New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

Commercial Litigation and Arbitration

New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
Commercial Litigation and Arbitration
« Back to Complex Lit Blog

Internet Evidence — Adversary’s Website Admissible as Party Admission and For Impeachment Purposes

Download PDF

San Diego Gas & Elec. Co. v. ABB, Inc., 2016 U.S. Dist. LEXIS 157346 (S.D. Cal. Nov. 14, 2016):

Plaintiffs San Diego Gas & Electric Company ("SDG&E") and those certain underwriters at Lloyds of London ("Underwriters") subscribing to policy numbers DG 103412 and DG 103712 (collectively "Plaintiffs"), have filed a First Amended Complaint ("FAC") alleging negligence, strict product liability, breach of express warranty, and breach of contract. See Doc. No. 4. Defendants ABB, Inc. ("ABB") and ABB Power T&D Company, Inc. ("ABB Power," collectively "Defendants") move for partial summary judgment of Plaintiffs' claims. [*2]  See Doc. No. 15. Plaintiffs filed an opposition to Defendants' motion, to which Defendants replied. See Doc. Nos. 21, 25. The Court found the matter suitable for determination on the papers and without oral argument pursuant to Civil Local Rule 7.1.d.1. For the reasons set forth below, the Court DENIES Defendants' motion for partial summary judgment.

***

Factual Background

This action arises out of an incident which occurred at Plaintiffs' power facility located in Bonita, California. This facility is known as the San Miguel substation, which provides power to San Diego residents. On February 14, 2013, one of the facility's transformers3 (the "subject transformer") ignited and caused substantial damage to Plaintiffs' property. Plaintiffs attribute the incident to an allegedly [*3]  defective transformer bushing ("subject bushing") sold by ABB, and installed by ABB Power. Plaintiffs seek more than $7 million in damages.

3   A transformer assists in the distribution of electricity by transforming voltage and current levels of electricity to enable distribution of power between electrical grids. Doc. No. 25-2 at 2. A bushing forms the terminal that connects the transformer windings from the input to the output between the electrical grid. Id. at 3.

***

Discussion

I. Defendants' Evidentiary Objections

As an initial matter, Defendants object to evidence submitted by Plaintiffs in opposition to Defendants' motion for partial summary judgment. Doc. No. 25-3. Defendants raise fourteen objections to four different declarations. See id. Each declaration, and Defendants' objections thereto, will be considered in turn.

**

C. Declaration of James Baker (April 4, 2016)

Defendants list four objections to James Baker's declaration. Defendants object to Exhibit A, which contains a printout of a portion of the ABB website on the basis of hearsay, lack of authentication, and lack of foundation. Exhibit A, however, is admissible as an admission of a party opponent. See Fed. R. Evid. 801(d)(2). Exhibit A is also admissible to impeach Defendants. Moreover, Mr. Baker provides the requisite authentication and foundation for Exhibit A. Accordingly, the Court OVERRULES Defendants' objection number 7.

Defendants' three other objections to Mr. Baker's declaration seek to exclude various portions of the declaration on the basis of the parol evidence rule and the secondary evidence rule. The Court SUSTAINS objections numbered 8-10. See Cal. Code Civ. Proc. § 1856; Fed. R. Evid. 1004.

Share this article:

Facebook
Twitter
LinkedIn
Email

Recent Posts

(1) FRAP 38 Sanctions Inapt for Appeal That Is Weak — “Borderline Frivolous” — Test Is Whether Appellant Should Have Known the Appeal Had Absolutely No Chance of Success — (2) Lay Opinion Testimony under Rule 701: Nub of Helpfulness Requirement Is to Exclude Testimony When the Witness Is No Better Suited Than the Jury to Assess the Issue; (3) Appeals: No Appeal from Denial of Motion for Judgment As a Matter of Law Unless Appellant Made That Motion Before Case Was Submitted to Jury

(1) § 1927 and Inherent Power Sanctions — Extrajudicial Misconduct After Obtaining Verdict: Filing Lis Pendens Based on False Statements and in Violation of Governing Law, Filing Fraudulent Abstracts of Judgment That Represented They Had Been Court-Issued; (2) Rule 37 Sanctions for Baseless Motion to Compel Required Unless Target Shows That the Motion Was Substantially Justified Or Other Circumstances Make An Award Of Expenses Unjust

Rule 37 Dismissal Factors (10th Circuit) — Rule 37(d) Sanctions Apply Without Regard to Whether the Court Has Ordered the Delinquent Party to Appear for His, Her or Their Deposition

Rule 37 Dismissal Factors (Sixth Circuit) — Refusal to Answer Deposition Questions on Relevancy Grounds Is Not Valid Rule 30(c)(2) — Pro Se Deponent’s Attendance At Zoom Deposition While Driving A Semi, Refusing to Answer Questions, Inter Alia, Held Contumacious

Rule 26(a)(1) Disclosures and Rule 37 Preclusion: Rule 26 Does Not Require Disclosure of Legal Theories Underlying Damages Computations Provided Pursuant to 26(a)(1)(A)(i)

Rule 37 Sanctions: (1) Forfeiture of Objections to Produce Specific Categories of Documents (Including Tax Returns, Social Media Passwords) as Sanction for Violation of Discovery Order — (2) Default Judgment for Multiple Violations of Discovery Orders — (3) Ninth Circuit’s 5-Factor Test for Dismissal or Default Sanction — (4) Three Additional Factors Considered by Court of Appeals in Assessing Whether Lesser Sanctions Were Adequately Considered — (5) District Court Need Not Recite Each Factor: It Suffices If Record Permits Appellate Court to Apply Them — (6) Public Policy Favoring Disposition of Cases on the Merits Is Not Dispositive Where At Least 4 Factors “Support,” Or 3 Factors “Strongly Support,” Dismissal/Default — (7) And Lends Little Support to A Party Whose Conduct Impedes Adjudication on the Merits — (7) Order to Show Cause Why FRAP 38, § 1927 and Inherent Power Sanctions Should Not Issue for Multiple Misstatements Of Counsel At Oral Argument

Electronic Spoliation Sanctions: “Intent to Deprive” in Rule 37(e)(2) Means Willful Destruction of Evidence to Avoid Its Discovery by an Adverse Party — Relevant Circumstantial Evidence in Determining “Intent to Deprive” — Rule 37(e)(2)(C)’s Standards Trump Circuit’s Multi-Factor Test for Determining Whether Dismissal Is Appropriate — No Prejudice Required for 37(e)(2) Sanctions Because Intent to Deprive Creates Inference the Loss of Information Favored the Spoliator

Sanctions and Appealability — Fifth Circuit’s 2023 Survey of Circuit Cases Concerning Whether Judgment of Dismissal As a Sanction Bars Review of Earlier Sanctions Orders Due to Lack of Jurisdiction or Whether The Decision to Review Pre-Dismissal Sanctions Orders Is Prudential

Sanctions and Appealability — Prior Sanctions Orders Do Not Merge into Judgment of Dismissal Imposed As Sanction under Rules 16(f), 37(b) and 41(b) and Are Unappealable — Courts of Appeal Differ As to Whether This Lack of Reviewability Is Jurisdictional or Discretionary (Jurisdictional in Second Circuit)

Sanctions Enforcement and Appealability: Failure to Pay Rule 37 Sanctions and Otherwise Comply with Discovery Orders Leads to Dismissal under Rule 41(b) — Second Circuit Factors for Dismissal for Failure to Prosecute or Comply with Court Orders — Belated, Partial Compliance with Orders Does Not Deprive District Court of Discretion to Dismiss Based on Continuing Non-Compliance with Other Aspects of Orders — “Hopelessly Belated Compliance” with Court Orders Not Accorded Great Weight — Prior Sanctions Orders Do Not Merge into Judgment of Dismissal under Rule 41(b) And Are Unreviewable

Archives
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

New York Office

© 2024 Joseph Hage Aaronson LLC  
Disclaimer | Attorney Advertising Notice | Legal Notice