United Energy Trading, LLC v. Pacific Gas & Electric Co. et al

Filing 258

ORDER by Judge Richard Seeborg denying 234 Motion ; denying 250 Motion to Exclude. (cl, COURT STAFF) (Filed on 10/16/2018)

Download PDF
1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 UNITED ENERGY TRADING, LLC, 10 Case No. 15-cv-02383-RS Plaintiff, 11 United States District Court Northern District of California v. 12 PACIFIC GAS & ELECTRIC CO., 13 Defendant. 14 ORDER DENYING UNITED ENERGY TRADING, LLC'S MOTION TO EXCLUDE & PACIFIC GAS AND ELECTRIC COMPANY'S MOTION TO EXCLUDE 15 I. INTRODUCTION 16 United Energy Trading, LLC (“UET”) and Pacific Gas and Electric Company (“PG&E”) 17 bring motions to exclude expert testimony under Federal Rule of Evidence 702 and Daubert v. 18 19 20 Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993).1 UET moves to exclude the testimony of PG&E’s experts Daniel Ray and Michael Quinn, Ph. D. PG&E moves to exclude the testimony of UET’s expert Jesse David, Ph. D. For the reasons explained below, both UET’s and PG&E’s 21 motions are denied. 22 23 24 25 26 27 28 1 The facts of this case are set forth in this Court’s prior order regarding motions for partial summary judgment and need not be repeated here. II. LEGAL STANDARD 1 2 To testify at trial as an expert, Rule 702 of the Federal Rules of Evidence requires that the 3 witness be qualified by “knowledge, skill, experience, training, or education.” Fed. R. Evid. 702. 4 Even if a witness is qualified as an expert in a particular field, any scientific, technical, or 5 specialized testimony is admissible only if it (a) “will help the trier of fact to understand the 6 evidence or to determine a fact in issue,” (b) “is based upon sufficient facts or data,” (c) “is the 7 product of reliable principles and methods,” and (d) “ the expert has reliably applied the principles 8 and methods to the facts of the case.” Id. 9 Rule 702 does not permit irrelevant or unreliable testimony. Daubert, 509 U.S. at 589. Expert opinions are relevant if the knowledge underlying them has a “valid connection to the 11 United States District Court Northern District of California 10 pertinent inquiry.” United States v. Sandoval-Mendoza, 472 F.3d 645, 654 (9th Cir. 2006) 12 (internal quotation marks and alteration omitted). “Expert testimony which does not relate to any 13 issue in the case is not relevant and, ergo, non-helpful.” Daubert, 509 U.S. at 590 (citing 3 14 Weinstein & Berger ¶ 702[02], p. 702-18) (internal quotation marks omitted). Expert opinion 15 testimony is reliable if such knowledge has a “basis in the knowledge and experience of [the 16 relevant] discipline.” Id. at 592. Courts should consider the following factors when evaluating 17 whether an expert’s proposed testimony is reliable: (1) “whether a theory or technique can be (and 18 has been) tested,” (2) “whether the theory or technique has been subjected to peer review and 19 publication,” (3) the known or potential error rate of the particular scientific theory or technique, 20 and (4) the degree to which the scientific technique or theory is accepted in a relevant scientific 21 community. Id. at 593-94. This list is not exhaustive, however, and the standard is flexible. 22 Kumho Tire Co. v. Carmichael, 526 U.S. 137, 151 (1999). The Daubert inquiry “applies not only 23 to testimony based on ‘scientific’ knowledge but also to testimony based on ‘technical’ and other 24 ‘specialized’ knowledge.” Id. at 141. 25 The task is not to “decid[e] whether the expert is right or wrong, just whether his testimony 26 has substance such that it would be helpful to a jury.” Alaska Rent-A-Car, Inc. v. Avis Budget 27 Grp., Inc., 738 F.3d 960, 969-70 (9th Cir. 2013). Courts may not exclude testimony because it is 28 CASE NO. 2 15-cv-02383-RS 1 impeachable. Id. at 969. “Vigorous cross-examination, presentation of contrary evidence, and 2 careful instruction on the burden of proof are the traditional and appropriate means of attacking 3 shaky and admissible evidence.” Daubert, 509 U.S. at 596. The focus of the inquiry is thus on 4 the principles and methodology employed, not the conclusions reached by the expert. See id. at 5 595. Ultimately, the purpose of the assessment is to exclude speculative or unreliable testimony to 6 ensure accurate, unbiased decision-making by the trier of fact. “Nothing in either Daubert or the 7 Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to 8 existing data only by the ipse dixit of the expert.” Kumho, 526 U.S. at 157 (internal quotation 9 marks omitted). Further, although an expert may not adopt another’s data without verifying the validity and reliability of that data, Rule 703 allows an expert to depend on facts or data relied 11 United States District Court Northern District of California 10 upon by experts in the particular field in forming opinions or inferences upon the subject; an 12 expert is not required to testify only upon data the expert has personally gathered or tested. See 13 Fed. R. Evid. 703. III. DISCUSSION 14 15 A. UET’s Motions 16 1. Motion to Exclude Daniel Ray 17 PG&E’s expert Daniel Ray is a Certified Public Accountant, a Certified Fraud Examiner, 18 Certified in Financial Forensics, and a former Federal Bureau of Investigations agent. Ray has 35 19 years of experience analyzing accounting records and dealing with fraud-related issues. Ray 20 offers opinions regarding PG&E’s billing practices. Specifically, his testimony details how 21 PG&E’s billing practices function and opines that there is no indicia of fraud or an intent to 22 defraud UET by PG&E under any of UET’s theories. UET advances several arguments for 23 excluding Ray’s expert testimony, labelling his opinions as unreliable, proffering impermissible 24 legal conclusions, and lacking any appreciable methodology, such that Ray’s opinions will not 25 assist the jury. UET’s arguments ultimately are appropriate for cross-examination but not 26 exclusion under Daubert. 27 UET’s main criticisms of Ray’s reliability focus on his parroting of PG&E’s position 28 CASE NO. 3 15-cv-02383-RS 1 without independently verifying the information PG&E provided to him, or analyzing additional 2 documents such as customer blue bills. UET further contends that Ray fails to articulate why his 3 review of 35 customer accounts, many of which were highlighted in UET’s complaint and 4 identified by UET’s expert Gregory Thaler as exemplars of the fraud schemes, reliably allowed 5 him to extrapolate opinions about all of UET’s approximately 120,000 accounts. UET presents 6 reasons to question or discredit Ray’s opinions. It has not, however, shown that his opinions are 7 methodologically flawed as opposed to fodder for cross examination. 8 First, while UET is correct that an expert may not rely merely on the self-serving 9 projections of his client, there is nothing in the record to suggest that Ray rested his valuation on PG&E’s mere “say-so.” Clear-View Techs., Inc. v. Rasnick, No. 13-cv-02744-BLF, 2015 WL 11 United States District Court Northern District of California 10 3505003, at *3 (N.D. Cal. June 2, 2015). Ray engaged in his own independent analysis of the 12 customer data PG&E provided to him, consistent with his obligations as an expert under Rule 702 13 and Daubert. The validity of the underlying data on which Ray relies may be open to attack, but 14 his approach to analyzing that data is not outside the realm of proper expert testimony. The same 15 goes for Ray’s lack of reliance on other sources, such as customer blue bills, as the focal point of 16 his analysis or his decision to limit review to 35 accounts. 17 While UET may disagree with Ray’s decision to limit the scope of his expert analysis, his 18 methods are not so inherently suspect as to warrant excluding his testimony altogether. None of 19 the cases UET invokes stand for the proposition that expert testimony is admissible only where it 20 relies on expansive sampling, as UET seems to suggest. See Alaska Rent-A-Car, 738 F.3d at 969- 21 70 (concluding that expert’s extrapolation from 5% of the statewide rental car market went to 22 impeachment, not admissibility). UET’s reliance on Abu-Lughod v. Calis is readily 23 distinguishable. In that case, an expert failed to provide any sound explanation for non-random 24 sampling of the data and her chosen sample sizes such that the court could not be confident the 25 expert applied the sampling methodology appropriately. Abu-Lughod v. Calis, No. CV 13-2792 26 DMG (GJSx), 2015 WL 12731921, at *4 (C.D. Cal. July 1, 2015). By contrast, in Alaska Rent-A- 27 Car, the court concluded the expert provided adequate reasoning for limiting his analysis to one 28 CASE NO. 4 15-cv-02383-RS 1 city as a means of extrapolating statewide figures. Alaska Rent-A-Car, 738 F.3d at 968. 2 Here, Ray provides reasons for limiting his analysis to the 35 accounts, the bulk of which 3 were highlighted in UET’s complaint and the report of UET’s expert, Thaler. (See UET Ex. O to 4 Capritta Decl. at 187:9–188:11 (Dkt. 250-16) (“Ray Deposition”) (explaining that 15 of the 5 accounts he analyzed were identified in UET’s complaint and Thaler’s report as exemplars of the 6 Credit Energy Scheme and why he analyzed them).) That Ray did not review all approximately 7 120,000 accounts, or used some other means to analyze a representative sample of the total 8 population, goes to the weight of his opinions, not their admissibility. “Challenges that go to the 9 weight of the evidence are within the province of a fact finder, not a trial court judge.” City of 10 United States District Court Northern District of California 11 Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1044 (9th Cir. 2014). UET further argues that Ray’s opinions in both his report and deposition are “riddled” with 12 legal opinions and conclusions such that they are wholly inadmissible as a matter of law. 13 Specifically, UET contends that Ray in essence will tell the jury that PG&E complied with the 14 applicable laws and regulations, and that such testimony constitutes a legal issue on which an 15 expert may not give an opinion. (See, e.g. UET Ex. P to Capritta Decl. at 13 (Dkt. 250-17) (“Ray 16 Report”) (“[O]n those occasions when PG&E did not remit any payment, or did not remit a full 17 payment, to UET, PG&E was following the payment allocation procedure mandated by state law 18 and the CPUC as set forth in PG&E’s CPUC-approved Gas Rules.”); Ray Deposition at 80:3–12 19 (“[Question] [Y]ou’ve . . . offered the opinion . . . that what PG&E is doing is appropriate under 20 the gas rules, correct? [Answer] Correct, with respect to the . . . application of . . . partial 21 payments to first satisfy its outstanding debt in connection with past-due debt . . . consistent with 22 the tariffs and the gas rules.”).) Moreover, UET insists Ray’s opinion contradicts this Court’s 23 prior summary judgment order regarding testimony relative to compliance or non-compliance with 24 the Gas Rules, tariffs, or CPUC decisions. 25 While the Ninth Circuit has held that an expert may not offer a legal conclusion, United 26 States v. Diaz, 876 F.3d 1194, 1197 (9th Cir. 2017), the court has also held that “if the terms used 27 by an expert witness do not have a specialized meaning in law” and “do not represent an attempt 28 CASE NO. 5 15-cv-02383-RS to instruct the jury on the law,” or “how to apply the law to the facts of the case, the testimony is 2 not an impermissible legal conclusion.” Id. at 1199. In Diaz, expert testimony was deemed 3 admissible because it operated to assist the jury, was based on a review of the relevant facts, used 4 legal terms in their ordinary, everyday sense, and did not substitute the expert’s opinion for that of 5 the jury. Id. Applying the court’s reasoning to these facts, expert testimony may assist the jury 6 with regard to understanding PG&E’s billing practices. Accounting principles are not a matter of 7 common knowledge for the majority of the public, and so Ray’s testimony potentially could 8 enlighten the jury on how to analyze accounts for fraud. Ray’s opinions are grounded on a review 9 of PG&E’s billing practices, customer accounts, the tariffs, and the CPUC decision. Ray did not 10 use any specialized legal terms to describe PG&E’s compliance with proper billing practices. Cf. 11 United States District Court Northern District of California 1 Pokorny v. Quixtar, Inc., No. 07-00201 SC, 2007 WL 1932922, at *3 (N.D. Cal. June 29, 2007) 12 (barring admission of an expert opinion for expressing a legal opinion on a distinct legal term: 13 “unconscionable”). Ray did not substitute his judgment for the jury’s, but instead provides his 14 professional opinion about whether PG&E’s conduct acted in conformance with its understanding 15 of the Gas Rules. This does not suggest, of course, that Ray or any other expert will be free to 16 opine that PG&E did not violate federal law, for that remains a question for the jury to determine. Turning to this Court’s prior summary judgment order, UET carries it too far. That order 17 18 does not state that PG&E’s belief in its compliance with Gas Rule 23 was definitively wrong. 19 Rather, the order simply precludes PG&E from asserting that the California Public Utilities 20 Commission (“CPUC”) unambiguously decided that PG&E’s allocation practices were and are 21 compliant with Gas Rule 23. PG&E remains free to argue that its interpretation of Gas Rule 23 22 remains correct.2 Accordingly, the motion to exclude Ray’s testimony is denied. 23 24 25 26 27 2 UET’s contention that Ray is incompetent to opine on PG&E’s compliance with applicable laws and regulations because he is not an expert on the interpretation of Gas Rules, tariffs, and CPUC decisions is off the mark. Ray is qualified to opine on indicia of accounting fraud, and his report and deposition focuses on that subject. Moreover, UET has not shown how accounting in the natural gas industry is sufficiently different from other industries such that Ray’s accounting expertise would be inapplicable to that industry. 28 CASE NO. 6 15-cv-02383-RS 1 2. Motion to Exclude Michael Quinn 2 UET also moves to exclude Michael Quinn’s testimony, arguing that his opinions are 3 unreliable, fail to apply principles and methodology to the facts of this case, and will not assist the 4 jury. Quinn is an expert in economics with over 20 years of experience in the natural gas industry. 5 His initial report focused generally on the background of the natural gas market and the regulatory 6 structure governing PG&E and Core Transport Agents (“CTAs”). Quinn’s rebuttal report 7 addressed the opinions of Jesse David, UET’s proffered expert on lost profits. UET attacks 8 Quinn’s opinions in both respects as inadmissible for different reasons. These points, however, 9 are better made in cross-examination. 10 First, UET argues that Quinn’s initial report should be excluded as providing irrelevant United States District Court Northern District of California 11 history, the facts of which are not contested in this case and would not be helpful to the jury. 12 Quinn’s opinions, however, could provide valuable background for the jury that is likely 13 unaccustomed to the natural gas market in California and thereby assist it in understanding the 14 complex regulatory background governing the role of PG&E and the CTAs. Cf. Stambolian v. 15 Novartis Pharm. Corp., No. 12 Civ. 4378, 2013 WL 6345566, at *8 (C.D. Cal. Dec. 6, 2013) 16 (admitting expert testimony concerning the “complex regulatory framework governing . . . 17 pharmaceutical medical products” because it “will be helpful to members of the jury who are 18 likely not familiar with the intricacies of FDA pharmaceutical drug approval and regulation 19 process”). Although Quinn does not present himself as a regulatory expert per se, he is an expert 20 in the economics of the natural gas industry. See id. (“Qualification is viewed liberally and may 21 be based on a broad range of skills, knowledge, training, and experience.”). 22 Second, UET asserts that Quinn’s rebuttal report testimony, in which he calculated UET’s 23 mitigation profits and attacked the conclusion of UET’s expert, should be excluded. UET reasons 24 that Quinn relied on insufficient sources and improperly asserted economic platitudes that failed to 25 analyze the reality of UET and PG&E’s circumstances. None of UET’s reasoning is persuasive. 26 UET criticizes Quinn for basing his opinions regarding mitigation (whereby UET sold “green gas” 27 to customers who paid a premium to purchase carbon offsets paired with their gas to offset their 28 CASE NO. 7 15-cv-02383-RS 1 greenhouse gas emissions, in addition to purchasing renewable energy certificates (Ex. S to 2 Capritta Decl. at 5 (Dkt. 250-20) (“Quinn Rebuttal Report”))) on the unsupported assumption that 3 UET would not have marketed “green gas” if not for PG&E’s fraud. Quinn relied upon the 4 declaration of Michael Huggins, UET’s managing director, for the fact that in 2015, UET began 5 exploring “green gas” marketing efforts as a result of PG&E’s allegedly improper practices. 6 (Quinn Rebuttal Report at 5 (citing Huggins Decl. at 4); see also Ex. 6 to Sias Decl. ¶¶ 18–19 7 (Dkt. 234-8) (“Huggins Declaration”) (“[W]e explored selling carbon offsets and renewable 8 energy credits bundled with our gas service. PG&E’s fraudulent billing practices caused UET to 9 change its marketing practices.”).) Given that one of UET’s executives affirmatively stated UET engaged in “green gas” marketing due to PG&E’s alleged fraudulent behavior, Quinn’s 11 United States District Court Northern District of California 10 assumption was not so outside the realm of reasonable expert opinion as to warrant excluding his 12 testimony. UET fails to demonstrate why it is unreasonable for an expert to rely on statements 13 made in a sworn, signed declaration absent evidence rebutting the underlying statements. Abu- 14 Lughod, 2015 WL 12731921, at *4. UET’s frustration with Quinn’s inference that “green gas” 15 customers would have purchased regular brown gas instead of another premium product in the 16 absence of PG&E’s alleged conduct can be used to attack the weight of his opinions, but not their 17 admissibility. UET also attacks Quinn’s use of Huggins’s “Green Gas and Customer Rec Spreadsheet” 18 19 (Ex. T to Capritta Decl. (Dkt. 250-21)) as dependent on unreliable internal calculations that Quinn 20 should have compared against UET’s actual financial information. UET, however, does not 21 provide evidence to suggest the numbers contained on the spreadsheet are incorrect. Moreover, 22 Huggins admitted at his deposition that the number of customers in the spreadsheet “is based on 23 weekly reports that I would get . . . saying they signed up X amount of green customers, and then I 24 would just put them in here.” (UET Ex. A to Capritta Decl. at 322:22–25 (Dkt. 250-2) (“Huggins 25 Deposition”).)3 26 3 27 UET also criticizes Quinn’s purported reliance on Huggins’s 2013 “Blue Spruce Projected Revenue” spreadsheet (Ex. U to Capritta Decl.), however this document is not cited in his report. 28 CASE NO. 8 15-cv-02383-RS 1 UET condemns Quinn’s opinion, reflected in both his rebuttal report and deposition, 2 attacking its expert’s conclusion UET decided to curtail marketing in 2014 for economically 3 rational reasons, without offering his own opinion on what was economically rational for UET to 4 do at that time. UET can certainly bring to the jury’s attention the fact that Quinn limited his 5 opinion to a criticism of UET expert David’s conclusions but offered none of his own. At this 6 stage, however, Quinn’s opinion, however limited, is not so inherently suspect as to bar its 7 consideration by the jury. UET does not suggest why an expert must do more than contradict 8 another expert opinion’s evidentiary basis in order to survive Daubert. 9 Finally, UET dismisses Quinn’s rebuttal report and deposition as containing mostly generalities regarding market principles and conclusions, without applying them to the specific 11 United States District Court Northern District of California 10 facts of this case. The deposition transcript, however, reveals that much of what UET laments as 12 generalities were actually repeated attempts by UET to get Quinn to give an opinion on whether 13 UET’s marketing decision was rational or irrational. (See, e.g., Ex. R to Capritta Decl. at 167:4– 14 171:19 (Dkt. 250-19) (“Quinn Deposition”) (extended dialogue between UET’s counsel and 15 Quinn).) In any case, UET does not explain how such “generalities” by Quinn taint the overall 16 admissibility of his opinions. The one case UET invokes in support is inapposite: in that case, an 17 expert opinion was excluded because the expert pointed to no authority in support of his 18 foundational assumptions, nor identified any support derived from the reports he did consult. 19 Newkirk v. ConAgra Goods, Inc., 727 F. Supp. 2d 1006, 1017 (E.D. Wash. 2010). Furthermore, 20 Quinn does state how his general market principles apply to this case. (Quinn Deposition at 21 190:14–17 (“Nothing I’ve looked at for this case would cause me to conclude . . . that [the] 22 generally accepted theory and empirical observation in a number of industries [that it becomes 23 more difficult to acquire customers the more of them you already have] doesn’t hold here.”).) 24 Accordingly, the motion to exclude Quinn’s testimony is denied. 25 B. PG&E’s Motion 26 1. Motion to Exclude Jesse David 27 UET’s economics expert Jesse David has over 20 years of experience performing 28 CASE NO. 9 15-cv-02383-RS economic analysis. David offers opinions regarding how much lost profits UET incurred due to 2 PG&E’s averred fraudulent conduct and on UET’s 2014 decision to scale back its marketing. He 3 uses a “but-for” model to calculate UET’s alleged lost profits incurred as a result of PG&E’s 4 purported improper conduct. (See UET Ex. E to Capritta Decl. at 96:2–25 (Dkt. 247) (“David 5 Deposition”); Ex. 4 to Sias Decl. ¶¶ 8, 13–14 (Dkt. 234-6) (“David Report”).) According to 6 David, “but-for” PG&E’s conduct and UET’s shift in marketing strategy, UET would have 7 reached its target number of customers and UET is entitled to the lost profits associated with those 8 “lost” customers. David subsequently provided an alternative calculation alongside his original 9 one, whereby he stopped calculating damages in June 2015 instead of continuing through to the 10 end of the year. Additionally, David opines that it was “economically rational” for UET to scale 11 United States District Court Northern District of California 1 back its marketing around the beginning of 2014 in response to PG&E’s alleged behavior. (David 12 Report ¶ 13.) PG&E challenges David’s testimony on numerous grounds, claiming that his 13 methodology in calculating UET’s lost profits is inherently flawed and provides no analysis to 14 support his opinion that UET’s decision was “economically rational.” PG&E’s arguments likely 15 comprise appropriate impeachment material with which to attack David’s opinions, but do not 16 amount to grounds for excluding them. 17 PG&E contends that David’s failure to subtract UET’s additional profits when it shifted to 18 selling “green gas” offsets and RECs in response to PG&E’s alleged conduct from his calculation 19 of alleged lost profits is fatal to his opinion’s admissibility. In PG&E’s view, UET”s “green gas” 20 mitigation strategy would not have occurred “but-for” PG&E’s alleged conduct in the same way 21 that UET lost profits in the same time frame, and so any damages calculation must account for 22 both mitigation and lost profits. PG&E, however, provides no analysis demonstrating that David 23 applied flawed methodology in his calculation of UET’s lost profits. PG&E simply claims that 24 David is incorrect with regard to ultimate damages: lost profits minus mitigation. There is nothing 25 showing that David was wrong in his approach in determining UET’s losses in the first instance. 26 Contrary to PG&E’s interpretation, Brandon & Tibbs v. George Kevorkian Accountancy Corp., 27 226 Cal. App. 3d 442 (1990) does not dictate otherwise. That case was not about expert 28 CASE NO. 10 15-cv-02383-RS 1 admissibility, but instead concerned the trial court’s failure to account for plaintiff’s mitigation of 2 its losses when awarding damages. See id. at 461, 463. What, if anything, UET is ultimately 3 entitled to recover is for the trier of fact to decide. PG&E may make its case to the jury for why it 4 is not ultimately responsible for any of UET’s lost profits in light of its “green gas” mitigation 5 efforts—if it is established at trial that they indeed are a form of mitigation—but it has not shown 6 that David’s methodology is too flawed to prevent the jury from considering his testimony. 7 The same goes for David’s alternative calculation. PG&E sees that analysis, whereby he 8 stops his lost profits analysis in June 2015 when UET began to turn a profit from “green gas,” as 9 an arbitrary way to avoid having to account for the profits UET made in shifting its marketing strategy. While it certainly is coincidental that David would proffer a calculation that 11 United States District Court Northern District of California 10 conveniently terminates damages at the moment UET’s “green gas” became profitable, this goes 12 to impeachment of David’s testimony, not exclusion. The alternative calculation used the same 13 methods and data as the original calculation, which as just discussed is admissible. (David 14 Deposition at 157:12–18.) 15 Finally, PG&E asserts David provided no analysis to support his opinion that UET’s 16 decision in 2014 to curtail marketing in response to PG&E’s alleged impropriety was an 17 “economically rational” decision. PG&E invokes the fact that UET was still profitable when it cut 18 back on marketing, and that UET’s actual revenue as a share of billed revenue increased between 19 2012 and 2013, as calculated by David. These arguments, however, represent fodder for cross- 20 examination, not the basis for exclusion under Daubert. Similar to its adversary’s arguments 21 above, PG&E attacks David’s opinion for not undertaking an independent analysis, but instead 22 relying upon data provided by UET and the testimony of its officials. These arguments are 23 unpersuasive. Additionally, PG&E’s proffered cases are readily distinguishable. Conde v. 24 Velsicol Chem. Corp. dealt with several experts’ opinions that were contradicted by nineteen 25 formal peer-reviewed studies. 24 F.3d 809, 813-14 (6th Cir. 1994). There is no such direct 26 contradiction of David’s testimony. Likewise, in Three Crown Ltd. P’ship v. Salomon Bros., Inc., 27 an expert opinion’s assumptions had no basis in the record. 906 F. Supp. 876, 894 (S.D.N.Y. 28 CASE NO. 11 15-cv-02383-RS 1 1995). Here, David has grounded his opinion in the record. Accordingly, the motion to exclude 2 David’s testimony is denied. 3 C. Sealing Motions 4 In connection with their motions to exclude, UET and PG&E have submitted five sealing 5 motions either to redact or seal entirely exhibits relied upon in their motions to exclude (or, in 6 some cases, portions of the briefs). (See Dkt. 233, Dkt. 246, Dkt. 249, Dkt. 251, Dkt. 255.) In 7 many instances, the parties fail to comply with the local rules regarding sealing motions, such as 8 failing to file a responsive declaration establishing documents they designated qualify as sealable, 9 per Local Rule 79-5(e). For example, UET never filed a responsive declaration for PG&E’s sealing motion (Dkt. 233) filed in conjunction with PG&E’s motion to exclude. In several other 11 United States District Court Northern District of California 10 instances, the parties fail to offer a basis for sealing other than the fact that the document was 12 marked confidential pursuant to a protective order. (See, e.g., Capritta Decl., Dkt. 251.) Local 13 Rule 79-5(d)(1)(A) explicitly states, “[r]eference to a stipulation or protective order that allows a 14 party to designate certain documents as confidential is not sufficient to establish that a document, 15 or portions thereof, are sealable.” Other times, there appears to be confusion between the parties 16 as to what document is proposed to be sealed. (Compare Capritta Decl., Dkt. 251, with Sias Decl., 17 Dkt. 253 regarding Exhibit E.) The parties also fail, at times, to highlight portions of documents 18 to indicate which portions of the unredacted version of the document should be omitted from the 19 redacted version per Local Rule 79-5(d)(1)(A)(D), (d)(2). (See, e.g., Dkt. 251, Ex. E, Ex. P.) 20 Some of the documents, however, appear appropriate for redactions or sealing. For 21 example, the parties are correct to note that confidential and personally identifiable information 22 regarding PG&E’s customers should be kept from public view. (See, e.g., Dkt. 233, Ex. 14.) In 23 other instances, there has been an adequate showing that material qualifies as trade secrets eligible 24 for sealing. (See Dkt. 251, Ex. L.) 25 Accordingly, no later than October 25, 2018, the parties shall engage in meet and confer 26 negotiations to attempt to agree on the narrowest possible sealing order, and shall jointly submit 27 such a proposed order no later than November 1, 2018. The proposed order shall clearly identify 28 CASE NO. 12 15-cv-02383-RS 1 any documents, or portions thereof, that the parties agree should be filed under seal (either entirely 2 or with redactions), and concisely state the basis for such sealing. The parties shall clearly 3 indicate where their respective declarations, either already submitted or new declarations, provide 4 sufficient grounds to seal each document requested to be sealed. To the extent the parties are 5 unable to reach agreement as to the propriety of sealing any particular material, the proposed order 6 should include brackets or other indications sufficient to allow the Court to decide the dispute and 7 enter the proposed order by accepting or rejecting the bracketed language. The proposed order 8 should be one document, which in one fashion or another, will dispose of all five sealing motions 9 identified above. IV. CONCLUSION 10 United States District Court Northern District of California 11 12 For the reasons stated above, UET’s motions to exclude and PG&E’s motion to exclude are each denied. 13 14 IT IS SO ORDERED. 15 16 17 18 Dated: October 16, 2018 ______________________________________ RICHARD SEEBORG United States District Judge 19 20 21 22 23 24 25 26 27 28 CASE NO. 13 15-cv-02383-RS

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?