PLAINTIFFS’ RESPONSES TO DEFENDANT’S OBJECTIONS TO EVIDENCE IN SUPPORT OF
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Michael Tenenbaum, Esq. (No. 186850)
mt@post.harvard.edu
THE TENENBAUM LAW FIRM
1431 Ocean Ave., Ste. 400
Santa Monica, CA 90401
Tel (310) 919-3194
Fax (310) 919-3727
Counsel for Plaintiffs
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
ASSOCIATION DES ÉLEVEURS DE
CANARDS ET D’OIES DU QUÉBEC, a
Canadian nonprofit corporation; HVFG
LLC, a New York limited liability
company; and HOT’S RESTAURANT
GROUP, INC., a California
corporation;
Plaintiffs,
– against –
KAMALA D. HARRIS, in her official
capacity as Attorney General of
California;
Defendant.
Case No. 2:12-cv-05735-SVW-RZ
PLAINTIFFS’ RESPONSES TO
DEFENDANT’S OBJECTIONS TO
EVIDENCE IN SUPPORT OF
MOTION FOR SUMMARY
JUDGMENT ON FEDERAL
PREEMPTION CLAIM
[ORAL ARGUMENT REQUESTED]
Date: November 24, 2014
Time: 1:30 p.m.
Courtroom: 6
Hon. Stephen V. Wilson
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Plaintiffs Association des Éleveurs de Canards et d’Oies du Québec, HVFG LLC,
and Hot’s Restaurant Group, Inc., submit these responses to Defendant’s objections to
certain evidence that Plaintiffs submitted in support of their motion for summary
judgment based on federal preemption. As the Court will note, Defendant — who did
not submit any evidence of her own in response to Plaintiffs’ motion for summary
judgment — has lodged excessive, meritless, unnecessarily time-consuming, and in some
places even frivolous objections to Plaintiffs’ evidence. For the reasons provided below
(and for others that the Court would find obvious on their face even in the absence of
these responses), all of Defendant’s objections should be OVERRULED.
RESPONSES TO DEFENDANT’S OBJECTIONS TO DECLARATION OF BENOIT CUCHET
1. Cuchet Decl., p. 1, lines 12-21, ¶ 3:
“The production of the Canadian Farmers’ poultry products for sale in the
United States and the importation of our products are governed by the
Poultry Products Inspection Act. Before Palmex or any other Canadian
Farmer may sell its poultry products into the United States, federal law —
i.e., the law of the United States — requires that we meet all requirements of
the United States Department of Agriculture (the “USDA”). All of the
Canadian Farmers’ poultry products, including products containing foie
gras, are (and must be) prepared at an “official establishment,” and a USDA
inspector is present in the official establishment at which our products are
prepared here in Canada. We of course comply with all of the applicable
laws of the United States as well as those of Québec and of Canada.”
Defendant’s Objection(s)
“Calls for a legal conclusion. Determining what laws apply to the sale of
these products and whether the law has been complied with are legal
questions. Benoit Cuchet is not a legal expert and cannot opine on these
issues.”
Plaintiffs’ Response
Mr. Cuchet states that he is the General Manager of a Canadian company,
Palmex, which produces products containing foie gras for sale to the United States.
(Cuchet Decl. ¶¶ 1-3.) Mr. Cuchet is not required to be a “legal expert” or opine on
“legal questions” in order to be able to provide competent testimony to the facts set
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forth above about the very business he manages. To take a simple example, the
manager of a bar in Los Angeles does not need to be a “legal expert” or opine on “legal
questions” to competently testify that his bar may not sell alcoholic beverages to people
under the age of 21, to say that his bar is subject to inspection by the Department of
Alcoholic Beverage Control, or to say that the bar complies with that law. Here, Mr.
Cuchet simply states that the Canadian Farmers’ poultry products are regulated by the
USDA, to which he testifies from personal knowledge, just as he has personal
knowledge that these products are prepared at an “official establishment” where a
USDA inspector is present. As the General Manager of one of the Canadian Farmers,
and the First Vice-President of their association, Mr. Cuchet states that he knows that
the Canadian Farmers must comply with all the requirements that the USDA imposes in
order to sell their products in the United States (as they do). Mr. Cuchet’s statements
are based on his personal experience, and he does not purport to opine on a pure
question of law or otherwise draw a conclusion on an ultimate legal issue in this case.
Defendant’s objection should be OVERRULED.
2. Cuchet Decl., p. 2, lines 4-12, ¶ 5 and Ex. A:
“While many of our products are generically approved because they comply
with the standards and ingredient requirements in the USDA’s Food
Standards and Labeling Policy Book, Palmex has applied to the USDA for
approval of many of the foregoing processed products, which required a
detailed identification of the ingredients in each, and all of Palmex’s
products are certified wholesome and approved for sale by the USDA. As an
example, a true and correct copy of the USDA’s approval of the ingredients
in Palmex’s ‘Whole Duck Foie Gras Torchon Style’ (with the specific
percentages of the additional, non-foie gras ingredients redacted for trade
secret purposes) is attached hereto as Exhibit A.”
Defendant’s Objection(s)
“Calls for a legal conclusion. Determining what laws apply to these
products and whether the law has been complied with are legal questions.
Benoit Cuchet is not a legal expert and cannot opine on these issues.
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“Lacks foundation. Fed. R. Evid. 602. The attached document appears to
be a November 21, 2002 request for label approval. Thus, it only
establishes that the USDA at one time granted label approval subject to
compliance with applicable laws and regulations. (Cuchet Decl., Ex. A.)
There is no foundation for why this approval was granted or the import of
this approval.
“Irrelevant. The Food Standards and Labeling Policy Book is irrelevant to
the preemption question because policy statements, agency manuals, and
enforcement guidelines all lack the force of law and therefore cannot
preempt California law. Christensen v. Harris Cnty., 529 U.S. 576, 587
(2000); S. Pac. Transp. Co. v. Pub. Util. Comm’n of State of Or., 9 F.3d
807, 812 n.5 (9th Cir. 1993).”
Plaintiffs’ Response
Mr. Cuchet states that he is the General Manager of a Canadian company,
Palmex, which produces products containing foie gras for sale to the United States.
(Cuchet Decl. ¶¶ 1-3.) Mr. Cuchet is not required to be a “legal expert” or opine on
“legal questions” in order to be able to provide competent testimony to the facts set
forth above about the very business he manages. (In the interest of avoiding
duplication, Plaintiffs respectfully refer the Court to their response to Defendant’s
objection in No. 1, above.) It does not require a “legal conclusion” for Mr. Cuchet,
based on his personal experience, to say that his company’s products are approved by
the USDA because they comply with the USDA’s standards and ingredient requirements
— or to say that his company has applied to the USDA for approval of many of the
processed products he identifies in paragraph 4 of his declaration, which required the
company to provide a detailed identification of the ingredients in each. It likewise does
not call for a “legal conclusion” for the General Manager of a company to state that the
company’s products are certified and approved for sale by the USDA, any more than it
calls for a “legal conclusion” for the general manager of an automaker to testify that his
company’s vehicles are certified and approved for sale by the Department of
Transportation.
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Mr. Cuchet’s attachment of an example of the USDA’s actual approval of the
ingredients in his company’s “Whole Duck Foie Gras Torchon Style” does not
somehow “lack foundation.” Defendant’s arguments that “it only establishes that the
USDA at one time granted label approval subject to compliance with applicable laws
and regulations” and that “[t]here is no foundation for why this approval was granted
or the import of this approval” are non-sequiturs and, at best, would go only to the
weight of this evidence.
Finally, it makes no sense for Defendant to argue that this evidence — which goes
to the very heart of the federal preemption issue that is the subject of this motion — is
somehow “irrelevant.” While a particular USDA product approval may not itself
provide the legal basis for preemption (since the Poultry Products Inspection Act and
the USDA regulations provide the preemptive force for Plaintiffs to prevail here), the
document itself is entirely relevant as evidence of federal preemption. Moreover, in
granting the plaintiffs’ motion for summary judgment on preemption grounds, the
Ninth Circuit in National Broiler Council v. Voss, 44 F3d 740 (9th Cir. 1994), held
that a federal agency’s interpretation of its own regulations — including even its own
policy memos — “should be given controlling weight.” Id. at 747 (emphasis added).
Defendant’s objection should be OVERRULED.
RESPONSES TO DEFENDANT’S OBJECTIONS TO DECLARATION OF MARCUS HENLEY
3. Henley Decl., p. 1, lines 10-21, ¶ 2:
“Before Hudson Valley or any other producer may sell its poultry products
within the United States, federal law requires that we comply with various
regulations concerning our facilities, our operating procedures, the ducks
before they are slaughtered, the ducks after they are slaughtered, the
marking of duck products with a USDA seal, the labeling and containers of
the duck products, and the ingredient requirements for our products
containing foie gras, including the definitions and standards of identity or
composition of these products. The production and sale of our products in
the United States are governed by the federal Poultry Products Inspection
Act. 21 U.S.C. §§ 451 et seq. and by regulations issued by the United States
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Department of Agriculture (the ‘USDA’). We of course comply with all of
the laws of the United States as well as those of New York. (No New York
law dictates how much food we may feed our ducks.)”
Defendant’s Objection(s)
“Calls for a legal conclusion. Determining what laws apply to the sale of
these products and whether the law has been complied are legal questions.
Marcus Henley is not a legal expert and cannot opine on these issues.”
Plaintiffs’ Response
Defendant’s objection to this evidence is the same as she made to the similar
paragraph in Mr. Cuchet’s declaration, and it should be OVERRULED for the same
reasons noted above. Mr. Henley states that he is the Operations Manager of Hudson
Valley and “oversee[s] every aspect of Hudson Valley’s operations,” including the
“processing into products for sale throughout the United States.” (Henley Decl. ¶ 1.)
Mr. Henley is not required to be a “legal expert” or opine on “legal questions” in order
to be able to provide competent testimony to the facts set forth above about the very
business he manages and oversees. To take a simple example, the manager of a bar in
Los Angeles does not need to be a “legal expert” or opine on “legal questions” to
competently testify that his bar may not sell alcoholic beverages to people under the age
of 21, to say that his bar is subject to inspection by the Department of Alcoholic
Beverage Control, or to say that the bar complies with that law. Here, Mr. Henley
simply states that Hudson Valley’s poultry products are regulated by the USDA, to
which he testifies from personal knowledge, just as he has personal knowledge of all of
the aspects of his operations that he explains the USDA requires Hudson Valley to
comply with. (In paragraph 3, he explains that a USDA inspector is on site at Hudson
Valley’s operations at all relevant times.) When Mr. Henley states that no New York
law dictates how much food Hudson Valley may feed their ducks, that statement simply
reflects his personal knowledge to that effect, just like the operations manager of an all-
you-can-eat restaurant may testify that he is unaware of any law that dictates how
much food the restaurant may offer its guests. Mr. Henley’s statements are based on
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his personal experience, and he does not purport to opine on a pure question of law or
otherwise draw a conclusion on an ultimate legal issue in this case.
Defendant’s objection should be OVERRULED.
4. Henley Decl., p. 1, lines 22-26, ¶ 3:
“Hudson Valley is a USDA-approved official establishment (USDA
Establishment No. P-17966) in Sullivan County, New York, and has a
USDA inspector on site at all relevant times. Every one of our foie gras
products is prepared, as it is required to be, in our official establishment.
And every one is certified as wholesome by the USDA for sale in the United
States.”
Defendant’s Objection(s)
“Calls for a legal conclusion. The term “official establishment” is defined by
federal law and “means any establishment as determined by the Secretary at
which inspection of the slaughter of poultry, or the processing of poultry
products, is maintained under the authority of this chapter.” 21 U.S.C.
§ 453(p). Marcus Henley is not a legal expert and cannot opine on these
issues.
“Lacks foundation/Vague. Fed. R. Evid. 602. Plaintiffs have not established
what official establishment their foie gras is prepared at or what they mean
by “prepared,” which is not defined by statute. Plaintiffs’ assertion that their
foie gras products are “certified as wholesome by the USDA” also lacks any
foundation.”
Plaintiffs’ Response
Defendant’s objections border on the frivolous. It does not “call[] for a legal
conclusion” for the Operations Manager of a federally regulated “official
establishment” to state that it is an “official establishment” (which Mr. Henley does
while even providing the official USDA Establishment Number). To take a simple
example, just because federal law may define the word “aircraft” does not mean that
only a “legal expert” — as opposed to, say, the pilot or operations manager of an
airline — may testify that the company operates an “aircraft.” Mr. Henley’s statements
are based on his personal experience, and he does not purport to opine on a pure
question of law or otherwise draw a conclusion on an ultimate legal issue in this case.
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Similarly, Defendant’s claim that Mr. Henley’s statement lacks foundation or is
“vague” is silly. Contrary to Defendant’s claim, Mr. Henley states that every one of
Hudson Valley’s foie gras products is prepared in Hudson Valley’s official
establishment, and he even included the official USDA Establishment Number for
Hudson Valley’s facility. Mr. Henley further states from personal experience running
Hudson Valley’s poultry processing facility that all of the company’s products
containing foie gras are “certified as wholesome by the USDA” since, in addition to
having a USDA inspector on site at all relevant times (Henley Decl. ¶ 3), he explains
that he personally oversees not only the slaughter but the “processing into products for
sale,” which provides the foundation for him to say that each of Hudson Valley’s
products bears a USDA certification that it is wholesome.
Defendant’s objections should be OVERRULED.
5. Henley Decl., p. 2, lines 2-6, ¶ 4:
“Hudson Valley applied to the USDA for approval of each of the foregoing
products (or otherwise has met the standards set forth in the USDA’s Food
Standards and Labeling Policy Book, in which case no separate application
for approval was necessary), which required a detailed identification of the
ingredients in each, and each of the foregoing products has been specifically
approved for sale by the USDA.”
Defendant’s Objection(s)
“Calls for a legal conclusion. Determining what laws apply to these
products and whether the law has been complied with are legal questions.
Marcus Henley is not a legal expert and cannot opine on these issues.
“Irrelevant. The Food Standards and Labeling Policy Book is irrelevant to
the preemption question because policy statements, agency manuals, and
enforcement guidelines all lack the force of law and therefore cannot
preempt California law. Christensen, 529 U.S. at 587; S. Pac. Transp. Co., 9
F.3d at 812 n.5.”
Plaintiffs’ Response
Defendant’s objections again border on the frivolous. It does not “call[] for a
legal conclusion for a person such as Mr. Henley to testify from his personal knowledge
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that the company whose operations he manages “applied to the USDA for approval” of
various products,” that the application process “required a detailed identification of the
ingredients in each,” and that each of those products “has been specifically approved
for sale by the USDA. Such testimony no more requires a “legal conclusion” than for
any seller of food products to testify — from personal knowledge — that he obtained
government approval for each of his products following an application process that
required a detailed identification of their ingredients. Mr. Henley’s statements are
based on his personal experience, and he does not purport to opine on a pure question
of law or otherwise draw a conclusion on an ultimate legal issue in this case.
Furthermore, as explained in response to no. 2 above, Hudson Valley’s
compliance with the USDA’s Food Standards and Labeling Policy Book is not only
“relevant” but is at the heart of the federal preemption issue that is the subject of this
motion. Hudson Valley’s products are made with federally-approved foie gras that the
USDA requires as the primary ingredient in its products, and these policies are reflected
in the agency’s own Food Standards and Labeling Policy Book — which is of central
relevance here. In granting the plaintiffs’ motion for summary judgment on preemption
grounds, the Ninth Circuit held in National Broiler Council v. Voss, 44 F3d 740 (9th
Cir. 1994), that a federal agency’s interpretation of its own regulations — including
even its own policy memos — “should be given controlling weight.” Id. at 747
(emphasis added).
Defendant’s objections should be OVERRULED.
6. Henley Decl., p. 2, lines 8-14, ¶ 5 & Ex. A:
“Hudson Valley has received approvals from the USDA for each of the
foregoing products (or otherwise has met the standards set forth in the
USDA’s Food Standards and Labeling Policy Book, in which case no
separate application for approval is necessary), or else the products could
not be sold in the United States. As an example, a true and correct copy of
the USDA’s approval of the ingredients in Hudson Valley’s “Mulard Duck
Foie Gras” — on a form that requires producers to “[l]ist the ingredients by
percent or weight” and to “provide complete processing procedures” — is
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attached hereto as Exhibit A.”
Defendant’s Objection(s)
“Calls for a legal conclusion. Determining what laws apply to these
products and whether the law has been complied with are legal questions.
Marcus Henley is not a legal expert and cannot opine on these issues.
“Lacks foundation. Fed. R. Evid. 602. The attached document appears to be
a March 18, 2005 request for label approval. Thus, it only establishes that
the USDA at one time granted label approval subject to compliance with
applicable laws and regulations. (Henley Decl., Ex. A.) There is no
foundation for why this approval was granted or the import of this
approval.
“Irrelevant. The Food Standards and Labeling Policy Book is irrelevant to
the preemption question because policy statements, agency manuals, and
enforcement guidelines all lack the force of law and therefore cannot
preempt California law. Christensen, 529 U.S. at 587; S. Pac. Transp. Co., 9
F.3d at 812 n.5.”
Plaintiffs’ Response
It does not “call[] for a legal conclusion for a person who oversees all of the
operations of a business that produces USDA-regulated products to state from personal
knowledge, as Mr. Henley does, to state that his company “has received approvals from
the USDA” for each of the products he identifies. Mr. Henley does not need to be a
“legal expert” to testify simply that Hudson Valley has received such approvals from
the USDA.
Mr. Henley’s attachment of an example of a foie gras product approval that
Hudson Valley has received does not “lack foundation.” Defendant’s arguments that
“it only establishes that the USDA at one time granted label approval subject to
compliance with applicable laws and regulations” and that “[t]here is no foundation for
why this approval was granted or the import of this approval” are non-sequiturs and, at
best, would go only to the weight of this evidence.
Finally, it makes no sense for Defendant to argue that this evidence — which goes
to the very heart of the federal preemption issue that is the subject of this motion — is
somehow “irrelevant.” While a particular USDA product approval may not itself
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provide the legal basis for preemption (since the Poultry Products Inspection Act and
the USDA regulations provide the preemptive force for Plaintiffs to prevail here), the
document itself is entirely relevant as evidence of federal preemption. Moreover, in
granting the plaintiffs’ motion for summary judgment on preemption grounds, the
Ninth Circuit held in National Broiler Council v. Voss, 44 F3d 740 (9th Cir. 1994),
that a federal agency’s interpretation of its own regulations — including even its own
policy memos — “should be given controlling weight.” Id. at 747 (emphasis added).
Defendant’s objections should be OVERRULED.
7. Henley Decl., p. 2, lines 15-18, ¶ 6 & Ex. B:
“As a second example, a true and correct copy of the USDA’s approval of
the ingredients in Hudson Valley’s “Torchon of Moulard Duck Foie Gras”
is attached hereto (with the specific percentages of the additional, non-foie
gras ingredients redacted for trade secret purposes) as Exhibit B.”
Defendant’s Objection(s)
“Calls for a legal conclusion. Determining what laws apply to these
products and whether the law has been complied with are legal questions.
Marcus Henley is not a legal expert and cannot opine on these issues.
“Lacks foundation. Fed. R. Evid. 602. The attached document appears to be
a March 4, 2011 request for label approval. Thus, it only establishes that the
USDA at one time granted label approval subject to compliance with
applicable laws and regulations. (Henley Decl., Ex. B.) There is no
foundation for why this approval was granted or the import of this
approval.”
Plaintiffs’ Response
Defendant’s objections to this evidence are totally frivolous. It does not “call[]
for a legal conclusion” for a declarant to attach a true and correct copy of an approval
he received from a federal agency in the course of serving as the Operations Manager of
the very business that applied for the agency’s approval. All Mr. Henley states is that
he is attaching the USDA’s approval of the ingredients in one of Hudson Valley’s foie
gras products — and the document itself is stamped by the USDA as “Approved.”
Defendant’s objection should be OVERRULED.
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Moreover, this document does not “lack[] foundation.” Mr. Henley’s
declaration states that he has overseen every aspect of Hudson Valley’s operations for
nearly 13 years, which obviously includes the year 2011, in which (the document
shows) Hudson Valley received this approval from the USDA. Indeed, the application
itself bears Mr. Henley’s signature. The remainder of Defendant’s objection is not fairly
based on a purported lack of foundation but, instead, goes merely to the weight she
wishes to ascribe to this evidence.
Defendant’s objections should be OVERRULED.
RESPONSES TO DEFENDANT’S OBJECTIONS TO DECLARATION OF SEAN CHANEY
8. Chaney Decl., p. 1, lines 14-16, ¶ 2
“All the foie gras products I purchased were USDA-approved as wholesome,
as indicated by the USDA mark on the products’ packaging.”
Defendant’s Objection(s)
“Lacks foundation. Fed. R. Evid. 602. The declaration attaches no such
examples. The other declarations submitted by Plaintiffs indicate that the
USDA has at some point permitted a label that states ‘Inspected for
Wholesomeness.’ (Henley Decl., Ex. A.)”
Plaintiffs’ Response
This is yet another meritless objection. Mr. Cheney states from personal
experience that all of the foie gras products he purchased bore a USDA mark on their
packaging to indicate that they were USDA-approved as wholesome. That Mr. Chaney
did not attach the packaging from the products does not mean that his statement “lacks
foundation” when it is based on his personal observation. Indeed, Defendant
recognizes that other declarations indicate that the actual USDA label on all foie gras
products states “Inspected for Wholesomeness.” And this is not meaningfully different
from Mr. Chaney’s testimony that all of the foie gras products he purchased were
USDA-approves as “wholesome.”
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Defendant’s objection should be OVERRULED.
9. Chaney Decl., p. 1, lines 17-20, ¶ 3
“I am aware that § 25983(b) of the California Health and Safety Code
provides that a citation issued for an alleged violation of § 25982 that could
require the payment of a penalty of up to $1,000 for each violation and for
each day the violation continues.”
Defendant’s Objection(s)
“Calls for a legal conclusion. Determining the penalties for a violation of
California Health and Safety Code section 25982 is a legal question. Sean
Chaney is not a legal expert and cannot opine on this issue. Furthermore, a
citation ‘shall require the person cited to pay a civil penalty in an amount up
to one thousand dollars ($1,000) for each violation, and up to one thousand
dollars ($1,000) for each day the violation continues.’ Cal. Health & Safety
Code§ 25983(b).”
Plaintiffs’ Response
This objection is frivolous. Mr. Cheney states his awareness of the penalty
provided in section § 25983(b) of the California Health and Safety Code, and he fairly
paraphrases that statute. This does not “call for a legal conclusion” any more than it
would for any citizen to say that he is aware of a particular statutory penalty and to
paraphrase the statute in doing so. Indeed, Defendant herself, in quoting the statute as
part of her objection, reveals that Mr. Cheney’s awareness of the penalty provision is
accurate.
Defendant’s objection should be OVERRULED.
RESPONSES TO DEFENDANT’S OBJECTIONS TO DECLARATION OF MICHAEL TENENBAUM
10. Tenenbaum Decl., p. 1, line 17 – p. 2, ln. 2, ¶ 4 & Exs. B and C
“In November 2013, I traveled to the Embassy of France in Washington,
D.C., and met with [the] Deputy Agricultural Counselor to request copies of
the documents exchanged between the USDA and the French government in
the 1980s in connection with the ‘revised’ standards for foie gras products
that France had issued in June of 1980 and had submitted to the USDA for
adoption as the requirements for approval of foie gras products in the
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United States. A true and correct copy of the relevant pages of the French
regulations reflecting the revised standards for foie gras products, which I
obtained from the French Embassy, is attached hereto as Exhibit B. A true
and correct copy of the contemporaneous English translation of those pages
from 1980, which I also obtained from the French Embassy, is attached
hereto as Exhibit C. For the Court’s ease of reference, I have highlighted the
requirements for the ‘composition’ of foie gras by placing a red box around
the relevant language. As the Court will note, the requirement states: ‘The
‘foie gras’ (livers) must exclusively come from specially crammed and
suitably bleeded geese and ducks.”
Defendant’s Objection(s)
“The declarant lacks personal knowledge, does not set forth facts that would
be admissible in evidence, and is not competent to testify on these matters.
Fed. R. Civ. P. 56(c)(4).
“Lacks foundation. The declarant has failed to set forth any facts
establishing that he has personal knowledge of these issues. Fed. R. Evid.
602. Plaintiffs’ counsel has no personal knowledge of whether these
documents were actually exchanged between the USDA and France, their
import, or whether the purported English translation was contemporaneous
or true and correct.
“Lacks authentication. These documents have not been properly
authenticated. See Fed. R. Evid. 901(a), 902(3).
“Hearsay. Fed. R. Evid. 801(c), 802. Plaintiffs’ counsel suggests these are
accurate documents by stating he requested them from the Embassy of
France. Plaintiffs’ counsel has no personal knowledge of their authenticity.
Thus, any suggestion that they are accurate is hearsay.
“Translations must be properly authenticated and shown to be made by a
qualified translator. See Fed. R. Evid. 604, 702, 901; Jack v. Trans World
Airlines, Inc., 854 F. Supp. 654, 659 (N.D. Cal. 1994). Here, there is no
indication who made the translation. Plaintiffs have failed to lay a proper
foundation for the admission of this translation.
“Irrelevant. These documents are irrelevant to the preemption question
because opinion letters, policy statements, agency manuals, and enforcement
guidelines all lack the force of law. Christensen, 529 U.S. at 587; S. Pac.
Transp. Co., 9 F.3d at 812 n.5.”
Plaintiffs’ Response
The declarant cannot be said to lack personal knowledge of his own meeting with
the Deputy Agricultural Counselor at the Embassy of France in Washington or the
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purpose of that meeting. The declarant does not purport to have personal knowledge
of the exchange of these French regulations and their contemporaneous translation
between the U.S. and French governments, but the foundation for that fact comes from
the letter from the USDA in Exhibit D to the declaration, which refers to the USDA’s
review of the “French regulations which were promulgated in June of 1980” (i.e., those
dates as such on the first page of Exhibit B).
The French regulations and their contemporaneous translation are properly
authenticated under FRE 901(b)(7)(B) and, alternatively, FRE 901(b)(8). These
constitute “a purported public record or statement [that] is from the office where items
of this kind are kept” — in other words, French agricultural regulations for foie gras
products kept in the office of the Deputy Agricultural Counselor at the Embassy of
France. Alternatively, each of these documents is properly authenticated as an
“ancient” document within the meaning of FRE 901(b)(8), since it is in a condition that
creates no suspicion about its authenticity, it was in a place where it would likely be if
authentic (i.e., a French government office charged with agricultural affairs), and “is at
least 20 years old when offered.” (It is, in fact, over 34 years old.)
Defendant’s “hearsay” objection is, as she describes it, simply an attempt to
recast her unsuccessful “authentication” objection and should be overruled for the
reasons stated immediately above. In any event, these provisions of French law are also
a proper subject of judicial notice under FRE 201 and FRCP 44.1.
Defendant’s “translation” objection should likewise be overruled. FRCP 44.1
provides that, [i]n determining foreign law, the court may consider any relevant
material or source, including testimony, whether or not . . . admissible under the
Federal Rules of Evidence.” Here, there is no reason for the Court not to consider these
documents, since Defendant has not identified any evidentiary basis for questioning the
motive of the translator back in the early 1980s — on whose translation the USDA
evidently relied. (Tenenbaum Decl. Ex. D.) The Court may properly consider this
source of foreign law.
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Finally, where, as here, the USDA’s own Food Standards and Labeling Policy
Book and its own Policy Memo (No. 76) explain that the agency’s specifications for the
required ingredients in foie gras products sold in the United States were based on the
French standards provided to the USDA in the early 1980s, those standards — as
retrieved from the French Embassy and as kept in their original form — are of course
relevant in a case where federal preemption applies to bar a State from imposing any
different or additional requirements on the “ingredients” in such poultry products.
Defendant’s objections should be OVERRULED.
11. Tenenbaum Decl., p. 2, lines 3-12, ¶ 5 & Ex. D
“During that meeting, I also obtained from the French Embassy a copy of a
letter dated May 17, 1983, from the Director of the USDA’s Standards and
Labeling Division to the French Embassy in Washington, D.C., which
followed the USDA’s ‘thorough review’ of the French regulations for the
composition of imported foie gras products and which set out the USDA’s
proposed ‘arrangement between our respective governments in regard to
these items.’ In that letter, the USDA indicated that it will ‘continue to
monitor all ‘foie gras’ products entering this country for compliance with the
French regulations’ and ‘will also continue to deny approval for any of these
products which are not in compliance with these standards.’ A true and
correct copy of this letter is attached hereto as Exhibit D.”
Defendant’s Objection(s)
“The declarant lacks personal knowledge, does not set forth facts that would
be admissible in evidence, and is not competent to testify on these matters.
Fed. R. Civ. P. 56(c)(4).
“Lacks foundation. The declarant has failed to set forth any facts
establishing that he has personal knowledge regarding this letter. Fed. R.
Evid. 602. Additionally, the letter does not specify which French regulations
were followed. It appears that the regulations related to labeling only and
even then were modified by the Standards and Labeling Division.
(Tenenbaum Decl., Ex. D.) The letter also states it was “preliminary” only.
(Id., p. 2.)
“Lacks authentication. This document has not been properly authenticated.
See Fed. R. Evid. 901(a), 902(3).
“Irrelevant. This document is irrelevant to the preemption question because
opinion letters, policy statements, agency manuals, and enforcement
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guidelines all lack the force of law and therefore cannot preempt California
law. Christensen, 529 U.S. at 587; S. Pac. Transp. Co., 9 F.3d at 812 n.5.”
Plaintiffs’ Response
The declarant cannot be said to lack personal knowledge of his having obtained
this document during his own meeting with the Deputy Agricultural Counselor at the
Embassy of France in Washington. The declarant does not purport to have personal
knowledge of the statements made by the Director of the USDA’s Standards and
Labeling Division in his letter to the French Embassy. Rather, the letter, as quoted in
part in the declaration but as attached in full, speaks for itself, and Defendant raised no
hearsay objection to it — which would have had to be overruled anyway under the
“ancient document” exception of FRE 803(16) because this document is more than 20
years old. The remainder of Defendant’s “foundation” argument is obviously an attack
on the weight of this evidence, which Defendant was free to make in her brief.
This document is properly authenticated as an “ancient” document pursuant to
FRE 901(b)(8), since it is in a condition that creates no suspicion about its authenticity,
it was in a place where it would likely be if authentic (i.e., the French Embassy to which
it was sent, which stamped the correspondence as received by its “Service Commercial”
on May 18, 1983), and “is at least 20 years old when offered.” (It is, in fact, over 31
years old.)
Finally, where a case involves federal preemption based on the ingredient
requirements promulgated by the USDA for foie gras products, a memo from the
Director of the USDA’s Standards and Labeling Division to the French Embassy
explaining that his office is “willing to follow the French regulations which were
promulgated in June of 1980” as to the ingredients in those products and that, with
only the slight modifications he outlines, this arrangement should serve as “an
agreement between our two governments,” the Director’s correspondence is
undoubtedly relevant to this action.
Defendant’s objections should be OVERRULED.
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12. Tenenbaum Decl., p. 2, lines 13-21, ¶ 6
“I am reasonably proficient in French. I have reviewed Article L654-27-1 of
France’s Code rural et de la pêche maritime (which is attached as Exhibit C
to Plaintiffs’ Request for Judicial Notice) and discussed it with several native
French speakers. That statute is most accurately translated as follows: ‘Foie
gras is a part of the protected cultural and gastronomic heritage of France.
Foie gras means the liver of a duck or of a goose specially fattened by
gavage.’ (Gavage is the practice of hand-feeding using a tube to deposit food
into the bird’s ‘crop’ or the expandable base of the bird’s esophagus, which
is used to temporarily store food prior to digestion. See, e.g., ECF Dkt. 51-9
[Fleury Decl.] at ¶ 6.).”
Defendant’s Objection(s)
Translations must be properly authenticated and shown to be made by a
qualified translator. See Fed. R. Evid. 604, 702, 901; Jack v. Trans World
Airlines, Inc., 854 F. Supp. 654, 659 (N.D. Cal. 1994). The statement that
Plaintiffs’ counsel is “reasonably proficient” in French is insufficient as it
does not describe his qualifications or expertise regarding language
translations. See Jack, 854 F. Supp. at 659. Plaintiffs have failed to lay a
proper foundation for the admission of this translation.
Plaintiffs’ Response
The declarant states that he is reasonably proficient in French to translate this
simple provision of French law, and Defendant does not identify any discrepancy in
Plaintiffs’ provided translation. Under FRCP 44.1, “[i]n determining foreign law, the
court may consider any relevant material or source, including testimony, whether or not
submitted by a party or admissible under the Federal Rules of Evidence.” In any event,
Plaintiffs have filing a declaration from a certified translator that expressly confirms the
accuracy of the declarant’s original translation. See Dkt. 137 [Declaration of an official
translator for the Superior Court of California].
Defendant’s objection should be OVERRULED.
Dated: November 10, 2014 THE TENENBAUM LAW FIRM
_________________________________
Michael Tenenbaum, Esq.
Counsel for Plaintiffs
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