Feds’ Discovery Dump Buys PG&E More Time

SAN FRANCISCO (CN) – Pacific Gas & Electric on Monday accused the U.S. government of deliberately dumping a large cache of incomplete files on the utility giant ahead of a criminal trial set for later this month.
“They’ve been angling for a continuance for some time, including asking for one after they dumped all those documents,” PG&E attorney Steven Bauer said at a hearing Monday.
The criminal trial over the 2010 San Bruno pipeline explosion that killed eight people and destroyed 38 homes was set to begin on March 22.
After listening to PG&E and government attorneys squabble over still-pending discovery disputes, U.S. District Judge Thelton Henderson agreed to postpone the trial until April 12 or later.
Bauer said the government buried PG&E in 30,000 pages of exhibits, 260,000 pages of discovery documents and 7,000 pages of emails from the Justice Department in February, much of which contain unjustified redactions and “useless gibberish.”
Still, Bauer said, he believes the files contain “smoking guns” that will allow PG&E to seek sanctions against the government for “withholding key evidence” from the grand jury and from the utility giant.
“The argument that these are ‘smoking gun’ documents clearly shows they’ve been able to read this material,” Assistant U.S. Attorney Hallie Hoffman replied.
Hoffman acknowledged some files turned over to PG&E contained “garbled text” but said the utility giant was also given native files for those documents, nullifying the need for any further discovery.
The 7,000 pages of Justice Department emails also contain blacked-out statements by experts that agreed with positions PG&E engineers took five to six years ago, positions the government painted as willful violations of federal law, Bauer argued.
Hoffman said although the government initially redacted statements made by non-testifying witnesses from the emails, it has since reassessed whether that information should be withheld.
“As soon as they brought up the problem of lacking context, we looked at over-redacting,” Hoffman said. “That was turned over to the defense yesterday. The government is trying its hardest to get all this material over to the defense.”
Hoffman said the government was prepared to go to trial on March 22, despite Bauer claiming that it was “angling” for a continuance.
Bauer requested an extra three to four weeks to review the newly received documents and to potentially submit new requests for more information based on what PG&E learns from the new cache of files.
The PG&E attorney estimated it will take at least 32 full-time days to go through the 260,000 pages it received in February.
“I want to make it clear I won’t entertain any further motions or discovery disputes from either party beyond the matters already pending,” Judge Henderson said, adding that he will allow PG&E to pursue limited additional discovery pertaining to the files currently under review.
The judge also granted in part PG&E’s proposed jury questionnaire and selection procedures on Monday, which are intended to eliminate potential juror bias at trial.
Henderson said he was “receptive” to PG&E’s argument that this case presents a greater than normal need to prevent juror bias, adding he will modify PG&E’s proposed juror questions and interview each juror individually before both sides get to question the jurors.
The judge postponed ruling on other motions, including PG&E’s 10 motions in limine to exclude evidence at trial, until later this month at a newly rescheduled pretrial conference set for March 28.
In December, Henderson tossed more than half of the 28 criminal charges filed against PG&E. The utility giant now faces 12 counts of violating the U.S. Pipeline Safety Act and one count of obstructing an investigation by the National Transportation Safety Board.
Henderson said he will “consider the complexity of the remaining pretrial disputes” before he decides whether to push the trial back further than April 12.

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