ORDER ON OBJECTIONS TO TRIAL EXHIBITS [Re: Docket Nos. 343, 344]

HOWARD R. LLOYD, Magistrate Judge.

At the Final Pretrial Conference, the Court heard motions in limine and reviewed the parties' exhibit lists. The Court granted Plaintiff's motion to exclude documents requested but not produced in discovery. The Court also ordered the parties to serve upon each other and lodge with the Court copies of all trial exhibits and to file any objections thereto. Plaintiff objected to all but one of Defendants' ten (10) exhibits based on relevance, hearsay, failure to disclose, and/or incompleteness. See Dkt. No. 343. Defendants objected to many of Plaintiff's 107 exhibits on grounds of relevance, hearsay, and privileges. See Dkt. No. 344.

A. Plaintiff's Objections

Plaintiff asserts that many of Defendants' exhibits or portions thereof, were not produced in discovery despite requests for such documents. Defendants only express a general belief that they were produced at some point. Unless Defendants can actually demonstrate beyond a mere belief that they did produce the documents in question during discovery, the Court will not allow them to be presented as exhibits at trial. Thus, in accordance with the aforementioned order on Plaintiff's motion in limine, the following exhibits or portions thereof will be excluded: 201, 203, 205, 207, 208 (pages 1-16), 209 (pages 10-12), and 210.1

As for the exhibits that were previously disclosed, Plaintiff objects to Exhibits 204 and 206 as hearsay. Exhibit 204 and portions of Exhibit 206 are emails from an employee of Plaintiff and do not constitute hearsay. See Fed. R. Evid. 801(2)(D) (opposing party's statement). Whether the remaining portions of Exhibit 206 are subject to the business records exception, as disputed by the parties, will depend on the testimony of a custodian or other qualified witness to show that the requirements of FRE 803(6) are satisfied. Thus, the Court defers its ruling on Plaintiff's hearsay objection to Exhibit 206.

B. Defendants' Objections

Defendants assert that numerous exhibits are subject to attorney-client privilege. However, the Court previously found that attorney-client privilege did not apply to these documents due to the crime-fraud exception. Accordingly, Defendants' objection is overruled.

Defendants also raise objections on relevance grounds and argue that because the alleged fraudulent intent must have formed by the time of the agreement, documents created after are irrelevant to prove intent.2 Notwithstanding that the documents may be relevant for another purpose, subsequent actions and later created documents can evidence an earlier formed intent. Thus, at this time, the Court declines to exclude the exhibits on that basis alone.

Exhibits 97 through 99 are the federal income tax returns for MEI and the Loros, and Defendants assert the tax privilege recognized by California law. Any privilege applies to their discovery, not their admissibility. If relevant, they may be admitted so long as personal identifiers are redacted.

Exhibit 107 purports to be the entirety of MEI's responses to Plaintiff's first request for production comprising nearly 300 pages. Defendants generally object on relevance and hearsay grounds. While it is doubtful that the each document therein is relevant and not hearsay, the Court defers ruling on the exhibit's admissibility until the purpose for which Plaintiff seeks to introduce it, or portions thereof, is apparent.

C. Conclusion

Exhibits 201, 203, 205, 207, 208 (pages 1-16), 209 (pages 10-12), and 210 are excluded for failure to disclose, subject to Defendants' ability to demonstrate that the documents were in fact produced in discovery. Plaintiff did not object to Exhibit 202 and its objection to Exhibit 204 is overruled. The Court's ruling on objections to Exhibit 206 is deferred.

Defendants did not object to Exhibits 1-46, 60, 61, 63, 64, 68, 74-83, 85-96, 100-02, 104-06. Defendants' objections based on attorney client privilege (Exhibits 47-53, 55-58, 62, 69-71) and tax return privilege (Exhibits 97-99) are overruled. The Court defers until trial its ruling on Defendants' relevance objections to Exhibits 47-59, 62, 65-67, 69-73, 84, 103, 107, as well as Defendants' hearsay objections to Exhibits 97-99, 103, 107.

IT IS SO ORDERED.