United States District Court, N.D. California
ORDER REGARDING DEFENDANT’S OBJECTIONS TO DAUBY
EXHIBITS
THELTON E. HENDERSON United States District Judge
Yesterday
morning Defendant Pacific Gas and Electric Company
(“PG&E”) lodged objections to eight exhibits
the Government intends to introduce through witness Frank
Dauby. The Court now OVERRULES IN PART and SUSTAINS IN PART
those objections.
BACKGROUND
PG&E
makes only three objections to the eight contested exhibits.
First, PG&E again “object[s] as to financial
matters not tied to charged conduct for Exhibits 287 and 374
. . . through [Federal Rule of Evidence (‘Rule’)]
401 and 403.” Trial Tr., Vol. 20 at
2738:23-2739:4.[1] Second, PG&E “object[s] to
Exhibits 267, 280, 592 and 666, as . . . not related to the
charged conduct . . . under [Rules] 401, 403 and
404(b).” Id. at 2738:25-2739:2. And third,
PG&E objects to Exhibits 608 and 614 because
“[t]hey both reference the San Bruno incident, ”
because their admission “would violate the
Court’s prior orders, ” and because they are
“highly prejudicial . . . [and not] probative of
anything that hasn’t already been established.”
Id. at 2739:8-20.
GOVERNMENT’S
EXHIBITS 287 and 374
Exhibit
287 is an email chain regarding “2008 Metrics and Key
Indicators” and discussing the comparative costs of
various assessment technologies, including Direct Assessment
(“DA”) and In-Line Inspection
(“ILI”). Exhibit 374 is an email chain regarding
“2009 [Integrity Management (‘IM’)]
forecast - further reductions necessary” and discussing
which IM projects can be “reduced to make ends
meet.”
PG&E’s
objection to these exhibits is identical to one PG&E has
made, and the Court has rejected, many times before. The
exhibits are relevant for the reasons stated in the
Government’s response to PG&E’s objections,
which are in keeping with the relevance of prior exhibits
objected to on the same basis. See Dkt. No. 753
(“Opp’n”) at 2-3. The exhibits are not
improper financial evidence for the reasons stated in the
Court’s prior Orders on this same objection. See,
e.g., Order on Hogenson Exs. at 6-7. The exhibits’
probative value is not substantially outweighed under Rule
403, and the Court sees no reason to redact any financial
figures from either exhibit.
The
Court therefore OVERRULES PG&E’s objection that
these exhibits involve irrelevant or unduly prejudicial
financial evidence.
GOVERNMENT’S
EXHIBIT 267
This
exhibit is an email chain regarding PG&E’s
“tool selection process.” PG&E objects that
this exhibit is inadmissible under Rules 401, 403 and 404(b)
because it is not related to the charged conduct. Not so. The
exhibit discusses PG&E’s procedure for selecting
pipeline assessment tools, which meets the relevance
threshold for several of the charged regulations. See
e.g., 49 C.F.R. § 192.917(e)(4) (“[When
certain conditions exist] an operator must select an
assessment technology or technologies with a proven
application capable of assessing seam integrity and seam
corrosion anomalies.”); 49 C.F.R. § 192.919
(“An operator must include . . . the following elements
in its written baseline assessment plan . . . [t]he methods
selected to assess the integrity of the line pipe, including
an explanation of why the assessment method was selected to
address the identified threats to each covered
segment.”). Meanwhile, PG&E has offered absolutely
no explanation why the probative value of this evidence is
substantially outweighed under Rule 403, and the Court sees
none. Finally, this evidence is not excludable under Rule
404(b) because it concerns PG&E’s Integrity
Management practices (as relevant to charged regulations)
during a period just before or overlapping with the indicted
conduct.[2]See United States v.
Vizcarra-Martinez, 66 F.3d 1006, 1012-13 (9th Cir. 1995)
(discussing the parameters of Rule 404(b)).
The
Court therefore OVERRULES PG&E’s objection that
this exhibit is irrelevant, unduly prejudicial, or excludable
“other act” evidence.
GOVERNMENT’S
EXHIBIT 280
This
exhibit is an email chain discussing PG&E’s DA
costs as well as the feasibility and costs of performing ILI
on two pipelines: Lines 109 and 132. In other words, this
exhibit concerns two possible assessment technologies on two
charged pipelines.
PG&E
objects that this exhibit is inadmissible under Rules 401,
403 and 404(b) because it is not related to the charged
conduct. Not so. The exhibit is relevant and survives
PG&E’s Rule 403 and Rule 404(b) ...