SAN FRANCISCO (CN) – As a criminal trial over the fatal San Bruno pipeline blast of 2010 nears, Pacific Gas & Electric is looking to stop the government from presenting certain witnesses to a jury.
In January, the U.S. government asked to put on the witness stand a former PG&E recordkeeper who found original pipeline surveys in a dumpster outside PG&E’s Walnut Creek operations facility in 2013.
Leslie McNiece was hired in 2012 to create a new department to overhaul the utility giant’s “recordkeeping deficiencies,” but her efforts were rejected by management and she was laid off in 2014, according to the government.
“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 document and the financially motivated pushback she received when she attempted to organize PG&E records or move them from a storage facility called Iron Mountain,” the government stated in a court filing earlier this year.
PG&E called the government’s claims misleading, pointing out that it did adopt a new recordkeeping policy, but with a plan to transition to the new system by 2016. The records McNiece was asked to destroy were merely copies, and documents found in the dumpster had already been scanned into the company’s recordkeeping system, PG&E argued.
The utility giant further claims McNiece should not be allowed to testify because she has no knowledge of the relevant time period prior to September 2010 when the pipeline blast occurred.
During a hearing Tuesday, U.S. District Judge Thelton Henderson asked the government to clarify whether PG&E was required under the U.S. Pipeline Safety Act to maintain files that McNiece was told to eliminate.
“The documents she was ordered to destroy were not records required to be retained under those sections,” Assistant U.S. Attorney Jeffery Schenk said. “But the relevance is the person who ordered the destruction did not know the content of those documents when he made the request so he wouldn’t have known if those records should be maintained.”
PG&E has also moved to disqualify two of the government’s expert witnesses, arguing the testimony they will offer is more appropriate for closing arguments delivered by an attorney.
The first witness, Henry Lubow – a consultant with 40 years of experience in utility regulation – will testify about PG&E’s corporate structure and how its financial planning and budgeting affected its commitment to safety.
PG&E says Lubow should not be allowed to offer his opinions on the company’s corporate culture, financial priorities or overall “corporate intent.”
“None of these topics is appropriate for expert testimony, and Mr. Lubow has no special expertise qualifying him to argue his interpretations of evidence to the jury,” PG&E stated in its motion to exclude his testimony.
Another witness, Steve Nanney, senior engineer with the Pipeline and Hazardous Materials Safety Administration, will explain the Pipeline Safety Act and its regulatory requirements to the jury.
PG&E says expert witnesses are not allowed to testify about the law and those instructions are supposed to be handed down by the court, not witnesses.
“It is basic black-letter law that ‘matters of law are inappropriate subjects for expert testimony,'” PG&E stated in court filings.
The government responded that the Ninth Circuit and other appeals courts have held experts may “properly explain complex and technical regulatory requirements” without usurping the court’s authority to instruct a jury on matters of law.
PG&E attorney Steven Bauer told the judge he needs three more weeks to look through 100,000 pages of documents the government just turned over on Monday before he can argue his motion to exclude Nanney’s testimony.
“I’m ready for Mr. Nanney as soon as I can get through those documents,” Bauer said.
A hearing on the motion to exclude Lubow’s testimony is scheduled for April 20.
Seeking sanctions against the government
In about three weeks time, Bauer said he also plans to submit a motion for sanctions against the government based on evidence found in newly turned over materials.
Bauer accused the government of improperly sharing draft versions of indictments against PG&E with private consultants.
“Are any of these consultants on the list that allows them to see sensitive grand jury material?” Bauer asked. “The government says, “We won’t tell you who’s on the list. It’s none of your business.”
The PG&E attorney also claims the government tried to hide evidence favorable to the defense. The evidence was discovered in a recent dump of documents the government had previously resisted turning over to the utility giant.
Bauer said PG&E’s legal team found documents showing the government lacked evidence to charge a high-ranking PG&E management official with willfully violating the law. The team also found records of government officials stating PG&E had no knowledge of potential threats to its pipelines prior to the San Bruno blast, he said.
Bauer told the judge he will need more time to review all the documents, which may require pushing the already continued trial date of April 26 back even further.
U.S. government attorney Hartley West said the government is adamantly opposed to further delaying the trial, and that the recently turned over files are irrelevant to the issue of expert witness testimony that is holding up the trial.
“This is not a problem of our making,” Bauer said. “They told us eight times discovery was completed, yet they gave us 100,000 pages on Monday.”
PG&E faces 12 counts of violating the U.S. Pipeline Safety Act and one count of obstructing an investigation by the National Transportation Safety Board.
The pipeline blast in San Bruno, a San Francisco suburb, killed eight people, injured 58 and destroyed 38 homes on Sept. 9, 2010.