United States v. Pacific Gas and Electric Co.

          ORDER SUSTAINING GOVERNMENT’S OBJECTION TO DEFENSE EXHIBIT

          THELTON E. HENDERSON UNITED STATES DISTRICT JUDGE

         Yesterday afternoon the Government objected to six maps recently disclosed by Defendant Pacific Gas and Electric Company (“PG&E”). Each map represents a different city in which PG&E operates its pipeline system. Each map also indicates the location of: (i) PG&E pipelines in the city; and (ii) the home address of any PG&E employee who resides in the city. See Def. Exs. 343-48.

         PG&E produced these maps during a break in testimony yesterday afternoon. Trial Tr., Vol. 21 at 3069:25-3070:2. This was only hours before the Government began its examination of Calvin Lui, through whom PG&E intends to admit the maps on cross-examination. Id. The Government objected to the admission of these maps, and the matter was submitted to the Court following brief oral argument. Id. at 3076:20.

         Though the Government did not identify any Federal Rules of Evidence in its objection to the maps, the thrust of its objection is that the maps are irrelevant, id. at 3071:4, create “some confusion [about] what an intentional violation of the Pipeline Safety Act involves, ” id. at 3071:19-21, and lack foundation, id. at 3071:22-3072:3. PG&E argues that the maps are “relevant to the intent of the employees and, therefore, of the defendant, ” because employee proximity to pipelines informs “whether anyone would knowingly and willfully make the choices that the Government contends PG&E made to compromise public safety.” Id. at 3076:5-8. PG&E also argues that the proper foundation for these maps will be laid on cross-examination of Mr. Lui, who is presently testifying. Id. at 3074:17-3075:8.

         As a threshold matter, and though it was not mentioned during oral argument, the Court believes Rule 1006 governs the admission of these maps. Rule 1006 provides:

The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place. And the court may order the proponent to produce them in court.

Fed. R. Evid. 1006. PG&E’s proposed maps appear to be just the sort of “summary of voluminous writings” contemplated by Rule 1006: rather than telling the jury how close each of the roughly 1, 698 PG&E employees listed in the underlying spreadsheets^[1] live to a PG&E pipeline, PG&E visually summarized this information on the maps by depicting a dot (in proximity to each pipeline) for each employee. And though the Government did not identify Rule 1006 by name, the concerns underlying Rule 1006 animated the Government’s objection. See Trial Tr., Vol. 21 at 3071:22-3072:3 (“We have no indication that - we haven’t been shown any sort of electronic version that these are, indeed, where the pipeline lay and these are, indeed, where - if you plot it on a map, where we take it at face value, of the addresses of the employees . . . .”); Amarel v. Connell, 102 F.3d 1494, 1516 (9th Cir. 1996) (“The purpose of [Rule 1006’s] availability requirement is ‘to give the opposing party an opportunity to verify the reliability and accuracy of the summary prior to trial.’”).

         If Rule 1006 applies, which the Court believes it does, then PG&E’s own prior statements counsel against admission of the maps, because PG&E failed to provide the Government with either the maps or the spreadsheets that they summarize until yesterday afternoon (only hours before Mr. Lui began testifying). As PG&E previously argued:

[Rule] 1006 and clear Ninth Circuit precedent require the government to provide a defendant its summary evidence, and the material that evidence purports to summarize, in advance of trial. Failure to do so is grounds for exclusion. The Court should enforce that rule here, rather than indulge the government’s continued gamesmanship.

Dkt. No. 604 at 1 (emphasis added). See also Id. at 5 (“In these circumstances, the correct remedy is to exclude the proposed summary . . . exhibits . . . . That is what the Ninth Circuit held in Davis & Cox, affirming a district court’s exclusion of summaries where the proffering party ‘did not make available the summaries nor the underlying documents to the summaries, as required under Rule 1006, until just before trial.’”) (quoting Davis & Cox v. Summa Corp., 751 F.2d 1507, 1516 (9th Cir. 1985)). And even if the Court did not adopt the “pretrial production” requirement PG&E only recently advanced for use against the Government, PG&E’s production of the maps and spreadsheets only hours before Mr. Lui’s testimony would certainly not constitute production “at a reasonable time and place, ” as required by the Rule. Fed.R.Evid. 1006.

         Accordingly, even assuming the maps are relevant and otherwise admissible evidence, which the Court does not now hold, then it is entirely unclear why Rule 1006 should not apply to provide the Government with the same ample time to ensure the maps’ reliability and accuracy that PG&E recently sought for itself. Id. PG&E offers only that Mr. Lui “has reviewed these maps” and “has reviewed the underlying data, ” Trial Tr., Vol. 21 at 3073:6-7, but Rule 1006 is concerned with the opposing party’s opportunity for review, not the offering witness’, Fed.R.Evid. 1006. Unless and until PG&E can convince the Court that the maps - which summarize hundreds of data points without giving the Government an opportunity to test the accuracy of that summary - are something other than summary exhibits, the maps shall therefore be excluded under Rule 1006 for PG&E’s failure to timely disclose them and the content they summarize.

         IT IS SO ORDERED.

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