MicroTechnologies, LLC v. Autonomy, Inc. et al
Filing
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Order by Chief Magistrate Judge Joseph C. Spero denying 173 Defendants' First Motion in Limine. (jcslc2S, COURT STAFF) (Filed on 12/20/2018)
< the statement has equivalent circumstantial guarantees of
trustworthiness;
(2) it is offered as evidence of a material fact;
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(3) it is more probative on the point for which it is offered than any
other evidence that the proponent can obtain through reasonable
efforts; and
(4) admitting it will best serve the purposes of these rules and the
interests of justice.
(b) Notice. The statement is admissible only if, before the trial or
hearing, the proponent gives an adverse party reasonable notice of the
intent to offer the statement and its particulars, including the
declarant’s name and address, so that the party has a fair opportunity
to meet it.
Fed. R. Evid. 807.
MicroTech argues that the testimony lacks a sufficient guarantee of trustworthiness to
satisfy part (a)(1) because MicroTech could not cross examine Scott, and that the testimony does
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not satisfy part (b) MicroTech did not have a fair opportunity to meet it. See Opp’n (dkt. 173-3).
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United States District Court
Northern District of California
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MicroTech does not argue that Scott’s testimony is not offered to prove a material fact within the
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meaning of part (a)(2), or that it is not more probative on such facts than other available evidence
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within the meaning of part (a)(3). MicroTech also does not explicitly argue that part (a)(4) is not
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satisfied, although there is a strong undercurrent to its brief that admitting the testimony would not
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serve the interest of justice.
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MicroTech’s argument under part (b) is not persuasive. That section of the rule requires a
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party seeking to introduce a statement to give its opponent notice so that the opponent has an
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opportunity to “meet” the evidence. By its terms, it does not require that the opposing party
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successfully procure the declarant to testify, and MicroTech cites no case so holding. MicroTech
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does not argue that it lacked sufficient notice of Autonomy’s intent to use Scott’s trial testimony.
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Part (b) therefore offers no basis to exclude the testimony.
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With respect to part (a)(1), requiring “circumstantial guarantees of trustworthiness”
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equivalent to an enumerated exception, MicroTech cites the Ninth Circuit’s decision in United
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States v. Sanchez Lima, 161 F.3d 545, 547–48 (9th Cir. 1998), for the proposition that courts have
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found testimony to lack a sufficient guaranty of trustworthiness where a party lacked the
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opportunity to cross examine a witness. Opp’n to Def.’s 1st Mot. at 5 n.16. The Ninth Circuit in
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fact held that the evidence in that case satisfied Rule 807, and the district court erred in excluding
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it. Sanchez-Lima, 161 F.3d at 547–48. Although the court noted that the government (the party
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opposing admission) had a chance to examine the witnesses at issue, it did not hold that a lack of
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such opportunity would be dispositive, and instead stated that “cross-examination is not required
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in every case.” Id. MicroTech’s characterization of Sanchez-Lima is inaccurate.
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MicroTech is correct, however, that other decisions have weighed the lack of opportunity
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for cross examination, citing Sanchez-Lima for its relevance, as among the factors supporting a
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conclusion that hearsay statements lacked sufficient indicia of trustworthiness to be admitted
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under Rule 807. In United States v. Rodriguez—an unpublished and non-precedential decision—
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the Ninth Circuit held that a district court did not abuse its discretion in excluding statements
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made to a defense investigator where “[t]hey were not recorded, not made under oath,” there was
“no way to tell whether they were made voluntarily,” and “the government would have been
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United States District Court
Northern District of California
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unable to cross-examine the declarant Ayala or otherwise develop Ayala’s statements.” 316 F.
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App’x 612, 615 (9th Cir. 2009). In K.C.R. v. County of Los Angeles, the Central District of
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California held that concerns regarding the risk that a witness’s audio-recorded out of court
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statement was mistaken were “especially great” due to the lack of opportunity for cross
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examination and held the statement lacked sufficient guarantees of trustworthiness, also taking
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into account the fact that the statement was not under penalty of perjury, the statement’s
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vagueness, the witness’s emotional state, and lack of opportunity for the jury to observe the
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witness’s demeanor. No. CV 13-3806 PSG (SSx), 2016 WL 9455632, at *2–3 & n.3 (C.D. Cal.
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Mar. 18, 2016). A recent Southern District of Ohio decision most clearly supports MicroTech’s
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view that lack of opportunity for cross examination is dispositive, holding that an expert report
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and incorporated videos “lack the necessary circumstantial guarantee of trustworthiness because
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they have not been subjected to cross-examination.” Miami Valley Fair Hous. Ctr. Inc. v. Metro
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Dev. LLC, No. 2:16-CV-607, 2018 WL 2416570, at *1 (S.D. Ohio May 29, 2018).
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Some circumstances of Scott’s testimony indicate trustworthiness: he testified under oath
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and penalty of perjury, with advice of counsel, about matters with which he was familiar, and was
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subject to cross examination by a skilled attorney with an interest in undermining his credibility,
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albeit not with an interest in the particular issue of MicroTech’s involvement in or awareness of
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misconduct. On the other hand, jurors would have no opportunity to observe Scott’s demeanor
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during his testimony, and MicroTech has had no real1 opportunity cross examine Scott or
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otherwise develop his testimony.
Rule 807(a)(1) asks courts to consider indicia of reliability specifically with respect to
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whether they are equivalent to one of the enumerated exceptions to the rule against hearsay. In
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this case, where Autonomy wishes to admit testimony given in the trial of a different case, the
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most analogous exception is Rule 804(b)(1). Under that rule, where a witness is unavailable, the
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witness’s past testimony may be admitted if it:
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(A) was given as a witness at a trial, hearing, or lawful deposition,
whether given during the current proceeding or a different one; and
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(B) is now offered against a party who had—or, in a civil case, whose
predecessor in interest had—an opportunity and similar motive to
develop it by direct, cross-, or redirect examination.
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United States District Court
Northern District of California
Fed. R. Evid. 804(b)(1).
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Scott’s testimony at Hussain’s trial satisfied part (A) of Rule 804(b)(1), but not part (B).
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The question, then, is whether the circumstances here evince trustworthiness equivalent to
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allowing MicroTech an opportunity to develop Scott’s testimony. Cross examination by an
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adverse lawyer at trial is significant, but is not equivalent where that attorney had no interest in
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probing Scott’s knowledge of MicroTech’s involvement with or understanding of the transactions
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at issue. Autonomy cites no case where testimony from another trial was admitted under Rule 807
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without meeting the requirements of Rule 804(b)(1), and the Court is not persuaded that any of the
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other circumstances here tip the scale enough to equal that standard.
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II.
SCOTT’S TESTIMONY IS NOT ADMISSIBLE UNDER RULE 804(b)(3)
At the hearing and in its supplemental brief, Autonomy argued that Scott’s testimony
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should be admitted as a statement against interest under Rule 804(b)(3) of the Federal Rules of
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Evidence, which in civil cases permits admission of statements that “a reasonable person in the
declarant’s position would have made only if the person believed it to be true because, when
made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a
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MicroTech had the opportunity to pose questions to Scott at his deposition for this case, but Scott
refused to answer all substantive questions.
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tendency to invalidate the declarant’s claim against someone else or to expose the declarant to
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civil or criminal liability.” Fed. R. Evid. 804(b)(3)(A); see Defs.’ Supp’l Br. (dkt. 198).
To fall within the scope of this rule, “each statement must (1) ‘solidly inculpat[e]’ the
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declarant and (2) ‘be one that a reasonable person in the declarant’s position would not have made
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unless it were true.’” United States v. Magana-Olvera, 917 F.2d 401, 407 (9th Cir. 1990) (quoting
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United States v. Monaco, 735 F.2d 1173, 1176 (9th Cir. 1984)) (alteration in original). “[T]he
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statements must, in a real and tangible way, subject the declarant to criminal liability” or other
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adverse consequences within the scope of the rule. Monaco, 735 F.2d at 1176. Even if portions of
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a narrative offered by a declarant meet that standard, a court must “inquire[] whether each of the
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statements in [the narrative] was truly self-inculpatory.” Williamson v. United States, 512 U.S.
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United States District Court
Northern District of California
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594, 604 (1994). Rule 804(b)(3) “does not allow admission of non-self-inculpatory statements,
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even if they are made within a broader narrative that is generally self-inculpatory.” Id. at 604; see
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also LaGrand v. Stewart, 133 F.3d 1253, 1267–68 (9th Cir. 1998) (“[F]ederal courts have
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concluded that a statement that includes both incriminating declarations and corollary declarations
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that, taken alone, are not inculpatory of the declarant, must be separated and only that portion that
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is actually incriminating of the declarant admitted under the exception.”).
Most of Scott’s testimony that Autonomy seeks to use is in no way inculpatory. Much of it
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consists of Scott, at the direction of the prosecutor questioning him, reading emails and other
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documents drafted by other people. To the extent that Scott discusses his own involvement, such
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testimony largely indicates that Scott did not understand the purpose of certain transactions, and
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tends to minimize his own involvement. While it is possible that portions of Scott’s testimony
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might, in conjunction with other evidence, tie him to purported misconduct, the statements
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themselves do not “solidly inculpate” Scott such that the Court can express any confidence that a
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reasonable person in his position would not have made those statements unless true. Accordingly,
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the statements are not admissible under Rule 804(b)(3).
***
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Because Scott’s testimony at Hussain’s trial is not admissible in this case under either Rule
807 or Rule 804(b)(3), Autonomy’s motion is DENIED.
IT IS SO ORDERED.
Dated: December 20, 2018
______________________________________
JOSEPH C. SPERO
Chief Magistrate Judge
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United States District Court
Northern District of California
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