BladeRoom Group Limited et al v. Facebook, Inc.

Filing 847

ORDER RE: EMERSON'S REQUEST TO "UN-ADMIT" CERTAIN EVIDENCE. Signed by Judge Edward J. Davila on 5/9/2018. (ejdlc1S, COURT STAFF) (Filed on 5/9/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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BLADEROOM GROUP LIMITED, et al.,

Case No. 5:15-cv-01370-EJD

Plaintiffs,
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ORDER RE: EMERSON’S REQUEST
TO “UN-ADMIT” CERTAIN
EVIDENCE

v.
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EMERSON ELECTRIC CO., et al.,

Re: Dkt. No. 821

United States District Court
Northern District of California

Defendants.
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Emerson moved to “un-admit” a group of exhibits it believes are inadmissible hearsay.

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Dkt. No. 821. Plaintiffs opposed the request. Dkt. No. 819. The court previously denied

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Emerson’s motion on the record. This order provides the reasoning underlying that ruling.

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I.

EMERSON WAIVED ANY OBJECTION TO THE EXHIBITS
Each of the 30 exhibits Emerson now seeks to exclude from the evidentiary record was

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admitted during trial without objection. Tr., Vol. 7, at 1385:12-1386:18 (Emerson’s counsel

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stating there is no objection to Exhibits 1430, 1435, 1437, 1446, 1452, 1458, 1479, 1491, 1590,

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1610, 1614, 1615, 1619, 1624, 1660, 1667, and 2095); Tr., Vol. 9, at 1839:21-1840:17 (admitting

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“agreed upon” Exhibits 1459, 1488, 1505, 1524, 1564, 1568, 1592, 1633, 1735, 1826, 2065 and

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2072 without objection); Tr., Vol. 12, at 2561:24-2562:8 (Emerson’s counsel stating there is no

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objection to Exhibit 2191). Plaintiffs argue that as a result, Emerson has waived any hearsay

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objection. The court agrees.

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Objections to evidence must be timely. Fed. R. Evid. 103(a)(1)(A). This rule requires an

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objection “be made as soon as the ground of it is known, or could reasonably have been known to

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the objector, unless some special reason makes its postponement desirable for him and not unfair

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Case No.: 5:15-cv-01370-EJD
ORDER RE: EMERSON’S REQUEST TO “UN-ADMIT” CERTAIN EVIDENCE
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to the offeror.” Jerden v. Amstutz, 430 F.3d 1231, 1236 (9th Cir. 2005) (quoting 21 Charles Alan

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Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure § 5037.1 (2d ed. 2005)). “The

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requirement of timely and specific objections ‘serves to ensure that the nature of the error [is]

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called to the attention of the judge, so as to alert him [or her] to the proper course of action and

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enable opposing counsel to take corrective measures.’” Id. (quoting United States v. Gomez-

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Norena, 908 F.2d 497, 500 (9th Cir. 1990)).

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An objection is “timely” under Rule 103(a)(1)(A) “if it is made as soon as the opponent

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knows, or should know, that the objection is applicable.” Id. at 1236-37 (quoting 1 Jack B.

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Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 103.11).

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Here, the record shows that Emerson knew, or certainly should have known, that a hearsay

United States District Court
Northern District of California

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objection was potentially applicable to each exhibit it now seeks to “un-admit.” According to

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Emerson, these exhibits are internal Facebook emails constituting inadmissible hearsay, and are

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not excluded from hearsay by the exception for coconspirator statements provided by Federal Rule

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of Evidence 801(d)(2)(E). But Facebook was released from the trial on May 9, 2018, due to a

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settlement with Plaintiffs - and on that same day, counsel for Plaintiffs and Emerson each

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addressed the hearsay exclusion for coconspirator statements. Tr., Vol. 5, 998:11-12 (Plaintiffs’

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counsel stating “[t]hat evidence would come in for a conspirator exception under the hearsay rule

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in any event”); 999:18-1000:5 (Emerson’s counsel stating, inter alia, “[s]o one of the things that I

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think we should be thinking about is the conspiracy issue,” and that evidence “may come in”

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under Rule 801(d)(2)(E)). There is, therefore, no reasonable explanation for Emerson to have

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waited until after the exhibits were admitted to object on hearsay grounds.

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Emerson attempts to explain its failure to object with a “running hearsay objection” it

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believes was permitted by the court. The record does not support Emerson on this point. Emerson

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relies on a side-bar conversation which occurred while Barnaby Smith was testifying, during

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which the following exchange occurred, in relevant part:

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MR. HOLTSHOUSER:
Our objection, I think, to this line of
questioning is that we’re listening to a lot of hearsay and I anticipate
its going to continue as to BladeRoom eliciting testimony as to
Case No.: 5:15-cv-01370-EJD
ORDER RE: EMERSON’S REQUEST TO “UN-ADMIT” CERTAIN EVIDENCE
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things that Facebook individuals say in meetings.
We have documents. They speak for themselves. I think to some
extent they come in.

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But if we’re going to have repeated questioning about Facebook’s
side of conversations, I think I’d like to have a running hearsay
objection to that.

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And it should be excluded. They’re not a party opponent as to us.

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THE COURT: Ok.

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Tr., Vol. 6, at 1064:25:1065:8.
The court did not intend to permit a continuing objection to any evidence by responding

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with “ok” to counsel’s statement about a running hearsay objection, but understands the record

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may be ambiguous on that point. But even construing the record to include an ambiguity, any

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United States District Court
Northern District of California

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continuing objection would have been limited to the terms of the request; that is; it would apply

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only to any “repeated questioning about Facebook’s side of the conversations” during Smith’s

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testimony - not to any documents admitted without objection. See United States v. Khan, 993

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F.2d 1368, 1377 (9th Cir. 1993) (holding that to reserve a continuing objection, the moving party

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must “request that his earlier objection apply to all other like evidence”). Because the record does

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not support a continuing objection to the exhibits, Emerson cannot explain its failure by claiming

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one was established.

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Though the court recognizes it has “broad discretion in making evidence rulings and

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handling late objections” (Home Indem. Co. v. Lane Powell Moss & Miller, 43 F.3d 1322, 1329

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(9th Cir.1995)), and that it may grant a subsequent motion to exclude evidence after it has been

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admitted, it will not do so under these circumstances. Emerson should have known the exhibits

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were subject to a hearsay objection, and its untimely decision to object after the fact has unfairly

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prevented Plaintiffs from providing a curative response at the time admission.

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This ruling is dispostive of the issue since it applies to all of the exhibits identified by

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Emerson, whether or not they could be admitted under Rule 801(d)(2)(E). Emerson’s motion will

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be denied for this primary reason.

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Case No.: 5:15-cv-01370-EJD
ORDER RE: EMERSON’S REQUEST TO “UN-ADMIT” CERTAIN EVIDENCE
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II.

SEVERAL OF THE EXHIBITS ARE ADMISSIBLE UNDER RULE 801(D)(2)(E)
Although unnecessary in light of the ruling described above, the court also makes a

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preliminary fact determination based on a preponderance of the evidence that a conspiracy existed
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between Facebook and Emerson as of April 25, 2012, for the reasons explained in Plaintiffs’ brief.

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Dkt. No. 819.
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IT IS SO ORDERED.
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Dated: May 9, 2018
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______________________________________
EDWARD J. DAVILA
United States District Judge

United States District Court
Northern District of California

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Case No.: 5:15-cv-01370-EJD
ORDER RE: EMERSON’S REQUEST TO “UN-ADMIT” CERTAIN EVIDENCE
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