Fake Decks up in the Files?

Kim v. Toyota Motor Corp., No. B247672 (D2d7, as modified Feb. 8, 2016)

This is an automotive products liability case mostly about when plaintiffs can admit evidence of industry custom to show a defect under the risk-benefit test. (The answer, according to the court, is sometimes,  parting ways with other courts that have said always and never.) The court also, however, briefly tackles two points of procedural interest.
 
The first concerns the admissibility of three PowerPoint decks that discuss the merits of implementing a stability control system that arguably bore upon the defectiveness of the product. The documents were largely in Japanese and contained a bunch of charts and statistics. None of the trial witness could testify to the origin of the documents or that the information contained in them was accurate. The trial court held them inadmissible under both Evidence Code § 352 because the risk of confusion or prejudice outweighed their probative value and also because plaintiff failed to establish their authenticity. The court of appeal here affirms.
 
§ 352: The § 352 analysis seems reasonable. The documents were confusing. Without any witness to explain them, there was a palpable risk of confusion and undue prejudice. Moreover, some of the key information plaintiffs wanted out of them came in through other sources, so to the extent they were probative, they were also somewhat cumulative. At minimum, those points make enough sense to say the trial court didn’t abuse its discretion in keeping them out.
 
§ 1400: I don’t, however, buy the analysis on the authenticity point. It’s an alternative holding, so not clear why the court even needed to go there. But in any event, the standard for authenticity under Evidence Code § 1400 is very low. All the proponent needs to show are some preliminary foundational facts from which a reasonable jury could find the document is what it purports to be.

That seems to be met here. The decks in issue were produced by the defendant in discovery, defendant asserted confidentiality over them under the protective order in the case, and they dealt with Defendant’s vehicles, the potential safety benefits of the system at issue, and explained the potential benefits to Defendant’s reputation for safety. That might not be dispositive, but in the absence of any evidence that the decks were fake or a basis to believe that somebody else’s documents would have wound up in Defendant’s discoverable files, I have a tough time thinking that would be completely unreasonable for a reasonable trier to fact to decide they were, in fact, Defendant’s docs.
 
Crucially, the court just says—without any citation at all—that “the fact that a party produces a document in discovery does not authenticate the document.” Of course, I’ve twice discussed cases holding precisely the opposite. Mind you, the Supreme Court granted review in Gerard—although on a different issue— and Civic Partners declined to publish on the issue. But there’s also a third, citable case—Wall Street Network, Ltd. v. N.Y. Times Co., 164 Cal. App. 4th 1171, 1182-83 (2008)—that stands more or less for the same proposition. As I said, most companies don’t maintain a practice of keeping fake documents in their files and most discovery requests do not demand their production. In saying otherwise without so much as citing anything on the point, the court here has created an inadvertent split of authority.

There’s little doubt, it can be unfair, confusing, or prejudicial to put a document that nobody can explain into evidence. And the facts of the case here suggest that plaintiffs could have worked a little harder to dig into the provenance of the PowerPoints at issue. That, however is what § 352 is for—excluding evidence where the downside signficiantly outweighs the up. But in addressing the issue as viatiating authenticity, the court’s ruling—which seems to suggest that foundation for authenticity might require evidence of who within a corporation was a document’s actual author—goes too far.
 
Practice Point: To avoid the consequences of this ruling—which could be particularly troublesome in the summary judgment context—parties are going to have to expend extra efforts on meta-discovery to establish the necessary foundation for any documents produced by the opposing party. I would suggest serving requests for admission about the authenticity of any relevant document in the case, accompanied by a Form Rog 17.1, demanding the factual basis for any denial. That’s pretty annoying, but it will effectively put the burden to the other party to show that the docs it has produced aren’t authentic.
 
And the second point? The second procedural issue concerns a time limit on rebuttal argument. Due to some confusion in the colloquy between plaintiff’s counsel and the court, the court thought it had set an 11 am hard stop on the argument, while counsel thought it was only the time at which it would go into recess, with more argument to follow. The court then forced counsel to conclude his argument at 11 am. It later denied a new trial motion on the issue. Although the court here recognizes that counsel might have been honestly confused, there was no apparent prejudice caused by the truncation of the argument. Counsel had forty full minutes for rebuttal and had already covered the key points for which he contended rebuttal was necessary. So the trial court didn’t abuse its discretion in curtailing the argument in the first instance or in denying a new trial in the second.
 
Affirmed.