United States v. Pacific Gas and Electric Co.

          ORDER DENYING DEFENDANT’S MOTION TO STRIKE CERTAIN GOVERNMENT EXHIBITS AND RELATED TESTIMONY

          THELTON E. HENDERSON UNITED STATES DISTRICT JUDGE

         On July 11, 2016, Defendant Pacific Gas and Electric Company (“PG&E”) filed a Motion to Strike Certain Government Exhibits and Related Testimony. Dkt. No. 734 (“Mot.”). The motion was briefed on an expedited schedule. Dkt. No. 742 (“Opp’n”); Dkt. No. 747 (“Reply”). After carefully considering the parties’ written arguments, the Court now DENIES PG&E’s motion.

         BACKGROUND

         On July 5, 2016, PG&E lodged objections to 43 of the 96 exhibits the Government intended to introduce through witness William Manegold. Dkt. No. 717 (“Manegold Objs.”). The following day, the Court issued its First Order on the Manegold objections, in which it addressed PG&E’s objections “to the admission through Mr. Manegold of PG&E documents and emails that he appears neither to have authored nor received” and to “PG&E data request responses produced to the government by third parties like the [California Public Utilities Commission (‘CPUC’)] if he did not author or send them to the CPUC.” Id. at 1; Dkt. No. 724 (“First Order”). In that First Order, the Court issued an advance ruling that “Mr. Manegold may sometimes, ” i.e. when he possessed the necessary personal knowledge, “lay the foundation for a hearsay exception even if he did not author or receive the document requiring the exception.” First Order at 2 (emphasis in original). The Court then issued piecemeal rulings on PG&E’s 43 exhibit-specific objections to the Manegold exhibits. See Id. at 4-9; Dkt. No. 725 (“Second Order”); Dkt. No. 728 (“Third Order”).

         On July 6-8 and 12, 2016, the Government questioned Mr. Manegold on direct examination regarding his work as a former employee of PG&E, admitting some of the challenged exhibits (pursuant to the Court’s First, Second, and Third Orders) in the process. PG&E now moves under Federal Rule of Evidence (“Rule”) 103 to strike some of these exhibits and Mr. Manegold’s related testimony. Specifically, PG&E moves the Court to strike Government Exhibits 192, 283, 331, 351, 647, 651, 714, and 717^[1] as well as all related testimony. Mot. at 13.^[2]

         Exhibit 647 is a PG&E email that PG&E moves to strike on the basis that: (i) the Government failed to lay a Rule 801(d)(2) foundation for the email; and (ii) the exhibit is unfairly prejudicial. Id. at 9-11. Exhibits 192, 351, 651, 714, and 717 are PG&E emails that PG&E moves to strike on the basis that Mr. Manegold, who is not on the emails: (i) lacked the personal knowledge to lay a Rule 801(d)(2) foundation for them; and (ii) lacked the personal knowledge to testify as to their contents under Rule 602. Id. at 1-8. Exhibits 283 and 331 are PG&E documents (the former a financial document and the latter a slideshow presentation) that PG&E moves to strike on the basis that Mr. Manegold could not possibly have laid a Rule 801(d)(2) foundation for such “author-less” documents. Id. at 8-9. PG&E also objects to Exhibits 331 and 351 on the basis that they are unfairly prejudicial financial evidence. Id. at 11-13. PG&E does not contest the authenticity of any of these exhibits, as it has stipulated to the authenticity of all documents that bear PG&E Bates numbers. See Dkt. No. 719; Trial Tr., Vol. 15 at 2136:5-2137:5.

         DISCUSSION

         The Court agrees with the Government that PG&E’s motion inappropriately “reconstitutes objections that the Court overruled and raises new ones in hindsight.” Opp’n at 1. Moreover, PG&E’s motion runs afoul of the Court’s prior rulings on the proper timing and form for such arguments. The Court’s pretrial Order Setting Trial Rules and Procedures requires that PG&E raise any objections to the Government’s case-in-chief exhibits the day prior to their proposed admission, so that the Court can rule on the objection prior to trial the following morning. Dkt. No. 434 at 1. And during trial, the Court has repeatedly reiterated this process, delineated the proper form for any objections, and stated that it will not revisit evidentiary rulings.^[3]

         Adherence to these prior rulings is necessary to ensure that the Court has a full record of objections before deciding whether to admit or exclude disputed exhibits, and to ensure that the Court need not revisit any evidentiary rulings and delay trial in the process.^[4]This is especially important given that this trial - which was thrice delayed as a direct result of gamesmanship and poor preparedness on the part of both parties - is proceeding at an alarmingly slow pace. Indeed, at the time of the Court’s rulings on the Manegold objections, the trial was entering its fifth week and Mr. Manegold was only its seventh witness (of the 44 listed on the Government’s witness list). Dkt. No. 490.

         And yet, PG&E appears to have largely ignored the Court’s prior rulings (evidentiary and procedural alike) in bringing the present motion. As discussed in more detail below, PG&E’s present motion came three or four days after the admission of the challenged exhibits, raised objections never previously made to the Court, and re-raised objections previously made to and rejected by the Court. Nevertheless, for the sake of a clean record, the Court addresses PG&E’s arguments below.

         I. The Court DENIES PG&E’s motion to strike Exhibit 647 and Mr. Manegold’s related testimony.

         PG&E moves to strike Exhibit 647, an email exchange between Mr. Manegold and another PG&E employee, on two grounds: (i) the Government failed to lay a Rule 801(d)(2) foundation for the email; and (ii) the exhibit is unfairly prejudicial under Rule 403. Mot. at 9-11.^[5]

         The former argument, under Rule 801(d)(2), is one PG&E makes for the first time in the present motion. Indeed, unlike sixteen of the other Manegold exhibits to which PG&E submitted a written objection, PG&E’s objection to Exhibit 647 did not include: “Lack of foundation: Manegold not on [email/document/spreadsheet/letter/data response].” Manegold Objs. at 3-8. Rather, PG&E’s written objection to Exhibit 647 listed only the following: “MIL Order at 19 (Financial evidence that is not specifically tied to the charged regulations)”; “FRE 403 probative value is substantially outweighed by a danger of unfair prejudice”; “FRE 401”; and “No connection to knowing and willful act.” Id. at 5-6.^[6] And PG&E made absolutely zero oral objection to the admission of Exhibit 647 during trial.^[7] Instead, PG&E waited until three days after Exhibit 647 was admitted to make any objection that the Government had failed to lay a proper foundation for the exhibit under Rule 801(d)(2). Mot. at 9-11.

         Rule 103 permits a party to “claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and . . . if the ruling admits evidence, a party, on the record . . . timely objects or moves to strike.” Fed.R.Evid. 103(a)(1)(A) (emphasis added). The Ninth Circuit has recognized that trial courts possess “broad discretion” to decide whether such a motion is timely, but has counseled that “[a]n objection is ‘timely’ if it is made as soon as the opponent knows, or should know, that the objection is applicable.” Jerden v. Amstutz, 430 F.3d 1231, 1236-37 (9th Cir. 2005) (citation omitted).

         Here, PG&E waited until three days after it knew, or should have known, that a Rule 801(d)(2) objection may be applicable to move to strike Exhibit 647. Doing so rendered the present motion untimely. Moreover, the Court was not in receipt of PG&E’s final briefing on this motion until after Mr. Manegold’s testimony completed, ^[8] which makes PG&E’s untimely motion even more difficult to excuse. See Id. at 1237 (“[W]e hold here that the court’s late exclusion of Dr. Gross’s testimony was an abuse of its discretion because the untimely decision, ” which was in response to a motion made two days after Dr. Gross’s testimony concluded, “unfairly prevented Plaintiffs from providing a curative response.”). The tardiness of PG&E’s Rule 103 motion to strike Exhibit 647 therefore renders the motion contrary to not only this Court’s prior orders, but also to Ninth Circuit precedent on the timeliness Rule 103 motions. Accordingly, the Court DENIES PG&E’s motion to strike Exhibit 647 and the related testimony.

         II. The Court DENIES PG&E’s motion to strike Exhibits 192, 283, 331, 351, 651, 714, and 717 and Mr. Manegold’s related testimony.

         PG&E moves to strike Exhibits 192, 351, 651, 714, and 717, which are PG&E emails, on the basis that Mr. Manegold, who was not on the emails: (i) lacked the personal knowledge to lay a foundation for them as statements of a party-opponent under Rule 801(d)(2); and (ii) lacked the personal knowledge to testify as to their contents under Rule 602. Mot. at 1-8. PG&E moves to strike Exhibits 283 and 331, which are PG&E documents, on the basis that Mr. Manegold ...