Shell Offshore Inc. et al v. Greenpeace, Inc.

Filing 142

ORDER RE EVIDENTIARY MOTIONS:IT IS ORDERED that the motions at Dockets 16 , 44 , 66 , 84 and 88 are each DENIED. (See order for details). Signed by Judge Sharon L. Gleason on 06/04/2015. (CME, COURT STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
SHELL OFFSHORE, INC., a Delaware
corporation, and SHELL GULF OF
MEXICO INC., a Delaware corporation,
Plaintiffs,
v.
GREENPEACE, INC., a California
corporation, and JOHN and JANE DOES
1-20,

Case No. 3:15-cv-00054-SLG

Defendants.

ORDER RE EVIDENTIARY MOTIONS
Before the Court are five motions relating to evidence presented to the Court in
connection with Shell’s Motion for Preliminary Injunction.

Oral argument was not

requested on any of these motions and was not necessary to the Court’s decision,
although the issue of judicial notice was briefly discussed at the preliminary injunction
hearing.
I.

Shell’s Motion for Judicial Notice (Docket 16) and Supplemental Motion for
Judicial Notice (Docket 44); Greenpeace’s Motion for Judicial Notice (Docket
66)
Shell requests that the Court take judicial notice of numerous documents submitted

as exhibits to the declarations of Veronica Keithley. 1 These documents include captured
web content that appears to derive from Greenpeace USA websites, captured web
content from other global Greenpeace USA affiliates and third parties, and documents
and orders from the court docket in Shell Offshore, Inc. v. Greenpeace, Inc., 3:12-cv-

1

Dockets 16, 44.

00042-SLG. For its part, Greenpeace also requests that the Court take judicial notice of
captured web content submitted as exhibits to the declaration of Carol McNeese. 2
The parties have filed their motions for judicial notice pursuant to Local Rule
7.2(d)(2) of the District of Alaska’s current local rules. 3 That local rule directs litigants to
file a motion asking the court to take judicial notice of materials or information that is not
readily available in print or that is from an internet site. But Evidence Rule 201 limits the
type of facts of which a district court may take judicial notice to only those facts that are
“not subject to reasonable dispute” because the fact is either “generally known within the
trial court’s territorial jurisdiction” or “can be accurately and readily determined from
sources whose accuracy cannot reasonably be questioned.” 4 Granting judicial notice of
a fact conclusively establishes that fact in a civil case. 5 Therefore, granting broad judicial
notice of documents is not appropriate when those documents contain facts that may well
be in dispute. Stated differently, the parties’ motions for judicial notice each seek relief
that is at odds with this Court’s reading of Federal Rule of Evidence 201. Moreover, as
both parties noted, each has submitted declarations attesting to the authenticity of the
documents or website content. Accordingly, the Court has admitted the exhibits for

2

Docket 66.

3

See D.Ak. LR 7.1(d). This local rule is actively under review by a court advisory committee.
The Court acknowledges and appreciate counsel’s efforts to comply with the local rules.
4

Evidence Rule 201(b). At the preliminary injunction hearing, the Court noted and
acknowledged the tension between this evidence rule and the local rule with respect to motions
for judicial notice.

5

See Fed. R. Evid. 201(f) (“In a civil case, the court must instruct the jury to accept the noticed
fact as conclusive.”).

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purposes of the preliminary injunction proceedings even though the Court is not taking
judicial notice of them. 6 Accordingly, the motions at Dockets 16, 44, and 66 will all be
denied.
II.

Motion to Strike and/or Exclude Lay Opinion Testimony (Docket 84)
Greenpeace USA moves the Court to strike certain testimony contained within the

declarations of two Shell witnesses—David George and Rocky Lee.

In the Order

Granting Motion for Preliminary Injunction, the Court relied upon the testimony of these
witnesses. The Court acknowledged that by doing so, the Court was implicitly denying
the Motion to Strike as to those witnesses. 7 This portion of this Order is intended to
explain the basis for the Court’s determination.
The Court finds that the objected-to portions of the declarations of Mr. George and
Mr. Lee about safety zones at sea and in the air constitute expert opinion testimony, as
that testimony was based on scientific, technical, or other specialized knowledge that
would appear to fall within the scope of Rule 702. 8 Thus, Greenpeace USA’s objection
to their testimony as inadmissible lay opinion evidence is not applicable.
Greenpeace USA also asserts that each of these witness’s opinions are
conclusory and therefore inadequate. But the Court finds any deficiency with regard to
the basis for the witness’s opinions was sufficiently addressed in the context of a

6

See Docket 93 (List of Exhibits) (Exhibit UU was not admitted); see also Herb Reed Enters.,
LLC v. Florida Entm’t Mgmt, Inc., 736 F.3d 1239, 1250 n.5 (9th Cir. 2013) (“Due to the urgency
of obtaining a preliminary injunction at a point when there has been limited factual development,
the rules of evidence do not apply strictly to preliminary injunction proceedings.”).

7

See Docket 111 (Prelim. Inj.) at 13 n.41.

8

See Docket 84 at 5, 9; Fed. R. Evid. 701.

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preliminary injunction hearing when Greenpeace USA was provided the declarations well
in advance of the hearing and accorded the opportunity to cross-examine each of the
declarants at the preliminary injunction hearing.

The Court has considered the

deficiencies that Greenpeace USA has asserted with respect to the declarations in
assessing the weight to accord to this testimony. And yet, it bears noting in this regard
that the objected-to testimony of these witnesses relating to the appropriate size of safety
zones was unrebutted by any witness presented by Greenpeace USA at the preliminary
injunction hearing, as it elected to rely instead upon cross-examination of Shell’s
witnesses and certain Coast Guard regulations.
Greenpeace USA asserts that if Mr. George and Mr. Lee’s testimony is treated as
expert testimony, then Shell failed to comply with the expert disclosure requirements of
Civil Rule 26. Greenpeace USA asserts that the Court should not have exercised its
discretion to relax the expert disclosure rules in this case because Shell should have
anticipated that Greenpeace USA would again be facing the same long-standing
opposition by Greenpeace USA that occurred three years ago, such that Shell should
have prepared its experts accordingly. But Shell was not required to anticipate that a
Greenpeace USA employee would climb onto Shell’s contracted vessels in the middle of
the Pacific Ocean and that emergency injunctive relief would need to be sought. And, as
Shell notes, at the initial scheduling hearing in this case held on April 10, 2015, both
parties were accorded the opportunity to propose additional procedural requirements for
the preliminary injunction hearing, but Greenpeace USA did not request further expert
disclosures apart from the declarations that had already been provided to it at that time.
In these circumstances, for purposes of the preliminary injunction hearing, the Court
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declines to strike the testimony of Mr. George and Mr. Lee based on a lack of complete
compliance with the pretrial disclosure requirements for experts set out in Civil Rule 26.
Greenpeace USA’s motion to strike also objects to certain portions of the
declaration of Michael Battle related to the safety risks associated with Greenpeace USA
protests against Shell vessels. 9 Shell responds that these statements are not expert
opinions, but are “common sense.”10

The Court did not accord any weight to the

statements by Mr. Battle to which Greenpeace USA has objected; those particular
statements did not assist the Court in applying the 4-factor preliminary injunction analysis
in this case. 11 Rather, as discussed in the preliminary injunction order, the Court relied
primarily on the testimony of Greenpeace USA’s witness Mary Sweeters with respect to
Greenpeace USA’s future intended actions against Shell. 12 The Court concurs with
Greenpeace USA that the objected-to statements by Mr. Battle would not be admissible
under Rule 701 as lay opinion testimony. But given the more relaxed rules of evidence
for preliminary injunction proceedings, the Court will not strike these statements from the
record.
Accordingly, the Court has denied Greenpeace USA’s Motion to Strike the
testimony of the three Shell witnesses at Docket 84.

9

See Docket 84 at 8-9, which lists the specific paragraphs to which objection is made.

10

Docket 96 at 10.

11

But see Docket 111 at 7, n.22 regarding that portion of the Battle Declaration at paragraph 5
upon which the Court did rely and that was not objected to by Greenpeace USA.

12

Docket 111 at 6.

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III.

Motion to Strike Plaintiffs’ Hearsay Exhibits (Docket 88)
In this motion, Greenpeace USA seeks an order that would strike from the record

certain exhibits submitted by both Greenpeace USA and Shell in their extensive filings on
Shell’s motion for preliminary injunction. The Court admitted all but one of the parties’
proposed exhibits at the April 28, 2015 preliminary injunction hearing. 13 At that hearing,
Greenpeace USA orally raised an objection to the Court’s consideration of numerous
exhibits, then filed this motion the following day on April 29, 2015.
Greenpeace USA’s motion to strike acknowledges that the Court has the
discretionary authority to admit hearsay evidence when ruling upon a preliminary
injunction. But as to the news stories Shell has filed, Greenpeace USA maintains that the
“sheer volume” and “exceptionally broad array of alleged web-based news sources of
questionable reliability” warrant exclusion. Greenpeace USA also seeks to strike from the
record materials contained in Shell’s exhibits that were obtained from other Greenpeace
entities’ websites. 14 And, for consistency, Greenpeace USA proposes to strike the news
articles and similar exhibits that it itself submitted in opposition to Shell’s motion. 15 In
support of its motion, Greenpeace USA has filed charts which identify the exhibits, or
portions of exhibits that it seeks to have stricken. 16

13

Docket 93 (Exhibit List) (Exhibit UU was not admitted).

14

Docket 88 (Motion) at 2.

15

Docket 98-2.

16

Docket 98-1, 98-2 (Amended Corrected Exhibits A and B).

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Shell responds that Ninth Circuit authority permits a district court to consider
hearsay in deciding whether to issue a preliminary injunction. 17 Shell takes this authority
to consider hearsay one step further, asserting that “[i]n asking the Court to ‘strike’
evidence on hearsay grounds, Greenpeace USA invites error.” 18 Shell also observes that
“Greenpeace USA has not factually disputed the accuracy of any of the statements that
it asks the Court to strike.” 19
The Court issued its preliminary injunction order on May 8, 2015. In so doing, the
Court relied heavily upon the testimony of Ms. Sweeters and Shell’s witnesses as well as
the parties’ non-hearsay exhibits as identified by Greenpeace USA in its charts, and as
to which Greenpeace USA has not raised any objection to admission.

The Court

accorded essentially no weight to the other extensive documentation submitted by each
party, except to the extent that a witness agreed with and adopted certain hearsay
statements at the preliminary injunction proceeding. And the Court has not determined—
because it was not necessary for the Court to determine on the limited record and briefing
on this topic before the Court at this juncture—whether or not the statements by other
Greenpeace entities discussing the boarding of the Polar Pioneer are admissible
nonhearsay against Greenpeace USA. 20

17

Rather, the Court simply accorded those

Docket 97 (Opp.) at 2 (citing Johnson v. Couturier, 572 F.3d 1067, 1083 (9th Cir. 2009)).

18

Id. But see Republic of the Philippines v. Marcos, 862 F.2d 1355, 1363 (9th Cir. 1988) (“It was
within the discretion of the district court to accept . . . hearsay for purposes of deciding whether
to issue the preliminary injunction.”).

19

Docket 97 (Opp.) at 4.

20

Docket 97 (Opp.) at 6–7.

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statements no weight in the issuance of the preliminary injunction against Greenpeace
USA. 21 In light of the foregoing, and because the Ninth Circuit accords discretion to the
district court to consider inadmissible evidence in a preliminary injunction proceeding, the
Court will deny the motion to strike. In so doing, the Court also seeks to accord to both
parties the complete record for appellate review.
For the foregoing reasons, IT IS ORDERED that the motions at Dockets 16, 44,
66, 84, and 88 are each DENIED.
DATED this 4th day of June, 2015 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE

21

By this sentence in the text above, the Court intends to clarify and supplant the Court’s
statement on page 4 of the preliminary injunction at Docket 111 regarding the evidence upon
which the Court relied for the issuance of the preliminary injunction.

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