Commercial Litigation and Arbitration

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

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.



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.

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