Case 3:20-cv-06754-WHA Document 847 Filed 07/20/23 Page 1 of 17
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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
`
` 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
`
`Attorneys for GOOGLE LLC
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`SAN FRANCISCO DIVISION
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`
`
`SONOS, INC.,
`
`
`Plaintiff and Counter-
`Defendant,
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`
`
`vs.
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`
`GOOGLE LLC,
`
`
`Defendant and Counter-
`Claimant.
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`
`
`
`
` Case No. 3:20-cv-06754-WHA
`Consolidated with Case No. 3:21-cv-07559-
`WHA
`
`GOOGLE LLC’S REPLY IN SUPPORT
`OF ITS MOTION TO STRIKE
`PORTIONS OF THE DECLARATION
`OF ALAINA KWASIZUR IN SUPPORT
`OF SONOS, INC.’S MOTION FOR
`PERMANENT INJUNCTION
`
`Hearing Date: August 10, 2023, 8:00 a.m.
`Location: Courtroom 12, 19th Floor
`Judge: Hon. William Alsup
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`Case No. 3:20-cv-06754-WHA
`GOOGLE’S REPLY IN SUPPORT OF ITS MOTION TO STRIKE PORTIONS OF THE DECLARATION OF
`ALAINA KWASIZUR
`
`
`
`

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`Case 3:20-cv-06754-WHA Document 847 Filed 07/20/23 Page 2 of 17
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`TABLE OF CONTENTS
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`Page
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`I.
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`ARGUMENT ............................................................................................................................. 1
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`A.
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`Sonos Fails To Establish That Certain Statements Are Not Hearsay ......................... 1
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`B.
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`C.
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`1.
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`2.
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`3.
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`Google Identified The Improper Hearsay In The Kwasizur
`Declaration ......................................................................................................... 1
`
`Sonos Offers The Statements For The Truth Of The Matter Asserted .......... 3
`
`Sonos Concedes Mr. Lazarus’s Inaccurate Testimony Is Hearsay
`And Lacks Foundation ...................................................................................... 3
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`4.
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`Sonos’s Other Arguments Are Inapposite ....................................................... 5
`
`Sonos Concedes Ms. Kwasizur Has No Personal Knowledge For Certain
`Statements Regarding Google....................................................................................... 6
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`Sonos Fails To Demonstrate Ms. Kwasizur’s Statements Are Proper Lay
`Opinion ........................................................................................................................... 7
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`1.
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`2.
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`Sonos Bears the Burden Of Establishing That Ms. Kwasizur’s
`Statements Are Proper Lay Opinion ................................................................ 8
`
`That The Substance Of The Statements Is Allegedly Not Disputed Is
`Irrelevant ............................................................................................................ 8
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`3.
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`Sonos Fails To Lay Any Foundation For Ms. Kwasizur’s Opinions ............. 9
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`CONCLUSION ........................................................................................................................ 12
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`II.
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`-i-
`Case No. 3:20-cv-06754-WHA
`GOOGLE’S REPLY IN SUPPORT OF ITS MOTION TO STRIKE PORTIONS OF THE DECLARATION OF
`ALAINA KWASIZUR
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`TABLE OF AUTHORITIES
`
`Cases
`
`Page
`
`Allen v. Honeywell Ret. Earnings Plan,
`No. CV-04-424-PHX-ROS, 2005 WL 8160551 (D. Ariz. July 27, 2005) ................................. 2
`
`AMCO Ins. Co. v. Madera Quality Nut LLC,
`No. 1:04-CV-06456-SMS, 2006 WL 2091944 (E.D. Cal. July 26, 2006).................................. 6
`
`Amirian v. Umpqua Bank,
`No. CV177574FMOFFMX, 2018 WL 3655666 (C.D. Cal. July 31, 2018) ............................... 6
`
`Art of Living Found. v. Does 1-10,
`No. 5:10-CV-05022-LHK, 2012 WL 1565281 (N.D. Cal. May 1, 2012) .................................. 7
`
`Asics Am. Corp. v. Lutte Licensing Grp. LLC,
`No. SACV131993JGBJPRX, 2014 WL 12577412 (C.D. Cal. Aug. 19, 2014) ......................... 6
`
`Barthelemy v. Air Lines Pilots Ass’n,
`897 F.2d 999 (9th Cir. 1990) ....................................................................................................... 11
`
`BRC Rubber & Plastics, Inc. v. Cont’l Carbon Co.,
`No. 1:11-CV-190, 2014 WL 554565 (N.D. Ind. Feb. 11, 2014) ............................................... 12
`
`Brigadier Roofing, Inc. v. Roofers’ Unions Welfare Tr. Fund,
`No. 14 CV 10496, 2017 WL 2834533 (N.D. Ill. June 30, 2017) ................................................ 2
`
`City of Long Beach v. Standard Oil Co.,
`46 F.3d 929 (9th Cir. 1995) ........................................................................................................... 8
`
`Cleveland v. Groceryworks.com, LLC,
`200 F. Supp. 3d 924 (N.D. Cal. 2016) .................................................................................... 9, 11
`
`Doe v. Texaco, Inc.,
`No. C06-02820 WHA, 2006 WL 2850035 (N.D. Cal. Oct. 5, 2006) ..................................... 4, 5
`
`Everest Stables, Inc. v. Canani,
`No. CV099446DSFVBKX, 2011 WL 13213657 (C.D. Cal. Oct. 6, 2011).......................... 8, 12
`
`Finjan, Inc. v. Check Point Software Techs., Inc.,
`No. 18-CV-02621-WHO, 2019 WL 7801443 (N.D. Cal. Aug. 12, 2019) ................................. 7
`
`Garcia v. Wal-Mart Stores Inc.,
`207 F. Supp. 3d 1114 (C.D. Cal. 2016)......................................................................................... 6
`
`Grouse River Outfitters Ltd. v. Oracle Corp.,
`No. 16-CV-02954-LB, 2019 WL 8918902 (N.D. Cal. June 21, 2019) ..................................... 10
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`Case No. 3:20-cv-06754-WHA
`GOOGLE’S REPLY IN SUPPORT OF ITS MOTION TO STRIKE PORTIONS OF THE DECLARATION OF
`ALAINA KWASIZUR
`
`
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`

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`Case 3:20-cv-06754-WHA Document 847 Filed 07/20/23 Page 4 of 17
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`Hanline v. Cnty. of Ventura,
`No. CV158808VAPAJWX, 2017 WL 11682912 (C.D. Cal. Aug. 7, 2017) .............................. 5
`
`Johnson v. Cate,
`No. 1:10-CV-00803-AWI, 2015 WL 5321784 (E.D. Cal. Sept. 10, 2015) ................................ 3
`
`Lankford v. Taylor,
`No. CV-17-02797-PHX-DWL, 2020 WL 6395294 (D. Ariz. Nov. 2, 2020) ............................. 2
`
`Lotenero v. Cripps,
`No. 1:11-CV-00200-AWI, 2013 WL 708163 (E.D. Cal. Feb. 26, 2013) ................................. 11
`
`Richardson v. CBS Studios Inc.,
`No. CV 12-7925 ABC (SHX), 2013 WL 12120265 (C.D. Cal. Sept. 25, 2013 ......................... 7
`
`Sun v. Governmental Authorities on Taiwan,
`No. C 94-2769 SI, 2001 WL 114443 (N.D. Cal. Jan. 24, 2001), aff’d sub nom.
`Sun v. Taipei Econ., 34 F. App’x 529 (9th Cir. 2002) ................................................................. 2
`
`Tyco Thermal Controls LLC v. Redwood Industrials,
`No. C 06-07164 JF (PVT), 2010 WL 1526471 (N.D. Cal. Apr. 15, 2010) .............................. 10
`
`United States v. Rubin/Chambers,
`828 F. Supp. 2d 698 (S.D.N.Y. 2011) ........................................................................................... 8
`
`Washington v. Kellwood Co.,
`No. 05-CV-10034 (SN), 2016 WL 5680374 (S.D.N.Y. Sept. 30, 2016), aff’d,
`714 F. App’x 35 (2d Cir. 2017) ................................................................................................... 10
`
`X17, Inc. v. Lavandeira,
`No. CV06-7608-VBF(JCX), 2007 WL 790061 (C.D. Cal. Mar. 8, 2007) ................................. 7
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`Other Authorities
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`Fed. R. of Evid. 602 ............................................................................................................................ 11
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`Fed. R. Evid. 701 ..................................................................................................................... 8, 10, 12
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`Fed. R. Evid. 701(a).............................................................................................................................. 8
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`Fed. R. Evid. 702 ................................................................................................................................ 12
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`Local Rule 7-5(b) .............................................................................................................................. 1, 5
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`Case No. 3:20-cv-06754-WHA
`GOOGLE’S REPLY IN SUPPORT OF ITS MOTION TO STRIKE PORTIONS OF THE DECLARATION OF
`ALAINA KWASIZUR
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`Case 3:20-cv-06754-WHA Document 847 Filed 07/20/23 Page 5 of 17
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`Sonos fails to justify the improper statements in Ms. Kwasizur’s declaration, largely
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`conceding that they violate the Federal Rules of Evidence and Local Rule 7-5(b). Instead, Sonos
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`argues that the statements should stand because (1) Google has allegedly admitted that they are
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`accurate, (2) Google has not rebutted the substance of the statements, and (3) the statements are
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`supported by other evidence in the record. Even if Sonos were correct, none of these excuses cure
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`the evidentiary violations that pervade Ms. Kwasizur’s declaration. Sonos is seeking an excessive
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`and overbroad injunction—it should not be permitted to do so based on its own lawyer’s
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`unsupported testimony comprised of hearsay, unfounded statements, and impermissible lay opinion.
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`I.
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`ARGUMENT
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`A.
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`Sonos Fails To Establish That Certain Statements Are Not Hearsay
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`Sonos offers a mishmash of arguments to distract from the undisputed fact that paragraphs
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`7, 9, 10, and 17 are inadmissible hearsay that should be stricken. None has merit.
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`1.
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`Google Identified The Improper Hearsay In The Kwasizur Declaration
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`Sonos contends that Google does not “identify[] the alleged hearsay within those
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`passages.” Dkt. 841 (“Opp.”) at 2. But as Google’s motion stated plainly, the entirety of these
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`paragraphs and the articles they reference constitute hearsay because they are based on paraphrase
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`or directly quote statements made by out-of-court declarants—i.e., the authors of those articles. Dkt.
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`830 (“Mot.”) at 2. For example, Ms. Kwasizur references several articles to assert that Google’s
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`and Sonos’s speakers “are widely recognized as competing products . . . both product-by-product
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`and generally” and then purports to summarize the hearsay statements therein. Dkt. 821 (“Kwasizur
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`Decl.”) ¶¶ 7, 9 (describing content of articles as “directly compar[ing] Sonos and Google products,”
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`“directly compar[ing] the Google Home Nest and the Sonos One,” “identify[ing] Sonos and Google
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`as competitors,” “discuss[ing] Sonos’s products and list[ing] ‘Google Chromecast built-in’ as a
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`competitor,” and “directly compar[ing] the Sonos One and Google Nest Audio”), ¶ 10 (describing
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`contents of “the news and product articles” attached as “customers directly compar[ing] Sonos and
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`Google products”). And as Sonos itself recognizes, Google identified the remainder of paragraphs
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`7, 9, and 10 and the entirety of paragraph 17 as direct quotations to out-of-court statements that are
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`hearsay. Id. ¶ 7 (quoting The Next Web article), ¶ 9 (quoting Inc. Magazine article), ¶ 17 (quoting
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`Case No. 3:20-cv-06754-WHA
`GOOGLE’S REPLY IN SUPPORT OF ITS MOTION TO STRIKE PORTIONS OF THE DECLARATION OF
`ALAINA KWASIZUR
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`Case 3:20-cv-06754-WHA Document 847 Filed 07/20/23 Page 6 of 17
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`statements made by Sonos’s Chief Legal Officer).
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`Importantly, Sonos does not dispute that testimony “necessarily derive[d] from the contents
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`of documents or the statements of out-of-court declarants . . . 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); see
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`also Sun v. Governmental Authorities on Taiwan, No. C 94-2769 SI, 2001 WL 114443, at *6 (N.D.
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`Cal. Jan. 24, 2001), aff’d sub nom. Sun v. Taipei Econ., 34 F. App’x 529 (9th Cir. 2002) (striking
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`paragraph of declaration that summarized the findings from out-of-court investigation records
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`because it was being offered to prove their contents). The Court made clear that even Sonos’s
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`expert, who is allowed to rely on hearsay, could not use newspaper articles as a basis for his
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`opinions:
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`THE COURT: We’re not going to do that. We’re not going to do that. That kind of
`inflammatory stuff is Mickey Mouse. No. No newspaper stories, headlines like that.
`That’s it. Sorry. We got -- time is too short. Life is too short. You can do a better
`job than that. We’re not going to make that kind of -- newspaper articles. Now, I’m
`not saying that anticompetitive conduct is not -- if there’s some legitimate basis for
`that; but relying on newspapers, for goodness sakes, to prove somebody’s done
`something wrong, that – there’s a thing called a hearsay rule, and I’m not going to
`let an expert get around the hearsay rule by regurgitating crap like that to the jury.
`I’m ashamed to know that you would even try such a thing. Please don’t – don’t do
`that.
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`Pretrial Conf. Hr’g Tr. at 66:1-14. Ms. Kwasizur—a fact witness—should not be permitted to opine
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`on the substance of news articles in her declaration as an end run around the Court’s directive.
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`Given the entirety of paragraphs 7, 9, 10, and 17 is based on hearsay, it follows that Google’s
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`motion to strike is not “overbroad” as Sonos contends. Opp. at 2-3. Sonos cites authority for the
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`generic assertion that motions to strike can be denied for being overbroad, but those cases involve
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`entirely different facts and are distinguishable. See Brigadier Roofing, Inc. v. Roofers’ Unions
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`Welfare Tr. Fund, No. 14 CV 10496, 2017 WL 2834533, at *2 (N.D. Ill. June 30, 2017) (denying
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`motion to strike parts of a statement of facts in support of a summary judgment motion because “the
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`purpose of [the statement of facts] is to permit the district court to identify . . . which material facts
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`are in dispute”); Lankford v. Taylor, No. CV-17-02797-PHX-DWL, 2020 WL 6395294, at *2 (D.
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`Ariz. Nov. 2, 2020) (denying motion in limine seeking to “‘exclude at trial any evidence or argument
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`regarding, or reference to, claims and defendants that were previously dismissed in this matter’”
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`Case No. 3:20-cv-06754-WHA
`GOOGLE’S REPLY IN SUPPORT OF ITS MOTION TO STRIKE PORTIONS OF THE DECLARATION OF
`ALAINA KWASIZUR
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`Case 3:20-cv-06754-WHA Document 847 Filed 07/20/23 Page 7 of 17
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`because the court could not conclude “as a categorical matter[] that all evidence pertaining to the
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`now-dismissed counts and defendants will be irrelevant at trial”).
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`2.
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`Sonos Offers The Statements For The Truth Of The Matter Asserted
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`Sonos unconvincingly argues that Ms. Kwasizur does not offer the statements or news
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`articles for the truth of the matter asserted, but rather to provide an example of “third part[ies]
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`making a comparison between Google and Sonos products.” Opp. at 2, 3. But this is merely pretext
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`in an attempt to sneak improper testimony into the record. The only purpose for which Ms.
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`Kwasizur cites these articles is to try to prove that Google and Sonos are indeed competitors, a point
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`prominently featured in Sonos’s motion for injunctive relief and additional damages. See Dkt. 820
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`at 1-4, 6, 11. In fact, Sonos cites paragraphs 7 and 9 of Ms. Kwasizur’s declaration summarizing
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`and quoting the contents of these articles precisely to try to support its assertion that “[the parties’]
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`competition started in 2015 and continues today, at least as to media players like Nest Audio.” Opp.
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`at 3 (citing Kwasizur Decl. ¶¶ 3-9). Tellingly, Sonos does not identify how else third-party
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`comparisons of Google’s and Sonos’s products would be relevant, if not to prove the “truth” of
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`Sonos’s assertion that those products compete.
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`Sonos also fails to explain how describing Ms. Kwasizur’s testimony as “a statement by the
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`declarant about what other parties do” meaningfully changes the analysis when what the other
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`parties are “doing” is making out-of-court statements via online articles. Id. at 2 (emphasis in
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`original). The same argument could apply to any hearsay statement. Because Google is unable to
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`question or challenge the declarant who stated that Google’s Nest Audio is “Google’s clearest
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`attempt at a Sonos competitor yet,” for example, these paragraphs and corresponding exhibits must
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`be stricken. See Johnson v. Cate, No. 1:10-CV-00803-AWI, 2015 WL 5321784, at *9 (E.D. Cal.
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`Sept. 10, 2015) (“It is axiomatic to state that newspaper articles are by their very nature hearsay
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`evidence and are thus inadmissible if offered to prove the truth of the matter asserted[.]”).
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`Sonos Concedes Mr. Lazarus’s Inaccurate Testimony Is Hearsay And Lacks
`Foundation
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`As for paragraph 17, Sonos does not dispute that Ms. Kwasizur’s recitation of Mr. Lazarus’s
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`Congressional testimony is hearsay, which is inadmissible. See Opp. at 3-4. Simply put, there is
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`-3-
`Case No. 3:20-cv-06754-WHA
`GOOGLE’S REPLY IN SUPPORT OF ITS MOTION TO STRIKE PORTIONS OF THE DECLARATION OF
`ALAINA KWASIZUR
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`
`
`

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`Case 3:20-cv-06754-WHA Document 847 Filed 07/20/23 Page 8 of 17
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`no declaration from Mr. Lazarus, even though there could have been, and that renders paragraph 17
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`of Ms. Kwasizur’s declaration inadmissible hearsay. Instead, Sonos contends that the Court should
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`ignore this cornerstone evidentiary rule because—according to Sonos—its own Chief Legal
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`Officer’s testimony is “accurate.” Id. at 4. In other words, Sonos appears to take the untenable
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`position that it is acceptable to offer hearsay for the truth of the matter asserted, so long as the matter
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`asserted in Mr. Lazarus’s statements is true. That is not the law.
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`Sonos’s own views regarding the “accuracy” of Mr. Lazarus’s statements are irrelevant to
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`whether they are inadmissible hearsay and/or lack the requisite foundation. Nevertheless, Google
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`briefly responds to correct Sonos’s misrepresentation that “Google has already effectively admitted
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`the accuracy of the relevant statements.” Opp. at 2, 4. With respect to Sonos’s “loss leader”
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`concept, Google spelled out expressly in its opposition to Sonos’s motion for a permanent injunction
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`that Google does not intentionally price its products in a way to lose money no matter the sales
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`volume. Dkt. 829 at 4. Far from “unrebutted,” Sonos’s “loss leader” theory has been invalidated
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`numerous times by Google and its witnesses. See, e.g., id. at 4; Dkt. 619 at 3. Sonos’s only alleged
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`“evidence” of its speculative theory is the ipse dixit of its own damages expert.
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`Finally, Sonos makes two ancillary arguments, both of which are immaterial. First, contrary
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`to Sonos’s assertion, Google did not move to strike Ms. Kwasizur’s recitation of Mr. Lazarus’s
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`statements simply because Google “disagrees with them.” Opp. at 4. As explained in Google’s
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`motion, the Court should strike this paragraph not only because it quotes undisputedly out-of-court
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`statements—but also because Mr. Lazarus does not have the personal knowledge to opine on
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`“Google’s strategy,” how Google makes money, or the various allegations he makes regarding
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`Google’s speakers as Sonos’s Chief Legal Officer. Mot. at 2-3; Doe v. Texaco, Inc., No. C06-02820
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`WHA, 2006 WL 2850035, at *2 (N.D. Cal. Oct. 5, 2006) (“Any statement made must specify the
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`information or belief the declarant bases his or her statement upon.”). During trial, the Court
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`recognized that testimony regarding Google’s business practices by Sonos witnesses “[c]alls for
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`speculation.” Trial Tr. at 298:1. For example, the Court sustained Google’s objection to testimony
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`by Sonos’s Chief Innovation Officer, Nick Millington, concerning “the Amazons[’], the Googles[’],
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`[and] the Apples[’]” motivations for “compet[ing] in a multiroom audio space[.]” Id. at 297:7-
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`-4-
`Case No. 3:20-cv-06754-WHA
`GOOGLE’S REPLY IN SUPPORT OF ITS MOTION TO STRIKE PORTIONS OF THE DECLARATION OF
`ALAINA KWASIZUR
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`

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`Case 3:20-cv-06754-WHA Document 847 Filed 07/20/23 Page 9 of 17
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`298:1. The Court should therefore exclude similar testimony in support of Sonos’s request for a
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`permanent injunction. Second, Sonos suggests that Local Rule 7-5(b) does not apply when a
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`declaration contains quotations as opposed to a declarant’s own statements. Opp. at 4. There is no
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`basis for this assertion; the rule does not draw such a distinction and instead expressly states that
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`“[a]n affidavit or declaration may contain only facts” without any exceptions for
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`quotations. Because Mr. Lazarus’s statements do not identify facts, Ms. Kwasizur’s verbatim
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`repetition of his statements certainly cannot contain facts and must be stricken. See Doe, 2006 WL
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`2850035, at *2 (“Civil Local Rule 7-5(b) mandates that declarations only contain facts,” “be based
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`on personal knowledge,” and “avoid conclusions and argument.”).
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`4.
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`Sonos’s Other Arguments Are Inapposite
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`Sonos’s other arguments all fail. First, Sonos’s allegation that Google is “advancing
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`objections just for the sake of objecting” is belied by the case law and Sonos’s failure to
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`meaningfully respond to any category of improper statements. Opp. at 5. Second, Sonos baselessly
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`accuses Google of introducing “ancillary motion practice about motion practice [] in order to try to
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`gain a strategic edge” while ignoring the fact that Sonos previously filed a motion to strike in a
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`similar context. Id. (emphasis in original); see also Dkt. 219 (seeking to strike declaration in support
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`of Google’s motion for summary judgment). Moving to strike improper statements in a declaration
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`is not an attempt to gain “a strategic edge” when the moving party has a legitimate basis, as Google
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`does here.
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`Finally, Sonos cannot point to Google’s declarations submitted in support of its opposition
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`to Sonos’s motion for injunctive relief to justify Ms. Kwasizur’s improper statements. The news
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`articles that Google attaches to its opposition via an attorney declaration (as both parties have been
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`doing throughout the course of this litigation) merely identify the prices of certain accused products;
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`critically, they do not offer a fact witness’ endorsement of them. Nor does Sonos explain how Mr.
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`Chan’s statement about whether he personally views the parties as competitors —as a product
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`manager in the smart speaker space during the relevant time period and Google’s corporate
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`designee—could be hearsay. See Hanline v. Cnty. of Ventura, No. CV158808VAPAJWX, 2017
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`WL 11682912, at *5 (C.D. Cal. Aug. 7, 2017) (witness’ statement “simply stat[ing] what he thought
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`-5-
`Case No. 3:20-cv-06754-WHA
`GOOGLE’S REPLY IN SUPPORT OF ITS MOTION TO STRIKE PORTIONS OF THE DECLARATION OF
`ALAINA KWASIZUR
`
`
`
`

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`Case 3:20-cv-06754-WHA Document 847 Filed 07/20/23 Page 10 of 17
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`about” another person was not hearsay).
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`B.
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`Sonos Concedes Ms. Kwasizur Has No Personal Knowledge For Certain
`Statements Regarding Google
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`Sonos attempts to salvage the statements in Ms. Kwasizur’s declaration for which she has
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`no personal knowledge on the ground that they contain “statements regarding facts that Google has
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`already admitted.” Opp. at 5. But as the party relying on Ms. Kwasizur’s declaration, Sonos has
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`the burden of demonstrating that Ms. Kwasizur’s statements are supported by personal
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`knowledge. See AMCO Ins. Co. v. Madera Quality Nut LLC, No. 1:04-CV-06456-SMS, 2006 WL
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`2091944, at *5 (E.D. Cal. July 26, 2006) (“The burden is on the proponent to establish personal
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`knowledge to the extent that a reasonable trier of fact could believe that the witness had personal
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`knowledge about the fact.”); see also Amirian v. Umpqua Bank, No. CV177574FMOFFMX, 2018
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`WL 3655666, at *3 (C.D. Cal. July 31, 2018); Garcia v. Wal-Mart Stores Inc., 207 F. Supp. 3d
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`1114, 1121 (C.D. Cal. 2016). Nothing in Ms. Kwasizur’s declaration, or her role as a Sonos lawyer,
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`suggests that she has personal knowledge of Google’s business practices.
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`Ms. Kwasizur’s declaration fails to identify the basis for her claims that “Google seeks to
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`monetize their customers through the sale of additional services, rather than the speakers
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`themselves” and “[i]n contrast to Google, Sonos places a strong emphasis on quality and privacy,
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`focusing on using customer data to enhance their experience rather than aggressive monetization of
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`customer data.” Kwasizur Decl. ¶¶ 15, 16. Her “declaration does not identify the source of the
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`information summarized” nor “state that [she] reviewed [] records from which the data was
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`gathered.” Asics Am. Corp. v. Lutte Licensing Grp. LLC, No. SACV131993JGBJPRX, 2014 WL
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`12577412, at *4 (C.D. Cal. Aug. 19, 2014).
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`Ms. Kwasizur’s personal knowledge about Sonos’s business practices is itself already
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`questionable. See id. (finding that proponent of declaration “has not laid adequate foundation for
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`[certain] data” referenced in the declaration because “the Court is not convinced that it can be
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`inferred that [the declarant] would have knowledge of marketing expenses and sales numbers from
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`his position as general counsel for Asics”). And there is nothing about Ms. Kwasizur’s position as
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`Sonos’s General Counsel that implies she would have personal knowledge about Google’s business
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`-6-
`Case No. 3:20-cv-06754-WHA
`GOOGLE’S REPLY IN SUPPORT OF ITS MOTION TO STRIKE PORTIONS OF THE DECLARATION OF
`ALAINA KWASIZUR
`
`
`
`

`

`Case 3:20-cv-06754-WHA Document 847 Filed 07/20/23 Page 11 of 17
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`practices. See Art of Living Found. v. Does 1-10, No. 5:10-CV-05022-LHK, 2012 WL 1565281, at
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`*11 (N.D. Cal. May 1, 2012) (“Although personal knowledge can sometimes be inferred from the
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`position held by the declarant, [the declarant’s] positions do not on their own support a reasonable
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`inference that they have personal knowledge of a particular oral or written agreement that allegedly
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`occurred eight years earlier.”); X17, Inc. v. Lavandeira, No. CV06-7608-VBF(JCX), 2007 WL
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`790061, at *3 (C.D. Cal. Mar. 8, 2007) (concluding that proponent of declaration “failed to introduce
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`evidence of [declarant’s] personal knowledge” where the proponent “furnishe[d] only [the
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`declarant’s] job title and her conclusory assertions of personal knowledge of everything contained
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`in the declarations”).
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`That Google’s Motion does not additionally dispute the substance of Ms. Kwasizur’s
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`statements does not provide Sonos with an end-run around the rules of evidence. See Finjan, Inc.
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`v. Check Point Software Techs., Inc., No. 18-CV-02621-WHO, 2019 WL 7801443, at *10 (N.D.
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`Cal. Aug. 12, 2019) (rejecting argument that motion to strike declaration “should be denied because
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`the declaration is factually correct” because a “declaration made without personal knowledge is
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`entitled to no weight”). In fact, Sonos’s argument that Google “already admitted” Ms. Kwasizur’s
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`claims in paragraphs 15 and 16 of her declaration—if it were correct—would compel exclusion of
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`such statements for violation of the best evidence rule. Opp. at 5; see Richardson v. CBS Studios
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`Inc., No. CV 12-7925 ABC (SHX), 2013 WL 12120265, at *6 (C.D. Cal. Sept. 25, 2013) (“[T]he
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`statements regarding falsified cue sheets lack foundation as they are not based on personal
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`knowledge and also violate the best evidence rule as the cue sheets themselves are the best evidence
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`of their contents and the vast majority of them are not attached to Plaintiffs’ opposition.”).
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`C.
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`Sonos Fails To Demonstrate Ms. Kwasizur’s Statements Are Proper Lay
`Opinion
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`Finally, Sonos unsuccessfully attempts to mask the expert opinions in paragraphs 11, 13, 14,
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`15, and 23 of Ms. Kwasizur’s declaration—which contain conclusions regarding consumer
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`purchasing behavior, a purported “lock-in” effect, price erosion, and the ability for market
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`participants to meet the demand in the case of an injunction—as Ms. Kwasizur’s lay opinion
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`testimony. Because Sonos fails to establish that these opinions are “rationally based on [her]
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`-7-
`Case No. 3:20-cv-06754-WHA
`GOOGLE’S REPLY IN SUPPORT OF ITS MOTION TO STRIKE PORTIONS OF THE DECLARATION OF
`ALAINA KWASIZUR
`
`
`
`

`

`Case 3:20-cv-06754-WHA Document 847 Filed 07/20/23 Page 12 of 17
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`perception” through “first-hand knowledge or observation,” they must be stricken. Fed. R. Evid.
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`701(a); Fed. R. Evid. 701 Advisory Committee Note.
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`1.
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`Sonos Bears the Burden Of Establishing That Ms. Kwasizur’s Statements
`Are Proper Lay Opinion
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`Once again, Sonos improperly seeks to shift its burden of showing that Ms. Kwasizur’s
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`declaration complies with the Federal Rules onto Google. See Opp. at 9 (“Google identifies literally
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`no reason why Ms. Kwasizur, the general counsel of Sonos, would not have personal knowledge of
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`Google’s sales advantages on pricing, smart-home integration, and brand familiarity.”); id. at 11
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`(“Google identifies no reason to think that Ms. Kwasizur would not be aware of these facts”). But
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`as discussed above (supra Sec. I.B), the burden is on Sonos—as “the party seeking to introduce lay
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`opinion testimony”—to “establish a proper foundation” for the statements in Kwasizur’s
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`declaration. United States v. Rubin/Chambers, 828 F. Supp. 2d 698, 703 (S.D.N.Y. 2011); see also
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`City of Long Beach v. Standard Oil Co., 46 F.3d 929, 937 (9th Cir. 1995) (“The proponent of the
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`evidence bears the burden of laying the proper foundation for the admission.”).
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`Sonos also incorrectly contends—without any supporting authority—that there is a
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`presumption that Ms. Kwasizur has the requisite personal knowledge to offer her lay opinions that
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`Google must rebut. See Opp. at 9 n.5 (“Google offers no evidence rebutting the presumption of her
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`personal knowledge.”); id. at 12 (“Indeed, her personal knowledge is presumed as a result of her
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`position”). But as previously discussed, Sonos has the burden of establishing that Ms. Kwasizur’s
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`opinion testimony is proper. See supra. While Courts have inferred personal knowledge based on
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`“particularized knowledge that the witness has by virtue of his or her position in the business,” such
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`as the owner or officer of a business testifying to “the value or projected profits of a business,” such
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`an inference is inapplicable here. Everest Stables, Inc. v. Canani, No. CV099446DSFVBKX, 2011
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`WL 13213657, at *2 (C.D. Cal. Oct. 6, 2011). As discussed further below, Sonos provides no basis
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`from which the Court can infer Ms. Kwasizur’s personal knowledge to opine on consumer behavior,
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`price erosion, and the ability for market participants to meet increased market demand based on her
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`position as Sonos’s in-house lawyer.
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`2.
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`That The Substance Of The Statements Is Allegedly Not Disputed Is
`Irrelevant
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`-8-
`Case No. 3:20-cv-06754-WHA
`GOOGLE’S REPLY IN SUPPORT OF