Case 3:18-cr-04683-GPC Document 444 Filed 05/24/22 PageID.6626 Page 1 of 8
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`MINTZ, LEVIN, COHN, FERRIS,
`GLOVSKYAND POPEO, P.C.
`Randy K. Jones, SBN 141711
`3580 Carmel Mountain Road, Suite 300
`San Diego, CA 92130
`Telephone: (858) 314-1510
`rkjones@mintz.com
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`Daniel Goodrich, BBO 692624 (Pro Hac)
`Ryan Dougherty, BBO 703380 (Pro Hac)
`1 Financial Center
`Boston, MA 02111
`djgoodrich@mintz.com
`rtdougherty@mintz.com
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`Attorneys for Mark Manoogian
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`WIECHERT, MUNK &
`GOLDSTEIN, PC
`David W. Wiechert, SBN 94607
`Jessica C. Munk, SBN 238832
`27136 Paseo Espada, Suite B1123
`San Juan Capistrano, CA 92675
`Telephone: (949) 361-2822
`dwiechert@aol.com
`jessica@wmgattorneys.com
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`Attorneys for Jacob Bychak
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`BIRD, MARELLA, BOXER,
`WOLPERT, NESSIM, DROOKS
`LINCENBERG & RHOW P.C.
`Gary S. Lincenberg, SBN 123058
`Nicole R. Van Dyk, SBN 261646
`Darren L. Patrick, SBN 310727
`Alexis A. Wiseley, SBN 330100
`1875 Century Park East, Floor 23
`Los Angeles, CA 90067
`Telephone: (310) 201-2100
`glincenberg@birdmarella.com
`nvandyk@birdmarella.com
`dpatrick@birdmarella.com
`awiseley@birdmarella.com
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`Attorneys for Petr Pacas
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`BIENERT KATZMAN
`LITTRELL WILLIAMS LLP
`Thomas H. Bienert, Jr., SBN 135311
`James D. Riddet, SBN 39826
`Whitney Z. Bernstein, SBN 304917
`Carlos A. Nevarez, SBN 324407
`903 Calle Amanecer, Suite 350
`San Clemente, California 92673
`Telephone: (949) 369-3700
`tbienert@bklwlaw.com
`jriddet@bklwlaw.com
`wbernstein@bklwlaw.com
`cnevarez@bklwlaw.com
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`Attorneys for Mohammed Abdul Qayyum
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`DEFENDANTS’ POCKET MEMORANDUM RE INADMISSIBILITY OF EMAILS AS “BUSINESS RECORDS”
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`Case No. 18-CR-4683-GPC
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`Case 3:18-cr-04683-GPC Document 444 Filed 05/24/22 PageID.6627 Page 2 of 8
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE SOUTHERN DISTRICT OF CALIFORNIA
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`Plaintiff,
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`UNITED STATES OF AMERICA,
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`v.
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`JACOB BYCHAK, et al.,
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` Defendants.
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`Case No. 18-CR-4683-GPC
`Honorable Gonzalo P. Curiel
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`DEFENDANTS’ POCKET
`MEMORANDUM RE
`INADMISSABILITY OF
`ADCONION EMAILS UNDER THE
`“BUSINESS RECORDS”
`EXCEPTION TO THE HEARSAY
`RULE
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`DEFENDANTS’ POCKET MEMORANDUM RE INADMISSIBILITY OF EMAILS AS “BUSINESS RECORDS”
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`Case No. 18-CR-4683-GPC
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`Case 3:18-cr-04683-GPC Document 444 Filed 05/24/22 PageID.6628 Page 3 of 8
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`I.
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`INTRODUCTION
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`On May 24, 2022, after the conclusion of opening statements, the Court granted the
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`government’s request to authenticate a large number of proposed government exhibits
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`pursuant to FRE 902(11), including based on a Certificate of Authenticity (“COA”)
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`executed by Adconion employee Mario Samonte. While the Defendants respectfully
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`disagree with this ruling, they are confident that it was not the Court’s intention to admit
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`into evidence millions of pages of emails and other documents based solely on its finding
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`of authenticity with respect to these documents. Authenticity is, of course, a mere
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`“condition precedent to admissibility,” and “authentication does not mean that the [judge]
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`must accept the documents into evidence or deem their contents to be true.” See, e.g.,
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`Vatyan v. Mukasey, 508 F.3d 1179, 1185 (9th Cir. 2007) (emphasis original).
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`Based upon exhibits the government identified earlier tonight that it intends to use
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`with its first witness in the morning, Jennifer Brooks, it appears that the government will
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`attempt to wrongly introduce exhibits under the business records exception to the hearsay
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`rule. Consequently, Defendants file this pocket brief to set forth applicable law governing
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`any attempts to do so.
`II. APPLICABLE LAW
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`Federal Rule of Evidence § 803(6)
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`The following are not excluded by the rule against hearsay, regardless of whether
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`the declarant is available as a witness:
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`(6) Records of a Regularly Conducted Activity. A record of an act, event,
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`condition, opinion, or diagnosis if:
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`(A) the record was made at or near the time by — or from information
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`transmitted by — someone with knowledge;
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`(B) the record was kept in the course of a regularly conducted activity
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`of a business, organization, occupation, or calling, whether or not for
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`profit;
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`(C) making the record was a regular practice of that activity;
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`18-cr-04683-GPC
`DEFENDANTS’ RESPONSE TO THE GOVERNMENT’S SUPPLEMENTAL NOTICE OF 404(b)
`EVIDENCE
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`Case 3:18-cr-04683-GPC Document 444 Filed 05/24/22 PageID.6629 Page 4 of 8
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`(D) all these conditions are shown by the testimony of the custodian or
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`another qualified witness, or by a certification that complies with Rule
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`902(11) or (12) or with a statute permitting certification; and
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`(E) the opponent does not show that the source of information or the
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`method or circumstances of preparation indicate a lack of
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`trustworthiness.
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`III. EMAILS ARE NOT “BUSINESS RECORDS” SIMPLY BECAUSE THEY
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`ARE SENT BETWEEN A COMPANY’S EMPLOYEES
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`The Circuit Courts of Appeal are unanimous in holding that “[a]n email is not a
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`business record for purposes of the relevant hearsay exception simply because it was
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`sent between two employees in a company or because employees regularly conduct
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`business through emails.” United States v. Daneshvar, 925 F.3d 766, 777 (6th Cir. 2019)
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`(emphasis added). Indeed, “[i]f that were the case, then every single email sent within
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`any company would fall within the exception,” which “would obviate the entire purpose
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`of the business records exception, which is designed for a limited category of records—
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`namely those that are regularly produced as a part of a company’s business activities.”
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`Id.; accord United States v. Cone, 714 F.3d 197, 220 (4th Cir. 2013) (“[I]t would be
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`insufficient to survive a hearsay challenge simply to say that since a business keeps and
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`receives e-mails, then ergo all those e-mails are business records falling within the
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`ambit of Rule 803(6)(B).”) (emphasis added); Monotype Corp. PLC v. Int’l Typeface
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`Corp., 43 F.3d 443 (9th Cir. 1994) (rejecting the argument that an email qualified as a
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`“business record” simply because it was sent from an employee to his superior and “was
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`kept in the course of regularly conducted business”); Ira Green, Inc. v. Military Sales &
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`Serv. Co., 775 F.3d 12, 20 (1st Cir. 2014) (district court erred in admitting emails under
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`the business records exception because “the 2012 e-mails described what supposedly
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`occurred in 2011” and “[t]his lack of contemporaneity puts the exhibit outside the
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`compass of the business records exception”).
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`Federal trial courts routinely reject the argument that corporate emails qualify as
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`18-cr-04683-GPC
`DEFENDANTS’ RESPONSE TO THE GOVERNMENT’S SUPPLEMENTAL NOTICE OF 404(b)
`EVIDENCE
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`Case 3:18-cr-04683-GPC Document 444 Filed 05/24/22 PageID.6630 Page 5 of 8
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`admissible “business records” under FRE 803(6)(B) merely because copies of those
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`emails are retained in the company’s electronic files. See, e.g., Morisseau v. DLA Piper,
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`532 F. Supp. 2d 595, 621 n.163 (S.D.N.Y. 2008) (“An e-mail created within a business
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`entity does not, for that reason alone, satisfy the business records exception of the
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`hearsay rule.”) (emphasis added); In re Oil Spill by the Oil Rig DEEPWATER HORIZON
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`in the Gulf of Mexico, No. MDL 2179, 2012 WL 85447, at *3 (E.D. La. Jan. 11, 2012)
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`(“The individual elements required to trigger the exception’s applicability show that there
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`is no categorical rule that emails originating from or received by employees of a
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`producing defendant are admissible under the business records exception.”) (emphasis
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`added); Versata Software, Inc. v. Internet Brands, Inc., No. 2:08-CV-313-WCB, 2012 WL
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`2595275, at *1 (E.D. Tex. July 5, 2012) (“The essence of [the employee’s] testimony was
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`that e-mails reporting on events pertinent to the business would be sent at a time
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`convenient to the sender if the sender regarded the subject matter of the e-mail as worthy
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`of communicating to others. That evidence reflects the use of internal communications for
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`information-sharing purposes based on instances of perceived need and convenience, not
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`a system for preparing and retaining business records as a regular and routine practice.”).
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`In sum, emails do not become admissible “business records” simply because they
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`are sent to or from a business’s employees and/or retained in that business’s electronic
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`files.
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`IV. CONCLUSION
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`The government should not be permitted to wrongly introduce exhibits under the
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`business records exception to the hearsay rule based upon the Court’s May 24, 2022 order
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`concerning the authenticity of those exhibits. If the government seeks to introduce any of
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`the documents contained in those records, the government must first establish a basis for
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`admissibility.
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`18-cr-04683-GPC
`DEFENDANTS’ RESPONSE TO THE GOVERNMENT’S SUPPLEMENTAL NOTICE OF 404(b)
`EVIDENCE
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`Case 3:18-cr-04683-GPC Document 444 Filed 05/24/22 PageID.6631 Page 6 of 8
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`Dated: May 24, 2022
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`Dated: May 24, 2022
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`Respectfully submitted,
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`BIENERT KATZMAN LITTRELL
`WILLIAMS LLP
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`By: /s/ Whitney Z. Bernstein
`Thomas H. Bienert, Jr.
`James D. Riddet
`Whitney Z. Bernstein
`Carlos A. Nevarez
`Attorneys for Mohammed Abdul Qayyum
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`MINTZ LEVIN COHN FERRIS
`GLOVSKY AND POPEO, P.C.
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`By: /s/ Randy K. Jones
`Randy K. Jones
`Daniel J. Goodrich (Pro Hac)
`Ryan Dougherty (Pro Hac)
`Attorneys for Mark Manoogian
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`Dated: May 24, 2022
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`WIECHERT, MUNK & GOLDSTEIN, PC
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`By: /s/ Jessica C. Munk
`David W. Wiechert
`Jessica C. Munk
`Attorneys for Jacob Bychak
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`Dated: May 24, 2022
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`BIRD, MARELLA, BOXER, WOLPERT,
`NESSIM, DROOKS, LINCENBERG &
`RHOW, P.C.
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`By: /s/ Gary S. Lincenberg
`Gary S. Lincenberg
`Nicole Rodriguez Van Dyk
`Darren L. Patrick
`Alexis A. Wiseley
`Attorneys for Petr Pacas
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`18-cr-04683-GPC
`DEFENDANTS’ RESPONSE TO THE GOVERNMENT’S SUPPLEMENTAL NOTICE OF 404(b)
`EVIDENCE
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`Case 3:18-cr-04683-GPC Document 444 Filed 05/24/22 PageID.6632 Page 7 of 8
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`CERTIFICATION OF AUTHORIZATION TO SIGN SIGNATURE
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`The undersigned counsel of record for Mohammed Abdul Qayyum certifies
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`that the content of this document is acceptable to each of the Defendants’ counsel
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`whose electronic signature appears thereon, and that I have obtained their
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`authorization to sign this document on their behalf.
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`/s/ Whitney Z. Bernstein
` Whitney Z. Bernstein
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`CERTIFICATE OF AUTHORIZATION TO SIGN SIGNATURE
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`Case No. 18-CR-4683-GPC
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`Case 3:18-cr-04683-GPC Document 444 Filed 05/24/22 PageID.6633 Page 8 of 8
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`CERTIFICATE OF SERVICE
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`Counsel certifies that the foregoing pleading has been electronically served on
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`the following parties by virtue of their registration with the CM/ECF system:
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`AUSA Melanie K. Pierson
`AUSA Sabrina L. Fève
`AUSA Ashley E. Goff
`U.S. Attorney’s Office
`880 Front Street, Rm 6293
`San Diego, CA 92101
`melanie.pierson@usdoj.gov
`sabrina.feve@usdoj.gov
`ashley.goff@usdoj.gov
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`Candina S. Heath
`U.S. Department of Justice
`1301 New York Avenue NW, Suite 600
`Washington, DC 20530
`candina.heath2@usdoj.gov
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`Respectfully submitted,
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`Dated: May 24, 2022
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`By: /s/ Whitney Z. Bernstein
`Whitney Z. Bernstein
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`CERTIFICATE OF SERVICE
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`Case No. 18-CR-4683-GPC
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