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BladeRoom Group Ltd. v. Emerson Electric Co.

United States District Court, N.D. California, San Jose Division

May 9, 2018

BLADEROOM GROUP LIMITED, et al., Plaintiffs,
v.
EMERSON ELECTRIC CO., et al., Defendants.

          ORDER RE: EMERSON'S REQUEST TO “UN-ADMIT” CERTAIN EVIDENCE RE: DKT. NO. 821

          EDWARD J. DAVILA United States District Judge

         Emerson moved to “un-admit” a group of exhibits it believes are inadmissible hearsay. Dkt. No. 821. Plaintiffs opposed the request. Dkt. No. 819. The court previously denied Emerson's motion on the record. This order provides the reasoning underlying that ruling.

         I. EMERSON WAIVED ANY OBJECTION TO THE EXHIBITS

         Each of the 30 exhibits Emerson now seeks to exclude from the evidentiary record was admitted during trial without objection. Tr., Vol. 7, at 1385:12-1386:18 (Emerson's counsel stating there is no objection to Exhibits 1430, 1435, 1437, 1446, 1452, 1458, 1479, 1491, 1590, 1610, 1614, 1615, 1619, 1624, 1660, 1667, and 2095); Tr., Vol. 9, at 1839:21-1840:17 (admitting “agreed upon” Exhibits 1459, 1488, 1505, 1524, 1564, 1568, 1592, 1633, 1735, 1826, 2065 and 2072 without objection); Tr., Vol. 12, at 2561:24-2562:8 (Emerson's counsel stating there is no objection to Exhibit 2191). Plaintiffs argue that as a result, Emerson has waived any hearsay objection. The court agrees.

         Objections to evidence must be timely. Fed.R.Evid. 103(a)(1)(A). This rule requires an objection “be made as soon as the ground of it is known, or could reasonably have been known to the objector, unless some special reason makes its postponement desirable for him and not unfair to the offeror.” Jerden v. Amstutz, 430 F.3d 1231, 1236 (9th Cir. 2005) (quoting 21 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure § 5037.1 (2d ed. 2005)). “The requirement of timely and specific objections ‘serves to ensure that the nature of the error [is] called to the attention of the judge, so as to alert him [or her] to the proper course of action and enable opposing counsel to take corrective measures.'” Id. (quoting United States v. Gomez-Norena, 908 F.2d 497, 500 (9th Cir. 1990)).

         An objection is “timely” under Rule 103(a)(1)(A) “if it is made as soon as the opponent knows, or should know, that the objection is applicable.” Id. at 1236-37 (quoting 1 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 103.11).

         Here, the record shows that Emerson knew, or certainly should have known, that a hearsay objection was potentially applicable to each exhibit it now seeks to “un-admit.” According to Emerson, these exhibits are internal Facebook emails constituting inadmissible hearsay, and are not excluded from hearsay by the exception for coconspirator statements provided by Federal Rule of Evidence 801(d)(2)(E). But Facebook was released from the trial on May 9, 2018, due to a settlement with Plaintiffs - and on that same day, counsel for Plaintiffs and Emerson each addressed the hearsay exclusion for coconspirator statements. Tr., Vol. 5, 998:11-12 (Plaintiffs' counsel stating “[t]hat evidence would come in for a conspirator exception under the hearsay rule in any event”); 999:18-1000:5 (Emerson's counsel stating, inter alia, “[s]o one of the things that I think we should be thinking about is the conspiracy issue, ” and that evidence “may come in” under Rule 801(d)(2)(E)). There is, therefore, no reasonable explanation for Emerson to have waited until after the exhibits were admitted to object on hearsay grounds.

         Emerson attempts to explain its failure to object with a “running hearsay objection” it believes was permitted by the court. The record does not support Emerson on this point. Emerson relies on a side-bar conversation which occurred while Barnaby Smith was testifying, during which the following exchange occurred, in relevant part:

MR. HOLTSHOUSER: Our objection, I think, to this line of questioning is that we're listening to a lot of hearsay and I anticipate its going to continue as to BladeRoom eliciting testimony as to things that Facebook individuals say in meetings.
We have documents. They speak for themselves. I think to some extent they come in.
But if we're going to have repeated questioning about Facebook's side of conversations, I think I'd like to have a running hearsay objection to that.
And it should be excluded. They're not a party opponent as to us.
THE COURT: Ok.

Tr., Vol. 6, at ...


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