Clarke v. Pacific Gas & Electric Company

Background

Dan Clarke and Pacific Gas and Electric Company and PG&E Corporation, collectively referred to as PG&E, submitted a joint letter asking the court to resolve objections and responses to three categories in Clarke’s notice of deposition of PG&E. The dispute involved discovery about the Cannery manufactured-gas plant site and documents produced in this litigation.

Category 3: Equitable’s operations

This category sought information about Equitable’s use of the Cannery manufactured-gas plant and site, including activities involving the generation, transport, storage, and handling of manufactured gas and waste. Equitable operated the site from approximately 1898 to 1903 before transferring its business and property to San Francisco Gas and Electric. PG&E accepted liability for San Francisco Gas and Electric’s acts but denied liability for Equitable’s acts and denied that San Francisco Gas and Electric took actions creating liability.

PG&E argued that it had already admitted when Equitable operated the site and that further details were unrelated to the first phase of discovery concerning successor liability. Clarke argued that he needed the information to connect liability between Equitable and San Francisco Gas and Electric, including by showing a de facto merger. A de facto merger may involve whether the successor continued the seller’s enterprise, including its management, personnel, location, assets, and business operations.

The court ruled that Clarke was entitled to the information. It explained that details about Equitable’s operations could allow Clarke to compare those operations with San Francisco Gas and Electric’s later operations and support his de facto merger theory.

Category 34: Document authenticity and content

This category sought a PG&E witness to testify about the content and authenticity of documents produced by the parties. During discussions before bringing the dispute to the court, Clarke limited the request to approximately 200 documents produced by PG&E in this litigation and eight documents produced by Clarke that were authored by PG&E.

The court ruled that PG&E should designate a witness to testify about the authenticity of the eight PG&E documents produced by Clarke. To the extent Clarke sought testimony about the content of all the documents, the request was denied without prejudice if the issue later became relevant to an adjudication or at another point in the litigation.

Category 36: Evidence classifications

This category sought a PG&E witness to testify about whether the documents were business records, party statements, or covered by other hearsay exceptions under the Federal Rules of Evidence. The court agreed with PG&E that the request improperly sought testimony about legal conclusions concerning each document rather than facts about the documents. The court stated that if Clarke later raised concerns about objections to the admissibility of documents submitted during summary-judgment briefing, it would address those concerns case by case unless the parties adopted a more practical approach.

Disposition

Judge William H. Orrick issued the order on July 8, 2021. The order resolved the second discovery dispute: Clarke was entitled to the Category 3 information, PG&E was to designate a witness about the authenticity of the eight specified documents, the request for testimony about all document contents was denied without prejudice, and the court rejected Category 36 as a request for testimony about legal conclusions. The order did not decide the parties’ ultimate liability claims.