Offer Expert Opinion ................................................................. 7
`IV. CONCLUSION ...................................................................................................................... 12
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`Case 3:20-cv-06754-WHA Document 841 Filed 07/13/23 Page 3 of 15
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`Cases
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`TABLE OF AUTHORITIES
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`Page(s)
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`Allen v. Honeywell Ret. Earnings Plan,
`No. CV-04-424-PHX-ROS, 2005 WL 8160551 (D. Ariz. July 27, 2005) ............... 2, 6, 9, 10, 11
`
`Brigadier Roofing, Inc. v. Roofers’ Unions Welfare Tr. Fund,
`No. 14 CV 10496, 2017 WL 2834533 (N.D. Ill. June 30, 2017) ............................................. 2, 3
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`Edwards v. Toys “R” Us,
`527 F. Supp. 2d 1197 (C.D. Cal. 2007) ............................................................................. 1, 6, 11
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`Fresenius Med. Care Holdings, Inc. v. Baxter Int’l, Inc.,
`No. 597, 2006 WL 1330002 (N.D. Cal. May 15, 2006) ............................................................ 12
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`Interwoven, Inc. v. Vertical Computer Sys.,
`No. CV 10-04645 RS, 2013 WL 3786633 (N.D. Cal. July 18, 2013) ................................... 2, 12
`
`Lankford v. Taylor,
`No. CV-17-02797-PHX-DWL, 2020 WL 6395294 (D. Ariz. Nov. 2, 2020) .............................. 3
`
`Self-Realization Fellowship Church v. Ananda Church of Self-Realization,
`206 F.3d 1322 (9th Cir. 2000) ...................................................................................................... 1
`
`Tyco Thermal Controls LLC v. Redwood Industrials,
`No. C 06-07164 JF (PVT), 2010 WL 1526471 (N.D. Cal. Apr. 15, 2010) ....................... 8, 9, 10
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`Other Authorities
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`Fed. R. Evid. 402 ........................................................................................................................... 7
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`Fed. R. Evid. 403 ........................................................................................................................... 7
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`Fed. R. Evid. 602 ................................................................................................................... 1, 2, 8
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`Fed. R. Evid. 701 ....................................................................................................... 1, 2, 7, 11, 12
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`Fed. R. Evid. 702 ................................................................................................................. 1, 2, 11
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`Fed. R. Evid. 801 ........................................................................................................................... 1
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`L.R. 7-5(b) ..................................................................................................................................... 4
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`I.
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`II.
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`INTRODUCTION
`Google’s motion to strike lacks merit. Google asks the Court to strike broad swaths of
`Ms. Kwasizur’s declaration as hearsay without identifying any specific hearsay issue. Google
`also asks the Court to strike statements made by, relied upon, or offered by Ms. Kwasizur that are
`nearly identical in form, subject, and scope to statements made by, relied upon, or offered by
`Google’s proffered declarants. Finally, Google asks the Court to strike as “unsupported”
`declaration statements based on Ms. Kwasizur’s testimony at trial—testimony that Google fails to
`even acknowledge, much less address.
`The Court should deny Google’s motion in its entirety.
`LEGAL STANDARD
`Personal knowledge. Under Rule 602, a lay “witness may testify to a matter only if
`evidence is introduced sufficient to support a finding that the witness has personal knowledge of
`the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony.”
`Fed. R. Evid. 602. A declarant’s “[p]ersonal knowledge can be inferred from [the] affiant’s
`position.” Self-Realization Fellowship Church v. Ananda Church of Self-Realization, 206 F.3d
`1322, 1330 (9th Cir. 2000). And where “[p]ersonal knowledge can be inferred from a declarant’s
`position within a company or business,” the party seeking to strike must “offer[] … evidence that
`rebuts the inference of personal knowledge flowing from [the declarant’s] position.” Edwards v.
`Toys “R” Us, 527 F. Supp. 2d 1197, 1201-02 (C.D. Cal. 2007) (citing In re Kaypro, 218 F.3d
`1070, 1075 (9th Cir. 2000), inter alia).
`Hearsay. Hearsay is “a statement that” “the declarant does not make while testifying at
`the current trial or hearing; and [that] a party offers in evidence to prove the truth of the matter
`asserted in the statement.” Fed. R. Evid. 801(c).
`Lay opinion testimony. “If a witness is not testifying as an expert, testimony in the form
`of an opinion is limited to one that is: (a) rationally based on the witness’s perception; (b) helpful
`to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not
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`based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” Fed.
`R. Evid. 701.
`Motions to strike. Because “motions to strike are generally disfavored,” “any doubt as to
`the propriety of a statement should be resolved in favor of the party opposing the motion.”
`Interwoven, Inc. v. Vertical Computer Sys., No. CV 10-04645 RS, 2013 WL 3786633, at *11
`(N.D. Cal. July 18, 2013).
`III. ARGUMENT
`A.
`Google’s Overbroad Motion To Strike Alleged Hearsay Should Be Denied.
`Google asks the Court to strike Paragraphs 7, 9, 10, and 17 of the Kwasizur Declaration,
`arguing that each of these paragraphs is “based on hearsay derived from news articles and
`statements of an out-of-court declarant.” Mot. 2. Google argues that the Court should strike this
`testimony because it “is ‘necessarily derive[d] from the contents of documents or the statements
`of out-of-court-declarants,’” and that Rule 602 “prevent[s] a witness from testifying to the subject
`matter of a hearsay statement, as he has no personal knowledge of it.” Id. (quoting Allen v.
`Honeywell Ret. Earnings Plan, No. CV-04-424-PHX-ROS, 2005 WL 8160551, at *3 (D. Ariz.
`July 27, 2005)). But Google seeks to strike whole paragraphs without even identifying the
`alleged hearsay within those passages. To the extent that Google bothers to identify any specific
`statements with which it takes issue, it makes an unsupported assumption that the statements are
`being offered for the truth of what is asserted. And while Google challenges Ms. Kwasizur’s
`quotation of Congressional testimony, Google has already effectively admitted the accuracy of
`the relevant statements from the testimony in question—making any “hearsay” issue moot.
`In paragraph 7 of her declaration, Ms. Kwasizur explains that “multiple news outlets and
`consumer review sites directly compare Sonos and Google products.” She then provides three
`examples of articles that make that comparison. But Ms. Kwasizur’s own observation that third
`parties make a comparison is not an out-of-court statement offered for the truth of the matter
`asserted—it is a statement by the declarant about what other parties do. And to the extent that
`Google’s objection and argument turns on one quote from the three articles asserting that Google
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`and Sonos do in fact compete, Google’s motion to strike is overbroad. See, e.g., Brigadier
`Roofing, Inc. v. Roofers’ Unions Welfare Tr. Fund, No. 14 CV 10496, 2017 WL 2834533, at *2
`(N.D. Ill. June 30, 2017) (“This motion to strike is overbroad and denied.”); Lankford v. Taylor,
`No. CV-17-02797-PHX-DWL, 2020 WL 6395294, at *3 (D. Ariz. Nov. 2, 2020) (denying motion
`in limine “because it is overbroad”). Indeed, Google identifies no hearsay problem whatsoever
`with Exhibits B or C to Ms. Kwasizur’s declaration, and only identifies one purportedly
`problematic statement from Ex. D.1 See Mot. 2 (taking issue with statement that “Google’s Nest
`Audio product is ‘Google’s clearest attempt at a Sonos competitor yet’”). Google is wrong about
`that statement too—Sonos offers it not for the truth of the (at most) implied statement that
`“Google competes with Sonos” but rather as an example of a third party making a comparison
`between Google and Sonos products.
`Google identifies no specific hearsay statements in paragraph 9, and that paragraph
`contains no hearsay for the same reason as paragraph 7.
`Nor does Google identify any specific hearsay statements in paragraph 10. Once again,
`Google’s motion to strike is overbroad and must be denied. For example, paragraph 10 states: “In
`my experience, and as evidenced by the news and product articles just discussed, customers
`directly compare Sonos and Google products.” This is a statement about what customers do—
`directly compare these products—not a statement offered for the truth of the implicit statement
`that Sonos’s and Google’s products are in fact directly comparable.
`Google next takes issue with paragraph 17’s citation of Congressional testimony offered
`by Sonos’s Chief Legal Officer, Eddie Lazarus. Google complains about Ms. Kwasizur’s citation
`of Mr. Lazarus’s statement regarding “Google’s strategy … to sell products below cost” and
`related statements about Google’s loss leader strategy. Google argues that even if a hearsay
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`1 And in fairness to Sonos, Google cannot now use its reply brief to identify for the first time
`hearsay objections or specific allegedly problematic statements that it could have raised in its
`opening brief but chose not to. See Tr. 1787:16-1788:13 (Court explaining what constitutes
`improper “sandbagging”).
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`exception applies, the testimony “would still be improper” because these “sweeping and
`conclusory accusations … are wholly unsubstantiated.” Mot. 2.
`Google’s disagreement with the substance of Mr. Lazarus’s testimony is not a basis to
`strike a declaration that quotes from the testimony. Google argues, for example, that these
`“statements do not identify facts and should also be stricken” for that reason. Mot. 3 (citing L.R.
`7-5(b)). But even if this provision applied to a declaration’s quotation from Congressional
`testimony as opposed to a declarant’s own statements—a leap that Google doesn’t bother to
`support—Google offers no authority interpreting Local Rule 7-5(b) to permit striking facts from a
`declaration simply because the other party disagrees with them.
`Regardless, Mr. Lazarus’s testimony (and Ms. Kwasizur’s declaration) is accurate, as
`confirmed by the trial evidence and Google’s own post-trial filings. For example, Mr.
`Malackowski offered unrebutted testimony at trial that “these products are often what we
`considered a loss leader”; explaining that “they can be sold at an amount that doesn’t generate a
`net profit” “in order to capture that home,” as “part of the strategy of this business.” Tr. 1120:7-
`15. Google—in opposing Sonos’s request for injunctive relief—purports to rebut Mr.
`Malackowski’s loss leader testimony, but in doing so only confirms Google’s loss leader strategy.
`Google admits that “Google’s financial records demonstrate that it loses money on sales of some
`accused products.” Dkt. 829 at 4. That is agreement, not rebuttal. Google also offers a current
`employee, Mr. Chan’s, statement that Google (1) prices the products “at [a] lower price point,”
`but (2) does not price the accused products below cost. Id. at 5. But Mr. Chan clarifies that he
`means only that Google does not set the MSRP below the manufacturing cost, Dkt. 829-1 ¶ 6,
`ignoring Google’s other costs, such as product development, software engineering, and
`marketing. And Mr. Chan does not even attempt to dispute that Google does not generate a profit
`on these products, or that Google intentionally prices the product at an artificially low price to
`attract customers to the Google ecosystem—i.e., the substance of Mr. Malackowski’s still
`unrebutted trial testimony.
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`Because Google has not rebutted Mr. Malackowski’s testimony and has, in responding to
`that testimony, admitted that Mr. Malackowski was right, Google’s motion to strike is moot with
`respect to these statements, because their equivalent are already part of the record for purposes of
`trial and post-trial briefing.
`And Google’s motion to strike is inappropriate for another reason as well. The Court has
`made clear to the parties—and to Google in particular—that it is improper to “move[] to strike
`not out of prejudice but to secure an advantage,” describing this practice as “emblematic of the
`worst of patent litigation.” Dkt. 565 at 19. See also id. at 18 (partially granting Sonos’s motion
`to strike and denying Google’s motion to strike “in its entirety”). And the Court has warned
`Google about advancing objections just for the sake of objecting. Tr. 375:9-376:8 (instructing
`Google to “revise your objections” because “I did go through it on the first one,” and “I would
`say that only about 10 percent deserve to be made”).
`Notwithstanding this clear direction from the Court, Google has now introduced yet more
`motion practice—indeed, ancillary motion practice about motion practice—in order to try to gain
`a strategic edge in opposing Sonos’s request for injunctive relief. Google challenges Sonos’s
`proffered declaration with one hand while offering a fistful of its own news articles with the
`other: Google’s opposition to Sonos’s motion for injunctive relief relies on a declaration that on
`its face has the same issues that Google identifies here. See, e.g., Dkt. 829-2 (exhibiting thirteen
`news articles); cf. also, e.g., Dkt. 829-1 ¶ 9 (Mr. Chan opining that “I do not think of Google and
`Sonos as competitors in the smart speaker space”). Unlike Google, Sonos is adhering to the
`Court’s admonitions and is not moving to strike Google’s competing declarations.
`B.
`Google Has Already Admitted That Ms. Kwasizur’s Statements Are Correct
`Google moves to strike paragraphs 15 and 16 of Ms. Kwasizur’s declaration as not based
`on her personal knowledge. Once again, Google’s motion to strike is both overbroad and beside
`the point, quibbling with statements regarding facts that Google has already admitted.
`Ms. Kwasizur, the General Counsel of Sonos, has personal knowledge of the statements
`made in her declaration. For example, Google seeks to strike—as not based on personal
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`knowledge—Ms. Kwasizur’s statement that Google’s “lower-priced speaker offerings can
`adversely impact Sonos’s ability to counter ongoing price erosion that frequently affects
`consumer products.” Mot. 3 (moving to strike ¶ 15 in its entirety); Dkt. 830-2 ¶ 15. Similarly,
`Google seeks to strike Ms. Kwasizur’s statement that “Sonos places a strong emphasis on quality
`and privacy, focusing on using customer data to enhance their experience rather than aggressive
`monetization of customer data.” Mot. 3 (moving to strike ¶ 16 in its entirety); Dkt. 830-2 ¶ 16.
`But Google offers literally no argument or explanation as to why the General Counsel of Sonos
`would not have personal knowledge of Sonos’s commitment to quality and privacy or to Sonos’s
`pricing strategy. See, e.g., Allen, 2005 WL 8160551, at *3 (“personal knowledge may be inferred
`from the context of the affidavit and the affiant’s position” (citing Barthelemy v. Air Line Pilots
`Ass’n, 897 F.2d 999, 1018 (9th Cir. 1989)). And Google offers no “evidence” to “rebut[] the
`inference of personal knowledge flowing from [Ms. Kwasizur’s] position.” Edwards, 527 F.
`Supp. 2d at 1201-02.
`Google appears to only actually take issue with Ms. Kwasizur’s statements regarding
`Google’s pricing strategy and business, identifying two statements that Google says must be
`struck. First, Google takes issue with Ms. Kwasizur’s statement that “Google seeks to monetize
`their customers through the sale of additional services, rather than the speakers themselves.” But
`as explained above, Google has admitted in this case that (1) it does not sell the accused speakers
`at a profit, (2) that some of the accused speakers are in fact sold at a loss, and (3) that the
`remaining speakers are not sold at a loss—if and only if Google excludes from that analysis every
`single cost except for manufacturing cost. In other words, Google is wasting the Court’s and
`Sonos’s time by seeking to strike a statement that Google has already admitted, and which is
`already the subject of unrebutted trial testimony by Mr. Malackowski; here too the Court may
`deny Google’s motion to strike as moot.
`Second, Google takes issue with Ms. Kwasizur’s statement that Google engages in
`“aggressive monetization of customer data.” Mot. 3. But once again, Google does not actually
`dispute the substance of this statement. Google purports to rebut this statement, but offers only a
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`narrow, carefully worded statement from Mr. Chan, who states that “Google does not sell any
`customer data that it may collect from its smart speakers.” Dkt. 829-1 ¶ 8 (emphasis added).
`Google’s declaration does not dispute that Google uses customer data to generate revenue,
`contending only that Google does not sell customer data.2 And Google does not even offer the
`Court any definitive statement as to whether and what kind of data it does collect, hiding the ball
`with the statement “any customer data that it may collect.” Similarly, Mr. Chan also states that
`“Google does not display or play” its own “advertisements on its smart speaker products,” Dkt.
`829-1 ¶ 7, but does not substantively contest that Google monetizes customer data in other ways.
`This is not the stuff of rebuttal; this is an acknowledgement that Ms. Kwasizur’s statement is
`materially correct.
`C. Ms. Kwasizur Does Not Offer Expert Opinion
`Finally, Google moves to “strike portions of paragraph 13 and 14 and the entirety of
`paragraphs 11, 15, and 23 as impermissible expert opinion.” According to Google, Ms. Kwasizur
`has failed to limit her opinion testimony to that which is “rationally based on [her] perception,”
`under Rule 701. But Google’s objections are nearly coterminous with Google’s arguments about
`the weight and meaning of certain evidence that Sonos points to in its motion for injunctive relief.
`Google thus “move[s] to strike not out of prejudice but to secure an advantage,” Dkt. 565 at 19,
`and the Court should reject Google’s tactic.
`First, Google argues that Ms. Kwasizur “attempts to give improper expert testimony
`regarding the behavior of consumers” with respect to the lock-in and ecosystem effect. Mot. 4.
`Google highlights Ms. Kwasizur’s statement that “if Sonos loses out on an initial sale of a speaker
`product to a new household, then Sonos likely loses out on the sale of at least three devices to that
`
`2 And even this statement by Mr. Chan is so qualified that it does not actually appear to rebut
`Mr. Malackowski’s trial testimony that Google “generate[s] revenue from advertising and sale of
`data.” Tr. 1096:12. Google chose to save its “rebuttal” evidence for its post-trial declaration,
`knowing that Sonos would not have an opportunity to probe Mr. Chan’s statements, and fought—
`through pretrial motion practice—to exclude the revenues that could have shed light on this
`question. See, e.g., Dkt. 616-3 at 4-7 (“The Court Should Exclude References To Financial
`Information For Unaccused Products Under FRE 402 and 403.”); id. at 5 (specifically taking
`issue with Sonos’s allegation that Google’s infringement “has paved the way for Google to
`generate billions of dollars in revenue” from “advertising, data collection, and search”).
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`household” and then complains that Ms. Kwasizur has not “explained how statements regarding
`the likelihood that Sonos will lose sales of multiple devices is based on her ‘perception’ as a lay
`person.” Mot. 4. But Ms. Kwasizur testified at trial,3 without objection and where Google had
`the opportunity to cross examine her, that Sonos determined that “if one customer buys one Sonos
`[speaker], we know from our data that on average they buy 2.9 or 3 more products.” Tr. 1019:23-
`24. As she explained, “I think you heard the Google [in-house attorney] Mr. Kowalski in the
`video say he has eight; right?” Tr. 1019:25-1020:1. Elaborating, Ms. Kwasizur noted that “when
`we look at households, you know, we do look at how much our customers buy and how likely
`they are to buy another Sonos product or another one; or even -- even if you bought this one
`product, you are probably more likely to buy this, you know, home theater thing. Like, we tend to
`look at it in the aggregate as households. So, like I said, on average one customer buys I think it’s
`up to 2.98 is the latest stat on how you know what the repeat trends are ….” Tr. 1021:12-20.4
`Google also complains that “Ms. Kwasizur has not laid any foundation as to how her
`testimony regarding the ‘likely’ behavior of consumers who purchase Google speakers or the
`effect of Google’s product prices on Sonos’s speaker products is based on ‘first-hand knowledge
`or observation.’” Mot. 4 (quoting Tyco Thermal Controls LLC v. Redwood Industrials, No. C 06-
`07164 JF (PVT), 2010 WL 1526471, at *4 (N.D. Cal. Apr. 15, 2010)). Let’s take a look at some
`of the offending statements. For example, Google takes issue with Ms. Kwasizur’s statement that
`“I am aware that customers chose Google over Sonos based on price, integration with other
`Google smarthome devices, and brand familiarity.” Dkt. 830-2 ¶ 11. Does anyone even doubt
`any part of this statement? Google’s own witness Mr. Chan makes near-identical statements in
`
`
`3 See, e.g., Fed. R. Evid. 602 (“Evidence to prove personal knowledge may consist of the
`witness’s own testimony.”).
`4 Google’s argument that Sonos is “now attempt[ing] to re-assert” “its lost profits theory”
`“through conclusory statements by Ms. Kwasizur” is equally baseless. Sonos does not seek
`damages based on lost profits. But the fact that Google’s monopolistic and predatory pricing
`threatens Sonos’s profits is hardly a secret—it is the entire reason for this litigation. And as
`discussed in Sonos’s reply in support of its motion for injunctive relief, Google’s legal
`argument—that injunctive relief requires a showing of lost profits—is not supported by the legal
`authorities on which Google relies. Dkt. 836 at 3, 7.
`
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`3:20-CV-06754-WHA
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`his competing declaration, stating that he “do[es] not think of Google and Sonos as competitors in
`the smart speaker space,” apparently based on the distinction that “Google sells its speakers and
`devices at a lower price point than Sonos and generally attracts customers who are interested in
`the intelligence of the Google Assistant to control their smart homes.” Dkt. 829-1 ¶ 9. See also,
`e.g., Dkt. 829 at 5 (Google arguing that it “sells its products at lower price points” to customers
`who want to use “Google Assistant to control their smart homes” while “Sonos prices its
`premium products at higher price points”). Google identifies literally no reason why Ms.
`Kwasizur, the general counsel of Sonos, would not have personal knowledge of Google’s sales
`advantages on pricing, smart-home integration, and brand familiarity.5 See Allen, 2005 WL
`8160551, at *3 (“personal knowledge may be inferred from the context of the affidavit and the
`affiant’s position”). You don’t need a Ph.D. in economics to know that Google is a more
`universally recognized brand than Sonos. See, e.g., Dkt. 829 at 6 (Google quoting TX158 for the
`proposition that “[b]rand is a strong influencer on choice and Google does well”); Tr. 1034:20-
`21 (Court describing Google as “the biggest company in the world”). Indeed, jury selection was
`complicated in this matter because of the sheer number of potential jurors who, for example,
`owned Google stock. See, e.g., Tr. 111:23-113:8, 116:15-25, 117:9-16, 119:12-16, 119:22-120:3.
`Google similarly takes issue with Ms. Kwasizur’s statements regarding the lock-in effect,
`e.g., “when a consumer purchases a Google smart speaker, such as a Nest Audio, it is more likely
`that subsequent smart speaker purchases from that same consumer would be of Google smart
`speaker devices, as opposed to smart speaker devices of another brand, such as Sonos.” Mot. 4;
`Dkt 830-2 ¶ 13. Once again, this statement is at the very least reasonably supported by Ms.
`Kwasizur’s trial testimony regarding the data for repeat purchasers of Sonos products, see supra.
`Nothing in the trial record suggests that that repeat purchaser dynamic would not be analogous for
`purchasers of Google products.
`Google also relies upon legal authority that is entirely inapposite. See Mot. 4 (citing Tyco,
`2010 WL 1526471, at *4). In Tyco, the declarant was a paralegal at a law firm who “work[ed] on
`
`5 Google offers no evidence rebutting the presumption of her personal knowledge, either.
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`SONOS’S OPP. TO GOOGLE’S MOTION TO STRIKE
`3:20-CV-06754-WHA
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`litigation matters involving Monsanto” and before that had been a paralegal at Monsanto from
`1981 to 1987. 2010 WL 1526471, at *3. Tyco argued that “as a result of [the paralegal’s]
`experience as a Monsanto employee from August 1981 to August 1997 and her current
`employment at a firm that represents Monsanto, Belleau developed personal knowledge about
`Monsanto shipping records and their significance.” Id. But as the court noted, the paralegal’s
`“employment at Monsanto did not begin until August 1981, many years after the end of the
`period relevant to the instant case,” putting her in no position to have “‘first-hand knowledge or
`observation’ required to explain the significance of shipping records dated from 1958 to 1971.”6
`Id. at *4. Here, by contrast, Ms. Kwasizur has been employed at Sonos during the entire period
`of Google’s competition with Sonos and infringement, and she participated in licensing
`discussions that went into granular detail on Google’s product line of speakers during the period
`2016 to 2019. See generally Dkt. 705.
`Second, Google seeks to strike—as improper expert opinion—Ms. Kwasizur’s statements
`regarding the ability of Sonos and other market participants to meet demand if the Court enjoins
`Google’s infringement. Mot. 4-5. But as an executive at Sonos, Ms. Kwasizur naturally has
`knowledge of Sonos’s manufacturing and supplier capacity. Ms. Kwasizur, who has been
`employed at Sonos since 2013, explained that “selling audio products” is the core of Sonos’s
`business, and “[e]very Sonos employee works on speaker-related technology or supports Sonos’s
`speaker business in some way.” Dkt. 821 ¶¶ 1, 3-4. As she explained, “[h]ardware sales are
`Sonos’s primary source of revenue.” Id. ¶ 5. Ms. Kwasizur thus has general knowledge on
`Sonos’s sales of speakers, including those that compete with Google.
`Google specifically takes issue with Ms. Kwasizur’s statement that “Sonos has the
`manufacturing and supplier capacity to make up for much of the demand for Google’s media
`players,” suggesting that Ms. Kwasizur has no first-hand knowledge of this and arguing that
`
`
`6 Similarly, in another case on which Google relies, the court in Allen struck—for lack of personal
`knowledge—a declaration paragraph describing the activities of the Honeywell retirement plan in
`1983 where the declarant “has been the Honeywell plan administrator since only 2000.” 2005
`WL 8160551, at *2-3.
`
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`3:20-CV-06754-WHA
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`“there are several accused products for which Sonos makes no similar product.” Mot. 4. But
`Ms. Kwasizur did not say that Sonos alone could make up all of the demand, and indeed
`specifically identified other large players in the market that could make up any demand that
`Sonos could not, see infra.
`Google also objects to this statement in paragraph 23: “Although Sonos experienced
`manufacturing and supply shortfalls early in the COVID-19