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

THELTON E. HENDERSON, 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 7171 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 could not possibly have laid a Rule 801(d)(2) foundation for such "author-less" documents. Id. at 8-9.

This time, however, PG&E's foundation argument is not entirely brand new. The Court's prior ruling that "Mr. Manegold may sometimes 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), was made in response to the following objection from PG&E (which is quoted in full):

Manegold Objs. at 1. The Court disagreed, holding that "[e]ven if Mr. Manegold is not on an email, it is likely that as a long-time employee of PG&E, he will be able to lay the foundation for the application of [Rule 801(d)(2)]." First Order at 2. The Court reached the same conclusion about PG&E "data responses, spreadsheets, or other documents" for which no author is indicated, but for which Mr. Manegold's experience was similarly likely to render him capable of laying a Rule 801(d)(2) foundation. Id. at 2-3.

The Court stands by that ruling9 and stands by its statement that PG&E's conduct prior to this written objection rendered the objection "disingenuous, or at least self-serving." Id. at 2 n.2.10 But PG&E now raises a slightly different argument than the one the Court previously addressed; PG&E now argues that "regardless of Mr. Manegold's ability to lay a Rule 801(d)(2) foundation[,] he could not testify to the statements because he has zero firsthand knowledge of them." Mot. at 1. PG&E also reiterates its argument that Mr. Manegold needed to have personal knowledge of the actual drafting of each PG&E email and document (all of which PG&E admits are authentic) to be the witness who lays their foundation under Rule 801(d)(2), but this time PG&E supports this argument with previously uncited authority on the interplay between Rules 801(d)(2) and 602. Id. at 2, 7.

PG&E's written objections to the Manegold exhibits (as quoted above) failed to raise the first argument and failed to offer the case law PG&E now cites in support of the second. Instead, PG&E waited four days (for Exhibits 192, 283, 331, and 351) or three days (for Exhibits 651, 714, and 717) until after the exhibits' admission to file its Rule 103 motion to strike.11 For the same reasons discussed under Exhibit 647, PG&E's motion to strike Exhibits 192, 283, 331, 351, 651, 714, and 717 is therefore untimely. And, as with Exhibit 647, the tardiness of PG&E's motion is reason enough for the Court to deny PG&E's request that it strike the challenged exhibits and testimony. But, unlike Exhibit 647, PG&E did list "Lack of foundation" for each of Exhibits 192, 283, 331, 351, 651, 714, and 717 in its written objections to those exhibits. Manegold Objs. at 3-7. The Court therefore finds good cause to address the fuller foundational objection PG&E now makes to Exhibits 192, 283, 331, 351, 651, 714, and 717.

To that end, PG&E's new objection and new authority lack merit. Contrary to PG&E's argument, Mr. Manegold did not need firsthand knowledge of the drafting of the challenged PG&E emails and documents to provide testimony satisfying Rule 801(d)(2)(D). The Advisory Committee Notes to Rule 801(d)(2) explain that "[a]dmissions by a party-opponent are excluded from the category of hearsay on the theory that their admissibility in evidence is the result of the adversary system rather than satisfaction of the conditions of the hearsay rule," and therefore that "[n]o guarantee of trustworthiness is required in the case of an admission." Fed. R. Evid. 801(d)(2) advisory committee's note. Party admissions therefore enjoy "freedom . . . from . . . the rule requiring firsthand knowledge," and this freedom "calls for generous treatment of this avenue to admissibility." Id. See also United States v. STABL, Inc., 800 F.3d 476, 484 (8th Cir. 2015) ("[T]he only foundation required for 801(d)(2)(B) adoptive admissions is a showing that they were made or adopted by the opposing party or by its agent on a matter within the scope of that agency; there is no personal-knowledge requirement.").

Though PG&E argues that this "freedom from personal knowledge" applies to the declarant rather than the witness, this argument is unavailing. Reply at 2-4. The chief case PG&E cites in support is inapposite, but if considered, actually weakens PG&E's argument. In Bemis v. Edwards, the Ninth Circuit noted, in the context of the Rule 803 hearsay exceptions for present sense impression and excited utterance, that "[a] witness who merely testifies to the fact that a declarant made the statement . . . need only have firsthand knowledge that the statement was made, not of the events described in the statement." 45 F.3d 1369, 1373 n.2 (9th Cir. 1995). Though this Court is concerned with Rule 801, rather than Rule 803, the Ninth Circuit's comments are actually consistent with the notion that a testifying witness need only have personal knowledge as to the requirements to which he or she testifies; in Bemis, the conditions of a present sense impression or excited utterance under Rule 803, and here, the identity of the declarant under Rule 801(d)(2).12

It therefore simply does not matter, for the purposes of admissibility, that Mr. Manegold had never seen the challenged exhibits (emails and documents alike) before his testimony was used as the basis for their admission under Rule 801(d)(2)(D). Mr. Manegold did not need to have previously seen the exhibits to know that, for example, the author of an email was a PG&E employee at the time the statement was made or that the logo on a slideshow presentation belonged to PG&E. For these reasons, PG&E's argument that "cross-examination regarding the context of the statement and any surrounding circumstances is well-nigh impossible" misses the point entirely. Mot. at 7. No cross-examination of either the declarant or the testifying witness is necessary on the question of admissibility, as the exhibits are unquestionably admissible as statements of a party-opponent. If PG&E elects to put on a case-in-chief, then PG&E is of course free to call the declarant of any such statement to question him or her about the content of their non-hearsay (and properly admitted) statement. But that is, of course, a choice for PG&E to make.13

And while it may be independently true that Mr. Manegold cannot testify about the content of an admitted exhibit when he lacks personal knowledge to answer questions about that content, Mr. Manegold was never asked to so testify. See Fed. R. Evid. 602 advisory committee's note ("This rule does not govern the situation of a witness who testifies to a hearsay statement as such, if he has personal knowledge of the making of the statement. . . . This rule would, however, prevent him from testifying to the subject matter of the hearsay statement, as he has no personal knowledge of it."). For example, after the Government admitted Exhibit 192 through Mr. Manegold, it asked him questions based on his own personal knowledge of the topics discussed therein:

See Trial Tr., Vol. 16 at 2298:12-18; id. at 2299:11-13. Though the Exhibit 192 email was the catalyst for these questions, the fact is that Mr. Manegold possessed the personal knowledge to respond; Mr. Manegold did not learn the meaning of the acronym "PIP" by reading the email underlying Exhibit 192, and he did not lack the personal knowledge under Rule 602 to share with the jury that "PIP" stands for Performance Incentive Plan. The same is true of the Government's questions to Mr. Manegold on the remaining challenged exhibits.14

Accordingly, after sitting through the challenged testimony and after a thorough review of the record, the Court is satisfied that Exhibits 192, 283, 331, 351, 651, 714, and 717 were properly admitted as non-hearsay statements of a party-opponent. The Court therefore DENIES PG&E's motion to strike Exhibits 192, 283, 331, 351, 651, 714, and 717 and the related testimony.

But perhaps more importantly, the present motion highlights the Court's growing concern about PG&E's selective interpretation of the Rules. For example, on July 13, 2016, PG&E admitted an email through Mr. Manegold that Mr. Manegold neither authored nor received. Trial Tr., Vol. 20 at 2775:24-2776:23. This was the same morning PG&E filed its reply in support of the present motion, in which PG&E reasserted its position that this very practice runs afoul of Rule 602. PG&E also questioned Mr. Manegold about the content of a document even after Mr. Manegold explained that he had never before seen the document, yet another practice that is apparently only improper when employed by the Government. See Trial Tr., Vol. 19 at 2684:5-7 ("Q: This is a PHMSA Draft Gas Integrity Management Inspection Manual Protocol B. Have you ever seen this document before? A: I don't think so. . . . Q: I'd like you to turn to Page 0006, if you would?"). And Mr. Manegold is not the only witness with whom PG&E exercised practices that it roundly criticized by the Government. Compare Trial Tr., Vol. 21 at 2908:11-13 (objecting to the admission of an email chain where Todd Hogenson appeared on the root email but not on the four emails that followed), with id. at 2966:5-22 (admitting email chain through Mr. Hogenson even though he did not appear on the base email).

The Court does not intend to suggest that PG&E ran afoul of the Rules in any of these examples. To the contrary, each of these examples is proper for the same reasons discussed above, with respect to the Government's questioning of Mr. Manegold. Rather, the Court identifies these examples because PG&E's use of the very practices it alleges are improper belies its stated concern that the Court has improperly admitted unreliable hearsay testimony.

III. The Court DENIES PG&E's motion to strike Exhibits 331 and 351 as unfairly prejudicial financial evidence.

Finally, PG&E moves to strike Exhibits 331 and 351 on the basis that they are unfairly prejudicial financial evidence. Mot. at 11-13. This argument is rejected (yet again) for the same reasons the Court has previously stated. See First Order at 3-4; Dkt. No. 748 at 1-3.

CONCLUSION

For the reasons set forth above, PG&E's motion is DENIED.

IT IS SO ORDERED.