Friday, February 05, 2016

UNITED STATES’ MOTIONS IN LIMINE Case No. CR 14-00175 TEH: Motion in Limine #6 to Admit Evidence Regarding Leslie McNiece

ABSTRACT:  In UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION, UNITED STATES OF AMERICA, Plaintiff, v. PACIFIC GAS AND ELECTIR COMPANY, Defendant, Case No. CR 14-00176 THE, Motion in Limine #6 to Admit Evidence Regarding Leslie McNiece (filed 01-11-16) is featured. UNITED STATES’ MOTIONS IN LIMINE document copy is embedded.

Motion in Limine #6 to Admit Evidence Regarding Leslie McNiece

The United States moves in limine to admit as inextricably intertwined and under Rule 404(b) evidence concerning a former employee, Leslie McNiece. McNiece was hired in 2012 for the purpose of building a department to address PG&E’s recordkeeping deficiencies identified after the San Bruno explosion. McNiece will testify that during the course of her employment with PG&E, she found recordkeeping deficiencies, experienced pushback from management during her attempts to address PG&E’s recordkeeping deficiencies, and was ultimately laid off in 2014. As one example, McNiece will testify that in or about May 2013, she found outside of her office door a box of original pipeline records, including for Line 132, with a Post-It note attached. The note read words to the effect of, “I’d rather give this to you than Gas Ops.” Also, McNiece will testify that in or around September 2013, she found original pipeline survey sheets for Line 132. She found these maps discarded in a dumpster outside of PG&E’s Gas Operations facility in Walnut Creek.

Some portions of the McNiece testimony are admissible as inextricably intertwined with the charged offenses, while others are admissible under Rule 404(b). First, McNiece’s testimony regarding the purpose for which she believes she was hired, along with her personal observations regarding the state of PG&E’s recordkeeping, are relevant, direct evidence of PG&E’s knowledge regarding the inadequate state of its pipeline records. For instance, McNiece will testify that during her recruitment by PG&E she discussed PG&E’s recordkeeping deficiencies with current PG&E employees, such as Sandy Hartman and Chris Johns. McNiece will testify that the reason she was hired by PG&E in April 2012 was to “clean up” their recordkeeping mess. McNiece will testify that the department she was hired to start was called Information Management Compliance. The purpose of this department, according to McNiece, was to address recordkeeping issues identified in a report called the Duller-North Report. All of this evidence is inextricably intertwined with the charged offenses, as it is probative of PG&E’s course of conduct in violation of Pipeline Safety regulations.

Second, McNiece will also testify that after drafting a new recordkeeping policy and presenting this policy to her management, PG&E President Chris Johns told her that PG&E would not approve that policy. Johns stated that if this policy was approved, PG&E would be immediately out of compliance. McNiece will also testify about the pushback she received throughout her tenure at PG&E. McNiece will describe the opposition she faced when she tried to remedy PG&E’s recordkeeping deficiencies, instances when she received specific instructions to destroy documents, such as from Sumeet Singh, and the financially-motived pushback she received when she attempted to organize PG&E records or move them from a storage facility called Iron Mountain. This “pushback” evidence is direct evidence of PG&E violations of recordkeeping regulations, and explains how PG&E did not genuinely attempt to address its known recordkeeping deficiencies. The pushback McNiece faced hindered her ability to address PG&E’s deficient records, and therefore is inextricably intertwined, direct evidence of PG&E’s knowledge of its recordkeeping deficiencies.

Third, McNiece’s discovery of original pipeline survey sheets of Line 132, containing handwritten notes, in a dumpster is also inextricably intertwined with the charged offenses. One of the Line 132 discarded survey sheets noted: “leak info not in GIS.” This notation was dated 12/8/2003. This map and the accompanying notation are probative of several relevant facts: that PG&E’s GIS system was deficient, that PG&E was aware of this deficiency, and that by discarding this original map, PG&E was failing to maintain records, as required, for the life of a pipe. Moreover, that PG&E did not maintain records of the 1988 seam leak on Line 132 is specifically charged in Count Four of the Superseding Indictment. PG&E has repeatedly claimed to regulators, politicians, and the press that it was unaware of this seam leak and found records of leak only after the explosion. The dumpster map demonstrates that PG&E was on notice that the information concerning the leak was not incorporated into its records system.

Finally, McNiece’s discovery of the box of documents outside of her office is admissible under Rule 404(b). This “other act” evidence is relevant to show that PG&E acted with the specific intent to violate the charged pipeline regulations. McNiece’s testimony regarding the box of Line 132 documents tends to show that PG&E engaged in a pattern of poor recordkeeping conduct, so much so that an employee only “trusted” giving McNiece the records. Such evidence disproving mistake or accident and instead proving a pattern of conduct is proper 404(b) evidence in the context of a corporate defendant. Bradbury v. Phillips Petroleum Co., 815 F.2d 1356, 1364 (10th Cir. 1987).

There is little risk that the jury will be unfairly prejudiced by this McNiece’s testimony. Any claim that a jury may unfairly draw conclusions regarding the widespread versus isolated nature of this witness’s experiences at PG&E does not weigh against admissibility, and can be addressed through cross examination and argument of counsel.

Calendar for: Judge Thelton E. Henderson
Courtroom 2, 17th Floor/Courtroom 12, 19th Floor
Courtroom Deputy: Tana Ingle
Monday, Mar 7 2016
- Pretrial Conference - Courtroom 2, 17th Floor
3:14-cr-00175-TEH - USA v. Pacific Gas and Electric Company
Motion Hearing
Motion in Limine
3:14-cr-00175-TEH-1 - USA v. Pacific Gas and Electric Company
Pretrial Conference
Case No. CR 14-00175 TEH

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