Cellular Accessories For Less, Inc. v. Trinitas LLC, 2014 U.S. Dist. LEXIS 130518 (C.D. Cal. Sept. 16, 2014):  

Cellular alleges that Defendants "published one or more false statements which were intended to disparage CELLULAR ACCESSORIES's good and services." However, at the time motions for summary judgment were filed, the only evidence Cellular had produced of such statements were a declaration and deposition of its CEO Mitchell Langstein alleging he had heard from some customers that David Oakes had made certain potentially disparaging remarks to his customers via email. (E.g., Opp'n Decl. Mitchell Langstein, ¶¶ 79-86.)

This evidence suffers two defects. First, Langstein's allegation as to the contents of an email is not the best evidence of the contents of that email. "An original writing, recording, or photograph is required in order to prove its content . . . ." [*16]  Fed. R. Evid. 1002; United States v. Bennett, 363 F.3d 947, 954 (9th Cir. 2004) (holding that "a printout or other representation" of electronically stored data is the best evidence of that data). Second, even if the contents of the email could be acceptably reconstructed through testimony or declarations, Langstein nowhere directly alleges that he personally saw the emails. At best, he alleges that some of his customers alerted him to the contents of the emails. (E.g., Ex. A, Decl. Melanie Cogburn, at transcript pages 79-83.) As there is no direct evidence from those customers (nor does there appear to be any forthcoming at trial), Langstein's statements, based on inadmissible hearsay, are not enough to prove the contents of the email. Fed. R. Evid. 801-802.

Cellular attempts to cure these defects by attaching to its reply an email purported to be from another of Cellular's customers, Gary Merritt. (Ex. N, Iloputaife Decl.) This email might meet the best evidence rule-although it is a third party's email quoting the Oakes email, not the Oakes email itself, which could raise hearsay issues.

In any event, Cellular has, without explanation, introduced this evidence only at the reply stage, thus denying Defendants the opportunity to respond to it. Given that the email, if authentic, [*17]  would already have been in Cellular's possession at the time the company initiated this proceeding, the Court sees no reason for such a long delay in presenting this evidence. The Court has the discretion to ignore evidence introduced for the first time in a reply brief, In re McAllister, No. BAP CC-13-1578, 2014 WL 3955008 (B.A.P. 9th Cir. Aug. 13, 2014) ("[C]onsideration of new arguments or evidence in a reply falls within the discretion of the trial court."), and because considering the email at this stage would prejudice the Defendants for no good reason, the Court chooses not to do so.

Thus, Defendants have successfully pointed to an absence of any admissible evidence to show publication of a disparaging statement that induced others not to deal with Plaintiff, an essential element of the trade libel claim. Summary judgment is granted to the Defendants on this claim.