United States District Court, N.D. California, San Jose Division
ORDER RE: EMERSON'S REQUEST TO
“UN-ADMIT” CERTAIN EVIDENCE RE: DKT. NO.
J. DAVILA United States District Judge
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.
EMERSON WAIVED ANY OBJECTION TO THE EXHIBITS
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
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)).
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).
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.
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 ...