Citations
- 791 F. Supp. 2d 719
Full opinion text
ORDER GRANTING PLAINTIFF’S AND DEFENDANT’S MOTIONS FOR JUDICIAL NOTICE; GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT; GRANTING IN PART AND DENYING IN PART DEFENDANT’S OBJECTIONS TO PLAINTIFF’S EVIDENCE IN SUPPORT OF MOTION
(Docket Nos. 71, 82, 103, 104, 118, 120)
EDWARD M. CHEN, District Judge.
TABLE OF CONTENTS
I. BACKGROUND...........................................................727
A. Statutory Background..................................................727
B. Plaintiffs Allegations ..................................................728
C. SSO Discharge Reporting System........................................729
D. Procedural Background.................................................729
II. LEGAL STANDARD.......................................................731
III. DISCUSSION.............................................................731
A. Requests for Judicial Notice.............................................731
B. Evidentiary Objections .................................................732
1. Declarations of Anna Fairbank, Terry Blanchard, Dudley Kemoorthy, and Andrea Kopecky...................................732
2. Corrected Declaration of Deborah Self.................................735
3. Declaration of Bruce Bell............................................736
a. Whether the Bell Declaration is Inadmissible as Expert Opinion Testimony...................................................736
i. Whether Dr. Bell’s Testimony is Reliable.....................737
ii. Whether Dr. Bell’s Testimony is Relevant.....................740
b. Whether the Bell Declaration is Inadmissible as Fact Witness Testimony...................................................741
4. Hearsay Objections.................................................741
a. Hunt Declaration...............................................741
b. Lucke Declaration............'..................................742
5. Conclusion ........................................................744
C. Threshold Issues: Standing and Notice...................................744
1. Whether the Baykeeper Members Have Suffered an Injury in Fact.....745
2. Whether the Injury is Fairly Traceable to the Challenged Action of Defendant.......................................................748
3. Whether it is Likely that Plaintiff’s Injury Will be Redressed by a Favorable Decision...............................................749
a. Injunctive Relief................................................750
b. Civil Penalties .................................................750
4. Whether Plaintiff has Standing as an Organization.....................751
5. Whether Plaintiff Provided Adequate Notice...........................752
6. Conclusion ........................................................753
D. Whether There is No Genuine Dispute that Defendant’s 68 SSOs Discharged Pollutants to Surface Waters................................753
1. Discharge .........................................................754
a. SSOs that Plaintiff Alleges Discharged Directly to Surface Waters......................................................754
i. Spills II, 51, 52, 61, 61, and 65 ..............................755
ii. Spill63...................................................756
iii. Spills 5, 7, 19, SI, 38,18, 51, and 59 ,.........................756
iv. Spills 13, II, and 17........................................756
v. Spills 6 and 32 ............................................ 757
vi. Spill 9....................................................757
vii. Spill 33...................................................757
viii. Spill 13...................................................757
ix. Spill 1....................................................758
x. Conclusion................................................758
b. SSOs that Plaintiff Alleges Reached the MSI and Discharged to Surface Waters...............................................758
i. Whether Plaintiff’s Evidence Establishes the SSOs Discharged From the MSI to Surface Waters...................758
ii. SSOs That Spilled to the MSI During or Immediately After a Significant Rain Event............................760
iii. SSOs That Spilled to the MSI Without a Significant Rain Event..................................................761
iv. Conclusion................................................762
c. Multiple Spill Days..........•...................................762
d. Conclusion.....................................................762
2. Waters of the United States..........................................763
a. San Francisquito Creek.........................................764
b. West Point Slough..............................................765
c. Atherton Channel...............................................765
d. Los Trancos Creek..............................................766
e. Corte Madera Creek.............................................767
f. Ravenswood Slough.............................................767
g. Bayfront Canal.................................................767
h. Redwood Creek.................................................768
i. Bovet Creek....................................................768
j. Conclusion.....................................................769
3. NPDES Permit....................................................769
a. MSI Permit....................................................770
b. Waste Treatment System Exemption..............................773
IV. CONCLUSION..................... .....................................773
Before the Court is Plaintiff San Francisco Baykeeper’s (“Plaintiff’) Motion for Partial Summary Judgment. Pl.’s Mot. for Partial Summ. J. (“Pl.’s Mot.”), Dkt. No. 71. In its motion, Plaintiff seeks judgment against Defendant West Bay Sanitary District (“Defendant”) on the grounds that Defendant discharged pollutants into Waters of the United States in violation of the Clean Water Act. Pl.’s Mot. 1, Dkt. No. 71. Also before the Court are the parties’ Requests for Judicial Notice, (Dkt. Nos. 82, 103), and Defendant’s Objections to Evidence Submitted in Support of Plaintiffs Motion, (Dkt. No. 104). After considering the parties’ briefs, the arguments raised at the March 9, 2011 hearing, and the entire record of this case, the Court GRANTS each party’s Motion for Judicial Notice, GRANTS IN PART AND DENIES IN PART Defendant’s Objections to Evidence, and GRANTS IN PART AND DENIES IN PART Plaintiffs motion for partial summary judgment for the reasons set forth herein.
I. BACKGROUND
Plaintiff is a nonprofit corporation dedicated to protecting and enhancing the water quality of the San Francisco Bay-Delta Estuary and its tributaries for the benefit of its ecosystems and the surrounding communities. Self Deck ¶¶ 2, 4, Dkt. No. 96. Defendant is the political entity that owns and operates the sewage collection system (the “Collection System”) serving some 55,000 people in the City of Menlo Park and parts of East Palo Alto, Redwood City, Atherton, Woodside, Portola Valley, and unincorporated San Mateo and Santa Clara Counties. Compl. & Answer ¶¶ 21-24, Dkt. Nos. 1, 11. The Collection System, which is made up of 210 miles of sewer line, conveys sewage to the Menlo Park Pumping Station and from there to the South Bayside System Authority (“SBSA”) Wastewater Treatment Plant, which is jointly owned and operated by Defendant and three municipalities — Belmont, San Carlos, and Redwood City. Compl. & Answer ¶¶ 24-25, 28-29, Dkt. Nos. 1, 11.
A. Statutory Background
The Clean Water Act (“CWA”), 33 U.S.C. § 1251-1376, is intended to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). In pursuit of this goal, section 301(a) of the Act prohibits the “discharge of any pollutant” into navigable waters from any “point source” without a permit. 33 U.S.C. § 1311(a) (except as otherwise provided in the Act, the discharge of any pollutant by any person shall by unlawful). “Discharge of a pollutant” is defined broadly to include “any addition of any pollutant to navigable waters from any point source.” Id. § 1362(12)(A); Rapanos v. United States, 547 U.S. 715, 723, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006). And “navigable waters” means “Waters of the United States.” 33 U.S.C. § 1362(7). “The phrase ‘the waters of the United States’ includes only those relatively permanent, standing or continuously flowing bodies of water forming geographic features that are described in ordinary parlance as streams, oceans, rivers, and lakes.” Rapanos, 547 U.S. at 739, 126 S.Ct. 2208. EPA regulations further define “waters of the United States,” but include an exception: “Waste treatment systems, including treatment ponds or lagoons ... are not waters of the United States.” 40 C.F.R. § 122.2.
The EPA is also required to regulate stormwater discharges “to protect water quality.” 33 U.S.C. § 1342(p)(6). The EPA’s stormwater discharge regulations, 40 C.F.R. § 122.26, define a Municipal Separate Storm Sewer (“MS4”) as a conveyance or system of conveyances (including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man-made channels, or storm drains) owned or operated by a public body (created by or pursuant to State law) having jurisdiction over disposal of sewage, industrial wastes, storm water, or other wastes, used for collecting or conveying storm water. 40 C.F.R. § 122.26. Unlike a sanitary sewer system, which transports municipal sewage for treatment at a wastewater facility, or a combined sewer system, which transports sewage and stormwater for treatment, MS4s contain and convey only untreated stormwater. See 40 C.F.R. § 122.26(a)(7), (b)(8).
CWA § 402 provides for the issuance of a permit under the National Pollutant Discharge Elimination System (“NPDES”). 33 U.S.C § 1342(a). A NPDES permit allow the holder to discharge pollutants notwithstanding the general prohibition imposed by § 301(a). Id. The NPDES permitting program is the “centerpiece” of the CWA and the primary method for enforcing the effluent and water-quality standards established by the EPA and state governments. Natural Res. Def. Council, Inc. v. Cnty. of Los Angeles, 636 F.3d 1235 (9th Cir.2011) (citations omitted). NPDES permits may be issued by the EPA or by state agencies that have been duly authorized by the EPA. Id. § 1342(a)-(b). In California, the NPDES program is administered by the State Water Resources Control Board. Cal. Water Code § 13267(b)(1); Pl.’s Req. for Judicial Notice (“RJN”) Ex. B.
B. Plaintiffs Allegations
Plaintiff initiated this suit against Defendant under the citizen suit provisions of the CWA, 33 U.S.C. § 1365. Plaintiffs Complaint seeks a judgment declaring that Defendant has discharged pollutants from its Collection System without a permit, in violation of the CWA, an injunction preventing Defendant from discharging pollutants without a NPDES permit, and civil penalties for the alleged discharges. Compl. ¶ 123, Dkt. No. 1.
In its Complaint, Plaintiff alleges that Defendant discharges sewage (commonly referred to as “sanitary sewer overflows” or “SSOs”) to San Francisco Bay and its tributaries without a permit. Plaintiff alleges that SSOs from the Collection System result in the discharge of pollutants into “waters of the United States” directly, as well as indirectly via the MS4 owned and operated by the cities and counties Defendant serves. It is undisputed that the Collection System has overflowed and discharged raw or partially treated sewage at least 162 times since September 28, 2004. Compl. & Answer ¶¶ 34, 101, Dkt. Nos. 1, 11.
Plaintiff alleges that Defendant self-reported hundreds of SSOs from its Collection System between October 3, 2004 and the present, spilling at a rate of over 30 SSOs per 100 miles of sewer line per year. Self Decl. ¶ 17, Dkt. No. 96; Compl. ¶¶ 34-35, Dkt. No. 1. Plaintiff alleges that Defendant’s SSOs have discharged to Ravens-wood Slough, West Point Slough, Atherton Channel, Redwood Creek, San Francisquito Creek, Los Trancos Creek, Bovet Creek, and Corte Madera Creek, and that these waters are all tributaries of San Francisco Bay. Bell Decl., ¶¶ 28-36, Attach. 5, Table 2, Dkt. No. 73.
Of these alleged spills, the present motion for partial summary judgment focuses on 68. For identification purposes, Plaintiff provided a table listing the 68 SSOs at issue in the present motion. Hunt Decl. ¶ 4, Ex. A, Dkt. No. 83. The table has columns containing an identifying number for each specific SSO, as well as each SSO’s location, date, and reported volume in gallons, and a column for the name of related surface waters. Plaintiff alleges that these SSOs discharged for 79 days, in two categories: (1) 23 SSOs that Defendant reported discharged to surface waters and (2) 45 SSOs of 100 gallons or more reported as reaching the MS4 and into surface waters. Bell Decl. ¶¶ 21-22, Attach. 5, Dkt. No. 73. Plaintiff alleges that this spill rate demonstrates serious problems with Defendant’s operation and maintenance of the Collection System. Self Decl. ¶ 17, Dkt. No. 96; Compl. ¶¶ 34, 39-42, Dkt. No. 1.
C. SSO Discharge Reporting System
The EPA has authorized the State of California to develop water-quality standards and issue NPDES permits. Under the Porter-Cologne Water Quality Control Act, California state law designates the State Water Resources Control Board and nine regional boards as the principal state agencies for enforcing federal and state water pollution law and for issuing permits. See Cal. Water Code §§ 13000, 13001, 13140, 13240, 13370, 13377. Pursuant to the California Water Code section 13267, the California Regional Water Quality Control Board, San Francisco Region (the “Regional Board”) has the authority to require any person who has discharged or is suspected of discharging to furnish, under penalty of perjury, technical or monitoring program reports. Cal. Water Code § 13267(b)(1). Defendant has been required to report all SSOs under one of two reporting systems during the five-year statutory period. Since May of 2007, Defendant has reported all SSOs to the California Integrated Water Quality System (“CIWQS”) online database pursuant to the California State Water Resources Control Board Order No. 2006-0003-DWQ. Pl.’s RJN Ex. B at 13, 15, 25; Ex. C at 34-39. Prior to May of 2007, Defendant filed its SSO reports pursuant to a November 15, 2004 letter issued by the Regional Board, which required Defendant to file spill reports for all SSOs of 100 gallons or more and to report all spills, including those under 100 gallons, in an Annual Report. Id. Ex. D at 43-44.
Defendant also keeps internal records of individual SSOs and spreadsheets summarizing SSOs by year. Bell Decl. ¶¶ 19-20, Dkt. No. 73; Hunt Decl. Ex. D, Dkt. Nos. 85-87, 89-90, 92-94. These reports include the date and address of the pertinent SSO, the SSO volume, whether the overflow was contained, whether any of the SSO was retrieved and returned to the Collection System, and whether the SSO discharged to a creek, channel, culvert, or drainage system, and if so the estimated volume that discharged. Hunt Decl. Ex. D, Dkt. Nos. 85-87, 89-90, 92-94.
D. Procedural Background
Plaintiff filed its Complaint on December 2, 2009, alleging three causes of action. Count I asserts that Defendant is in violation of the CWA for discharging pollutants into waters of the United States without a permit; Count II asserts that Defendant failed to comply with certain mandatory duties under the California Porter-Cologne Act, Cal. Water Code § 13376, which prohibits the discharge of pollutants to waters of the United States except in compliance with waste discharge requirements; Count III alleges that Defendant’s discharges violated several municipal ordinances and codes. Compl. 16-20, Dkt. No. 1.
On November 17, 2010, Defendant filed a Motion for Judgment on the Pleadings. Def.’s Mot. for J. on the Pleadings (“Def.’s Mot.”), Dkt. No. 43. In its motion, Defendant sought judgment on portions of the CWA claims raised in Count I as well as Plaintiffs state law claims. Alternatively, Defendant requested that the Court decline to exercise supplemental jurisdiction over the state law claims.
As to Plaintiffs CWA claims, Defendant challenged those portions of Count I related to discharges from its Collection System that did not reach waters of the United States, but instead entered MS4s. Def.’s Mot. 5, Dkt. No. 43. However, at the December 22, 2010 hearing on Defendant’s motion, Plaintiff agreed that any SSO discharges into MS4s that did not go on to reach “waters of the United States” would be outside the scope of this lawsuit, though Plaintiff did not concede that such discharges could never be actionable as a matter of law. Accordingly, because Defendant did not contend and did not proffer any evidence that none of the SSOs reached waters of the United States, the Court denied Defendant’s motion as to this cause of action. Order Granting in Part and Denying in Part Def.’s Mot. for J. on the Pleadings (“Order”), Dkt. No. 70.
As to the state law claims, Defendant argued that no private right of action for citizens exists to enforce the relevant municipal laws, and that Plaintiffs cause of action seeking to do so was not appropriately brought under state law, or in federal court through supplemental jurisdiction. Def.’s Mot. 8, Dkt. No. 43. Alternatively, Defendant argued that the Court should decline to exercise supplemental jurisdiction over the claims because they were not part of the same case or controversy, and because the claims raised novel or complex issues. Def.’s Mot. 13-14, Dkt. No. 43. The Court agreed that Plaintiffs cause of action raised novel and complex issues of state law, finding that there appears to be little precedent in the area and neither party cited any case authority akin to the circumstances in the present case. Order at 7-10, Dkt. No. 70. Further, the Court found that resolution of Count III would involve the expenditure of substantial additional judicial time and effort because it encompassed a larger subset of spills than the remaining counts, and that each discharge into the MS4s would be relevant, even if the discharge is not shown to have reached “waters of the United States.” Order at 10, Dkt. No. 70. Accordingly, the Court declined to exercise supplemental jurisdiction over Count III. Order at 10, Dkt. No. 70.
On January 31, 2011, Plaintiff filed the present motion for summary judgment. Dkt. No. 71. Defendant filed its Opposition on February 16, 2011, (Dkt. No. 97), and Plaintiff filed a Reply on February 23, 2011 (Dkt. No. 105). Both parties also filed Requests for Judicial Notice. Dkt. Nos. 82, 103. Defendant has also filed Objections to certain evidence submitted by Plaintiff in support of its motion, (Dkt. No. 104), to which Plaintiff filed a response on February 23, 2011. (Dkt. No. 107).
On November 18, 2010, the Court granted the parties’ stipulation to dismiss Plaintiffs second cause of action. Dkt. No. 46.
On March 9, 2011, the Court held a hearing on the matter. Daniel Cooper appeared on behalf of Plaintiff, and Melissa Thorme and Anthony Condotti appeared on behalf of Defendant.
II. LEGAL STANDARD
Pursuant to Federal Rule of Civil Procedure (“FRCP”) 56(a), the Court shall grant summary judgment as to any claim or defense if the movant, by citing to particular parts of materials in the record, shows that there “is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(a), (c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is material if, under the substantive law governing the claim or defense at issue, the fact is critical and might affect the outcome of the case. See Anderson, at 248, 106 S.Ct. 2505 A dispute about a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. See id. at 248-49, 106 S.Ct. 2505.
The party moving for summary judgment has the initial burden of citing to particular parts of materials in the record, including portions of the pleadings, discovery and disclosures on file, and affidavits, that demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When the nonmoving party has the burden of proof at trial, the movant need point out only “that there is an absence of evidence to support the nonmoving party’s case.” Id. at 325, 106 S.Ct. 2548. If the movant meets this initial burden, the non-moving party must go beyond the pleadings and-by its own affidavits or discovery-set forth specific facts showing a genuine issue for trial. See Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). If the non-moving party does not produce evidence to show a genuine dispute as to a material fact, the moving party is entitled to summary judgment. See Celotex, 477 U.S. at 323, 106 S.Ct. 2548. In ruling on a motion for summary judgment, inferences drawn from the underlying facts are viewed in the light most favorable to the non-moving party. See Matsushita, 475 U.S. at 587, 106 S.Ct. 1348.
III. DISCUSSION
A. Requests for Judicial Notice
Plaintiff and Defendant both filed Requests for Judicial Notice. Dkt. Nos. 82, 103, 118, 120. Neither party raised any objections to the requests.
Plaintiff requests that the Court take judicial notice of Defendant’s sewer system management plan; public records and orders from the Regional Board; provisions from the San Mateo County and Santa Clara County Ordinances; municipal code sections from East Palo Alto, Atherton, Menlo Park, Woodside Portola Valley, and Redwood City; and website pages from the South Bay Salt Pond Restoration Project, which is managed by an Executive Leadership Group that is comprised of employees of federal, state, and local government agencies. Pl.’s RJN Exs. A-O, Dkt. No. 82. In support of supplemental briefing, Plaintiff also requests that the Court take judicial notice of a hearing transcript from this case, excerpts from certain NPDES permits, and a response to written comments related to a NPDES permit. Dkt. 120.
Defendant requests that the Court take judicial notice of a Mercury Total Maximum Daily Load authored by the Regional Board; a water appropriation decision issued by the Regional Board, dated October 20, 2009; and excerpts of the State Water Resources Control Board’s 2006 CWA section 303(d) impaired waterbodies list, which shows listings and sources for lower and south San Francisco Bay and San Francisquito Creek. Thorme Decl. Exs. G, I, J, Dkt. No. 99. In support of supplemental briefing, Defendant also requests that the Court take judicial notice of certain NPDES permits. Dkt. 118.
Federal Rule of Evidence (“FRE”) 201(b) provides the criteria for judicially noticed facts: “A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” It is well established that records, reports, and other documents on file with administrative agencies — such as the State Water Resources Control Board — are judicially noticeable. Lee v. City of Los Angeles, 250 F.3d 668, 689-90 (9th Cir.2001); see also al-Kidd v. Ashcroft, 580 F.3d 949, 954 fn. 6 (9th Cir.2009); Marsh v. San Diego Cnty., 432 F.Supp.2d 1035, 1043-45 (S.D.Cal. 2006). City ordinances are also proper subjects for judicial notice. Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1025 fn. 2 (9th Cir.2006).
As neither party has raised any objections to the requests for judicial notice, and the requests are not subject to reasonable dispute in that they are capable of accurate and ready determination, the Court GRANTS the parties requests for judicial notice.
B. Evidentiary Objections
On February 16, 2011, Defendant filed Objections to Evidence Submitted in Support of Plaintiffs Motion for Partial Summary Judgment. Dkt. No. 104. The Court shall consider each objection in turn.
1. Declarations of Anna Fairbank, Terry Blanchard, Dudley Kenworthy, and Andrea Kopecky
Defendant first objects to the declarations of three of its standing witnesses— Anna Fairbank, Terry Blanchard, and Dudley Kenworthy — and the declaration of fact witness Andrea Kopecky on the grounds that Plaintiff failed to identify these witnesses through initial or supplemental disclosures, or by signed disclosures required by FRCP 26(a), (e) and (g). Defendant states that Plaintiff did not list these witnesses in its initial disclosures, nor has it supplemented its initial disclosures to later identify them. Defendant argues that it had no notice that these witnesses even existed until Plaintiff filed its motion for partial summary judgment.
In response, Plaintiff maintains that the declarations and supporting exhibits were timely disclosed with their motion, and that FRCP 26(e) specifies no particular timeframe for supplementation. Plaintiff argues that identifying witnesses willing to subject themselves to the rigors of litigation takes time, yet it was able to provide Defendant with the names of two other standing witnesses, Robert Fair-bank and Deborah Self, in its initial disclosures sent in March of 2010. Plaintiff states that it continued to investigate potential standing witnesses as it prepared its motion, and was therefore able to produce the three additional standing witness declarations with the motion. As to Ms. Kopecky’s declaration, Plaintiff states that the need for her investigation did not arise until Plaintiffs engineer determined that there were omissions in the maps of the storm sewers within Defendant’s service area. Thus, Ms. Kopecky, who is employed by Plaintiff as a Legal Associate, went to the locations where Defendant documented spills and confirmed the portions of the storm sewer that were missing from the maps by taking pictures and comparing GPS readings. Kopecky Decl. ¶¶ 1, 12-13, Dkt. No. 75. On January 25, 2011, Plaintiff sent Defendant supplemental disclosures consisting of, among other documents, 124 photographs taken by Ms. Kopecky that Plaintiff intended to rely upon in bringing its motion. Cooper Reply Decl. ¶ 8, Dkt. No. 106.
Pursuant to FRCP 26(a), a party must, without awaiting a discovery request, provide to the other party the name of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses. Fed. R.Civ.P. 26(a)(1)(A)(i). “May use” includes any use to support a pretrial motion. See Adv. Comm. Notes to 2000 Amendment to Fed.R.Civ.P. 26(a)(1). However, this mandatory early disclosure is limited to information reasonably available to the party. Fed.R.Civ.P. 26(a)(1)(E). “Reasonably available” covers information known to a party, its agents and counsel, as well as information obtainable through reasonable investigation. See Adv. Comm. Notes to 1993 Amendment to Fed.R.Civ.P. 26(a). Parties have an ongoing duty to supplement their initial disclosures “in a timely manner” upon determining that the initial disclosures are materially incomplete or inaccurate. Fed.R.Civ.P. 26(e)(1)(A).
A party who fails to make the required initial disclosure “is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at trial,” except where the failure to comply was “substantially justified” or “harmless.” Fed.R.Civ.P. 37(c)(1); Hoffman v. Constr. Protective Serv., Inc., 541 F.3d 1175, 1179 (9th Cir.2008). In determining whether to preclude introduction of evidence pursuant to FRCP 37, courts consider “(1) the surprise to the party against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence, and (5) the nondisclosing party’s explanation for it failure to disclose the evidence.” Dey, L.P v. Ivax Pharm., Inc., 233 F.R.D. 567, 571 (C.D.Cal.2005) (citing S. States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592 (4th Cir.2003)).
Here, the Court finds that Plaintiffs failure to disclose these four witnesses prior to filing its motion was substantially justified and harmless. As to the first factor, the purpose of Anna Fair-bank, Terry Blanchard, and Dudley Ken-worthy’s declarations is to establish Plaintiffs standing to bring the present claim. Although Plaintiff did not provide Fair-bank, Blanchard, and Kenworthy’s individual names as part of its initial and supplemental disclosures, Defendant cannot say it is surprised that Plaintiff would submit declarations from its members stating their use of the waters of the Bay and its tributaries. Further, Plaintiff provided Defendant with the names of two other standing witnesses, Robert Fairbank and Deborah Self, in its initial disclosures sent in March of 2010. As all five declarations serve the same purpose — to establish standing — the Court finds that the first factor weighs in favor of allowing the witnesses’ declarations.
As to fact witness Andrea Kopecky, Plaintiff provided Defendant supplemental disclosures on January 25, 2011, including 124 photographs taken by Kopecky related to omissions in the maps of the storm sewers within Defendant’s service area. Cooper Reply Deck ¶ 8, Dkt. No. 106. As Kopecky’s declaration concerns the photographs and related investigation, the Court finds that the first factor also weighs in favor of allowing Kopecky’s declaration.
As to the second factor, the ability of the proponent of sanctions to cure the surprise, the Court finds that this factor is neutral. The Court recognizes that, given the timing of the declarations, Defendant has had limited time to cure any surprise. However, Defendant has not identified any prejudice it has suffered by the timing of the declarations. As discussed above, the declarations address standing issues, which cannot be considered a surprise, and photographs that Defendant obtained in supplemental disclosures. Further, Plaintiff states that it made all of its standing witnesses available for deposition before Defendant’s opposition was due, yet Defendant has taken none of these witnesses’ depositions. Cooper Reply Decl. ¶¶ 10-12, Exs. E & F, Dkt. No. 106.
For similar reasons, the third factor— the likelihood that introduction of evidence will disrupt the trial — weighs against preclusion. For purposes of standing, Plaintiff has submitted five declarations, and Defendant has provided no objections to two of them. While Defendant objects to the timeliness of three of the declarations, its opposition to Plaintiffs motion raises no issues related to the statements made in those declarations. As to Andrea Kopecky’s declaration, the Court finds that her declaration goes directly establishing a dispute issue in this case — precise locations of the SSOs- — and addresses omissions in the maps of the storm sewers within Defendant’s service area. Thus, there is no indication that the introduction of this evidence will disrupt the proceedings.
The final two factors — the importance of the evidence and the proponent’s explanation for failure to offer it earlier- — also weigh against preclusion. First, the Court finds that the declarations are important to Plaintiffs case. As to the standing witnesses, these witnesses provide additional support for Plaintiffs standing. As to fact witness Andrea Kopecky, her declaration is directed toward alleged omissions in the maps of the storm sewers within Defendant’s service area, which Plaintiff states did not arise until Plaintiffs engineer determined that there were omissions in the maps of the storm sewers within Defendant’s service area. While the location methods described therein are discussed below, see Section III(D)(1)(b)(I), infra, the Court finds the location of spills within the MS4 is important to the Court’s consideration of this case.
Second, the Court finds that Plaintiffs timing on disclosing these witnesses and documents was substantially justified because its investigation into the elements of the case was ongoing while preparing the summary judgment motion. Plaintiff states that identifying witnesses willing to subject themselves to the rigors of litigation takes time, and that it continued to investigate potential standing witnesses throughout the course of this litigation. As another judge in this district has recognized, supplemental disclosure of declarations with a summary judgment motion is, in certain instances, acceptable: “As the deadline for summary judgment nears in any civil case, it is customary for counsel to solicit declarations .... In this process, it would be unreasonable and burdensome (and rarely, if ever, done in practice) to require all sides to augment any ... disclosure lists each and every time they obtain a declaration for potential use on summary judgment.” Intel Corp. v. VIA Tech., Inc., 204 F.R.D. 450, 451 (N.D.Cal. 2001).
Finally, the Court notes that if the timing of Plaintiffs disclosure was a serious concern to Defendant, it could have moved under FRCP 56(d) for more time to oppose the motion and seek to obtain discovery in the interim. See Fed.R.Civ.P. 56(d) (“If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: ... (2) allow time to obtain affidavits or declarations or to take discovery.”) Defendant made no such request. Defendant did not do so.
Based on this analysis, the Court DENIES Defendant’s request that it disregard the declarations of Anna Fairbank, Terry Blanchard, Dudley Kenworthy, and Andrea Kopecky.
2. Corrected Declaration of Deborah Self
As part of its motion for partial summary judgment, Plaintiff filed the Declaration of Deborah Self in support thereof. Dkt. No. 76. On February 9, 2011, Plaintiff filed a corrected version of Ms. Selfs declaration. Dkt. No. 96. In so doing, Defendant argues that Plaintiff violated the Court’s Civil Local Rules, which provide that a motion must be accompanied by affidavits or declarations. Civil L.R. 7-2(d), 7-5. Based on these local rules, Defendant argues that it follows that an affidavit or declaration must be filed concurrently with the motion, and that Plaintiff is attempting to circumvent the local rules by filing the corrected version of Ms. Selfs declaration. Defendant also points out that Plaintiff filed the revised declaration one-and-a-half weeks after it filed its motion and just five business days before Defendant’s opposition was due, arguing that this delay is a tactic used by Plaintiff to gain a litigation advantage. Defendant argues that the corrected declaration contains substantive changes, and it provides a redlined version comparing the original declaration with the corrected version. Thorme Decl. ¶ 13m Ex. H, Dkt. No. 99.
In response, Plaintiff states it did not discover that it filed a draft version of Deborah Selfs Declaration until February 8, 2011, when it was preparing for her deposition. Plaintiff argues that it complied with the rules and appropriately corrected the error and provided ample time for Defendant to inquire into the correction. Plaintiff points out that Defendant conducted no inquiry into the differences during Ms. Selfs deposition.
Upon review of the parties’ arguments, the Court finds no reason to preclude the corrected declaration. First, Plaintiff properly submitted Ms. Selfs original declaration with its motion pursuant to Civil Local Rules 7-2 and 7-5. Although Defendant appears to argue that the Court can only consider a declaration if it is submitted concurrently with the motion, this would not allow for any corrections to be made once a motion has been filed. Defendant provides no authority for this argument, and the Court is aware of none. Second, Plaintiff filed and served the corrected declaration in compliance with the ECF procedures for correcting errors. Cooper Suppl. Decl. ¶ 4, Dkt. No. 95. Third, Defendant identifies no substantive dispute with the corrections. Finally, Plaintiff served the corrected declaration five days prior to Ms. Selfs deposition, yet Defendant did not inquire into the corrections, either before or during the deposition. Defendant suffered no prejudice. Accordingly, the Court DENIES Defendant’s request that it disregard the corrected declaration of Deborah Self.
3. Declaration of Bruce Bell
Defendant next objects to the declaration of Bruce Bell, Ph.D., Plaintiffs expert, Dkt. No. 73, on the grounds that the declaration fails to comply with Federal Rules of Evidence 402, 403, and 702. Defendant cites generally to these rules and provides no specific case law in support of its arguments. In the alternative, West Bay objects to Dr. Bell’s declaration on the grounds that Plaintiff failed to identify him as a fact witness through initial or supplemental disclosures, or by signed disclosures required by FRCP 26(a), (e) and (g), and that as a fact witness, his declaration fails to meet the requirements of Civil Local Rule 7-5.
a. Whether the Bell Declaration is Inadmissible as Expert Opinion Testimony
Defendant’s first argument is that Dr. Bell’s declaration is inadmissible as expert opinion testimony. Defendant breaks down its objections into groups of paragraphs contained in Dr. Bell’s declaration; however, Defendant’s objections can be summarized as follows: (1) Dr. Bell fails to provide sufficient data to support his conclusions; and (2) Dr. Bell fails to utilize reliable principles.
Federal Rule of Evidence (“FRE”) 702 governs the admissibility of expert testimony. Pursuant to FRE 702, a witness qualified as an expert in “scientific” knowledge may testify thereto if: “(1) the testimony is based upon sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the witness has applied the principles and methods to the facts of the case.” Fed. R.Evid. 702. The trial court acts as a gatekeeper to the admission of expert scientific testimony under FRE 702. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-93, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Under Daubert, the Court must conduct a preliminary assessment to “ensure that any and all scientific testimony or evidence admitted is not only relevant but reliable.” Id. at 589, 113 S.Ct. 2786. This two-step assessment requires consideration of whether (1) the reasoning or methodology underlying the testimony is scientifically valid (the reliability prong); and (2) whether the reasoning or methodology properly can be applied to the facts in issue (the relevancy prong). Id. at 592-93, 113 S.Ct. 2786; Kennedy v. Collagen Corp., 161 F.3d 1226, 1228 (9th Cir.1998).
Reliable testimony must be grounded in the methods and procedures of science and signify something beyond “subjective belief or unsupported speculation.” Daubert, 509 U.S. at 590, 113 S.Ct. 2786. The inferences or assertions drawn by the expert must be derived by the scientific method. Id. In essence, the court must determine whether the expert’s work product amounts to “ ‘good science.’ ” Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 1315 (9th Cir.1995) (“Daubert II ”) (quoting Daubert, 509 U.S. at 593, 113 S.Ct. 2786). In Daubert, the Supreme Court outlined factors relevant to the reliability prong, including: (1) whether the theory can be and has been tested; (2) whether it has been subjected to peer review; (3) the known or potential rate of error; and (4) whether the theory or methodology employed is generally accepted in the relevant scientific community. Daubert, 509 U.S. at 593-94, 113 S.Ct. 2786.
The relevancy or “fit,” prong requires that the testimony be “relevant to the task at hand, ... i.e., that it logically advances a material aspect of the proposing party’s case.” Daubert II, 43 F.3d at 1315 (quoting Daubert, 509 U.S. at 597, 113 S.Ct. 2786). Relevancy requires opinions that would assist the trier of fact in reaching a conclusion necessary to the case. Kennedy v. Collagen Corp., 161 F.3d 1226, 1230 (9th Cir.1998).
The proponent of the evidence must prove its admissibility by a preponderance of proof. Daubert, 509 U.S. at 593 n. 10, 113 S.Ct. 2786.
i. Whether Dr. Bell’s Testimony is Reliable
First, the Court must determine whether Dr. Bell’s testimony “is the product of reliable principles and methods.” Fed.R.Evid. 702. Expert opinion testimony is deemed sufficiently reliable if the expert has “good grounds” for his testimony — i.e., if the expert’s conclusions are based on the knowledge and experience of his discipline rather than on “subjective belief or unsupported speculation.” Daubert, 509 U.S. at 589, 113 S.Ct. 2786; Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147-48, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). The proponent need not prove that the expert’s testimony is correct, but he or she must prove by a preponderance of the evidence that the testimony is reliable. Moore v. Ashland Chem., Inc., 151 F.3d 269, 276 (5th Cir. 1998).
Here, Dr. Bell sets out his background and qualifications in paragraphs 1-6 of his declaration, to which Defendant has filed no objections. Dr. Bell holds bachelors and masters degrees in civil engineering and a Ph.D. in environmental engineering, and he has over 40 years experience in environmental engineering. Bell. Decl. ¶ 3, Dkt. No. 73. His experience includes design and evaluation of wastewater treatment plants and collection systems and infiltration and inflow reduction studies. Id. He has been recognized as an expert in environmental engineering over ten times by federal courts, including two cases regarding SSOs. Id. ¶ 4. Dr. Bell also has experience in designing storm sewers, preparing stormwater management plans, and evaluating the adequacy of stormwater management systems. Id. ¶ 5. He has designed storm sewers, storm sewer systems, and prepared stormwater management plans for facilities ranging from residential development to a 6,500 acre U.S. Army laboratory. Id. He also has extensive experience in evaluating the impacts of pollutants contained in municipal wastewaters on receiving waters, including water quality monitoring to determine the allowable amount of pollutants that may be discharged without exceeding water quality standards; determining the impact of pollutants discharged to receiving waters; and determining the distance that bacterial and organic pollutants travel prior to dying or being consumed. Id. ¶ 6. Based on this background, the Court finds no reason to question Dr. Bell’s qualifications to act as an expert witness in this case.
Despite Dr. Bell’s qualifications, Defendant argues that his testimony is inadmissible because it fails to provide sufficient facts and data to support his opinion about the composition of Defendant’s sewage. Specifically, in paragraphs 7-15, Dr. Bell provides a background on SSOs, including common pollutants contained therein, and states that Defendant’s SSOs contain pollutants. Id. ¶¶ 7-15. In support of his testimony, Dr. Bell refers to Defendant’s own Sewer System Management Plan, analytical data of samples of the sewage waste stream to which Defendant contributes, a report to Congress prepared by the EPA, a scientific article on pathogen survival, and his over 40 years of experience as a scientist and engineer. Id. n. 7-21. Defendant does not object to the reliability of the information on which Dr. Bell relies to support his opinion. The Ninth Circuit has indicated that independent research, rather than research conducted for the purposes of litigation, carries with it the indicia of reliability. Daubert II, 43 F.3d at 1317. In particular, using independent, pre-existing research “provides objective proof that the research comports with the dictates of good science” and is less likely “to have been biased by the promise of remuneration.” Id. Further, experts may express opinions based on information made known to them through means other than the expert’s own percipient observation, including reports, studies, and literature. Fed.R.Evid. 703 advisory committee’s notes. The facts or data relied upon need not be admissible in evidence so long as of a type reasonably relied on by experts in the particular field in forming opinions or inferences on the subject. Fed.R.Evid. 703. As Dr. Bell’s declaration provides independent resources on which he based his opinion, the Court finds no reason to question its reliability. Moreover, Defendant’s objection seems to focus on whether Dr. Bell’s conclusions are correct. However, the proponent need not prove that the expert’s testimony is correct; he or she must only prove by a preponderance of the evidence that the testimony is reliable. Moore, 151 F.3d at 276.
Defendant also argues that Dr. Bell’s specific methods are unreliable, directing the Court’s attention in particular to paragraphs 16-22 and 39-56. In these paragraphs, Dr. Bell discusses Defendant’s SSO reporting and explains the spill identification and mapping of SSOs that he completed related to this case. In its objections, Defendant acknowledges that Dr. Bell reviewed reports on Defendant’s SSOs, MS4 system maps provided by relevant municipalities, historical information about area water bodies downstream of these SSOs, and examined photographs of the locations of these SSOs. Def.’s Objections at 6:6-8, Dkt. # 104. However, Dr. Bell also states that he examined maps of the storm drain systems prepared by government agencies, requested field investigation of the path of the discharges when the documentary evidence was incomplete, and did not make conclusions regarding the discharge of pollutants in SSOs when the available information was incomplete. Bell Decl. ¶¶ 39-46, Dkt. # 73. For example, in paragraph 46, which refers to an SSO in Menlo Park, Dr. Bell states that the SSO path and the surface water pollutants discharged to “could not be traced with the information made available to me. I did not include this SSO in my analysis.”
Upon review of the parties’ arguments and the evidence presented by Dr. Bell, the Court finds that this portion of his testimony raises at least questions about the reliability of his methodology. In his declaration, Dr. Bell makes a number of assumptions based on generalized data (e.g. from the EPA) about rainfall and flow, but he does not make any calculations particular to the MS4 characteristics in this case. For instance, he did not calculate the amount of SSO flowing into MS4 for each SSO intake, the length of the MS4 pathway to surface waters, the slope of the MS4 pipes, etc., in concluding the SSO reached surface waters.
In addition, where there were no maps, there are serious questions about the qualifications of those that conducted field investigations, as well as their methodologies, especially with respect to the pathways between the MS4 intake and surface water outfall. For example, Plaintiff states that Defendant reported SSOs entering the MS4 where the location of the relevant storm drains was missing from the MS4 data that Plaintiff obtained. For these spills, Plaintiff states that its “field investigation confirmed the GPS location or address of each spill and then, using GPS, identified the storm drains where the SSO entered the MS4.” Pl.’s Mot. at 12:12-16. For an explanation of the field investigation, Plaintiff cites to the Declaration of Andrea Kopecky, a Legal Associate employed by San Francisco Baykeeper. Dkt. No. 75. In her declaration, Ms. Kopecky states that she used a GPS to mark the location of manholes and storm drains for each of these locations, used a digital camera to take pictures of the manholes and storm drains at each site, and then, starting at the manholes, identified storm drains that were likely to receive sewage in the event of a spill, based in part on which direction the road was sloping, and then traced the spill from the storm drain to a visible waterbody. Kopecky Decl. ¶ 13, Dkt. No. 75. Ms. Kopecky provides no information regarding her qualifications for making these determinations.
The Court concludes nonetheless that for purposes of this motion, Dr. Bell’s declaration survives Daubert. The issues discussed above go to the weight of the opinion testimony and are not so fundamental as to bar its threshold admissibility.
In paragraphs 23-27, Dr. Bell addresses Defendant’s SSO reports and states that Defendant under-reports the volume of SSOs. Defendant argues that Dr. Bell fails to offer sufficient facts to support his conclusions. However, Dr. Bell explains the principles he utilizes to demonstrate estimation of spill volumes and how they can be under-reported, see Bell Decl. ¶¶ 23-24, Dkt. # 73, and provides specific examples of how he determined that Defendant’s methods underestimate spill volume. Bell Decl. ¶¶ 25-27, Dkt. # 73. For instance, in paragraph 25, Dr. Bell states as follows:
The Overflow Sewer Report for SSO Number 30 on Table 2 reports a call out at 6:25 AM. The SSO stopped at 7:35 AM; 70 minutes later. SSO duration on the Overflow Sewer Report was recorded as 40 minutes. Given the estimated SSO flow rate of 5 gallons per minute (gpm) for 40 minutes, West Bay estimated the SSO volume discharged to be 200 gallons. Using the correct minimum duration of the SSO, 70 minutes, the volume of the SSO was, at least, 350 gallons; 175% of West Bay’s reported estimated volume.
Id. ¶ 25. In reaching this conclusion, Dr. Bell utilized Defendant’s own overflow report. The Court finds no reason to determine that this testimony is unreliable.
Paragraphs 28-38 offer generalized summaries of various bodies of water that Dr. Bell states are surface waters that received discharges from Defendant’s SSOs. Defendant argues that his conclusions regarding whether or not Defendant’s SSOs reached these areas are unsubstantiated, and that he provides descriptions regarding these areas without any supporting references or documentation. However, Defendant fails to provide any specific instances of statements that it contends are unsubstantiated. A review of Dr. Bell’s declaration shows that he does, in fact, support his conclusions with numerous documents, both historical and current, regarding the waters. Bell Decl. fn. 32-72, Dkt. No. 73. For example, in paragraph 32, Dr. Bell states that “Corte Madera Creek discharges into San Francisquito creek after passing through Searsville Lake and spilling over Searsville Dam. [Defendant’s] SSOs and the pollutants contained therein reaching Corte Madera Creek impact the chemical/biological integrity of Corte Madera Creek, San Francisquito Creek, and San Francisco Bay.” Bell Decl. ¶ 32, Dkt. No. 73. In support of this testimony, Dr. Bell provides a United States geological survey detail report for Corte Madera Creek, the Oakland Museum’s Guide to San Francisco Bay Area Creeks, and a San Francisquito Creek Joint Power Authority, San Francisquito Creek Watershed, July 2002 map. Hunt Decl. Exs. J, K, Dkt. No. 88. Defendant does not object to any of the documents utilized by Dr. Bell. And, given Dr. Bell’s qualifieations discussed above, Defendant has failed to show how his use of this documentation is unreliable. While Defendant might disagree with the conclusions Dr. Bell reached, the Court finds no reason to find his testimony unreliable on this basis.
Finally, Defendant argues that paragraphs 57-83, which contain Dr. Bell’s conclusions regarding which of Defendant’s SSOs reached surface waters, are objectionable because he reached those conclusions through an unreliable methodology. Without providing any specific examples or legal authority in support of its argument, Defendant requests that the Court disregard paragraphs 57-83. However, as discussed above, Dr. Bell’s declaration establishes his qualifications to make these determinations, he has provided uncontested documentation supporting his testimony, and Defendant provides nothing more than generalized one-line arguments regarding why his methodology is unreliable. As Dr. Bell’s conclusions are based on the knowledge and experience of his discipline rather than on “subjective belief or unsupported speculation,” the Court finds his testimony admissible. Daubert, 509 U.S. at 589, 113 S.Ct. 2786; Kumho Tire Co., 526 U.S. at 147-48, 119 S.Ct. 1167. And, once again, while Defendant might disagree with the conclusions Dr. Bell reached, Plaintiff need not prove that his conclusions are correct. Moore, 151 F.3d at 276.
Based on this analysis, the Court determines that Dr. Bell’s testimony is the product of reliable principles and methods pursuant to FRE 702.
ii. Whether Dr. Bell’s Testimony is Relevant
Second, the Court must determine whether Dr. Bell’s opinion assists in understanding or determining a fact in issue. As stated above, the relevancy, or “fit,” prong requires that the testimony be “relevant to the task at hand, ... i.e., that it logically advances a material aspect of the proposing party’s case.” Daubert II, 43 F.3d at 1315 (quoting Daubert, 509 U.S. at 597, 113 S.Ct. 2786). Relevancy requires opinions that would assist the trier of fact in reaching a conclusion necessary to the case. Kennedy, 161 F.3d at 1230. Defendant’s objections include references to FRE 402, yet it fails to explain why it cites to this rule. FRE 402 provides that all relevant evidence is admissible, and evidence which is not relevant is not admissible. Fed.R.Evid. 402. “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed.R.Evid. 401. A review of Dr. Bell’s declaration shows that his testimony meets this standard.
Paragraphs 7-15 provide information on the constituents of sewage, both generally and specifically as to the sewage conveyed by Defendant. The composition of sewage is relevant to the question of the types of pollutants discharged to waters of the United States. Paragraphs 23-27 provide Dr. Bell’s opinions on the accuracy of Defendant’s reporting of the volume of its SSOs. Given that Defendant disputes that its SSOs reached surface waters, Dr. Bell’s determinations are relevant. Paragraphs 28-38 provide facts that support Dr. Bell’s conclusion that Defendant’s SSOs reach surface waters, and his conclusion that these surface waters are waters of the United States. This conclusion relates to an element of Plaintiffs case, and Dr. Bell’s testimony related to this issue is therefore relevant. Paragraphs 57-83 provide facts demonstrating which surface waters received discharges from Defendant’s SSOs. As Plaintiffs’ summary judgment motion is focused on proving that certain of Defendant’s SSOs resulted in the discharge of pollutants to waters of the United States, the Court finds this testimony relevant.
Based on this analysis, the Court finds that Dr. Bell’s opinion is relevant to material aspects of Plaintiffs case. Accordingly, because Dr. Bell’s testimony is both relevant and rehable under Daubert, the Court DENIES Defendant’s request that it disregard the declaration of Bruce Bell as inadmissible expert witness testimony,
b. Whether the Bell Declaration is Inadmissible as Fact Witness Testimony
In the alternative, Defendant argues that Dr. Bell’s declaration is also unavailable as fact witness testimony because he was not formally identified as a fact witness until February 11, 2011, (Thorme Decl. ¶¶ 14-16, Ex. C, Dkt. No. 98), over two weeks after Plaintiff filed its motion for partial summary judgment. Defendant argues that his declaration must therefore be excluded pursuant to FRCP 37(c)(1). Defendant also maintains that Dr. Bell’s declaration is replete with unsupported conclusions and lacking personal knowledge, and should be disallowed on these grounds as well.
In response, Plaintiff argues that Dr. Bell is its expert witness and it properly disclosed him as its expert when it filed its motion for partial summary judgment on January 31, 2011. Thus, Plaintiff argues that Dr. Bell is a properly disclosed expert whose personal knowledge is irrelevant to the admissibility of his expert declaration.
As discussed above, the Court finds that Dr. Bell’s declaration is properly admitted as expert witness testimony; therefore, his testimony is not that of a fact witness. Pursuant to FRCP 26, a party must make its expert witness disclosures at the times and in the sequence that the court orders. Fed.R.Civ.P. 26(a)(2)(D). Here, the Court ordered that experts be disclosed and reports provided by April 29, 2011. Case Mgmnt. Order ¶ 2(c), Dkt. No. 36. Thus, Plaintiffs disclosure is timely under the Court’s case management order. Furthermore, as noted above, Defendant could have moved under Rule 56(d) to defer its opposition and take Dr. Bell’s deposition. Defendant failed to do so. Thus, Plaintiff properly disclosed Dr. Bell under FRCP 26 and the Court’s case management order. Defendant’s argument is without merit.
4. Hearsay Objections
Finally, Defendant objects on hearsay grounds to two exhibits submitted by Plaintiff in support of its motion. Hearsay “is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fed. R.Evid. 801(c). FRE 802 prohibits the admission of hearsay statements, subject to certain exceptions. The Court shall discuss each objection in turn.
a. Hunt Declaration
Defendant objects to Exhibit A to the Declaration of Drevet Hunt, which is a table listing Defendants’ 68 SSOs that allegedly reached surface waters. Dkt. No. 83. The table has columns containing an identifying number for each specific SSO, as well as each SSO’s location, date, and reported volume in gallons, and a column for the name of related surface waters. Hunt Decl. Ex. A, Dkt. No. 83. Defendant argues that this document is an out-of-court statement offered to prove the truth of the matter asserted — that the listed SSOs actually reached surface waters.
In response, Plaintiff argues that the spill table is not offered as evidence but is instead provided for the Court’s referencé under FRE 1006 as an index of the SSOs at issue in this Motion. Plaintiff explains that the table lists each spill by number and thus refers to the numbered exhibits that are part of Exhibit D to the Hunt declaration. Exhibit D consists of copies of documents obtained by Plaintiff from Defendant either via Mr. Hunt’s Public Records Act document request sent to Defendant on June 29, 2009, or Plaintiffs Requests for Production of Documents, Sets 1-3. Hunt Decl. ¶ 9, Dkt. # 83.
Pursuant to FRE 1006, “[t]he contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation.” “When considering the admissibility of exhibits of this nature, it is critical to distinguish between charts or summaries as evidence and charts or summaries as pedagogical devices.” United States v. Wood, 943 F.2d 1048, 1053 (9th Cir.1991) (citation omitted). Charts and summaries as evidence are governed by FRE 1006. In contrast, charts or summaries of testimony or documents already admitted into evidence are merely pedagogical devices, and are not evidence themselves. Id. (citation omitted). “[S]uch pedagogical devices should be used only as a testimonial aid, and should not be admitted into evidence.” Id. (citations omitted).
Here, Plaintiffs spill table is a summary of the documents contained in Mr. Hunt’s de