Unpublished Disposition, 867 F.2d 612 (9th Cir. 1989)

MEMORANDUM^** 

After Teamsters Local 70 unsuccessfully attempted to obtain redress of appellants' grievances at a Grievance Committee hearing, appellants sued Local 70 pursuant to Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (1982), claiming a breach of the duty of fair representation. Local 70 prevailed at trial. Appellants now appeal on the ground that the district court erred in admitting into evidence defendant's Exhibit E, a document upon which the employer had relied at the Grievance Committee hearing.

Appellants make the claim that: (1) Exhibit E was inadmissible hearsay and its admission was not justified by Federal Rules of Evidence 803(6) and 803(24); (2) its prejudicial impact outweighed its probative value in violation of Federal Rule of Evidence 403; and (3) the document was never authenticated. We review a district court's admission of evidence over a hearsay objection for abuse of discretion. United States v. Perlmuter, 693 F.2d 1290, 1293 (9th Cir. 1982). A district court's balancing of the probative value of the evidence against its prejudicial harm under Rule 403 is also reviewed for an abuse of discretion. United States v. Rubio, 727 F.2d 786, 798 (9th Cir. 1984).

When Local 70 introduced Exhibit E at trial, appellants' counsel objected solely on the grounds that he had not previously been notified of the existence of the exhibit and the exhibit did not "meet and fit the requirement of the business records [exception to the] hearsay rule." Excerpt of Record (ER) at 11-12. The district court determined that Exhibit E had not been offered into evidence to prove the truth of the matter asserted and so instructed the jury. ER at 12. Appellants seem to recognize this in their briefs, Appellant's Opening Brief at 12-13; Appellants' Reply Brief at 1-2, 5, as they did in their closing argument to the jury. Reporter's Transcript (RT) at 466-67. As Exhibit E was not hearsay evidence, the requirements of Rule 803(6) and Rule 803(24)¹  are inapplicable and the district court did not abuse its discretion in admitting Exhibit E over appellants' hearsay objections.

Appellants' contention that Exhibit E should have been excluded under Rule 403 is also without merit. First, appellants failed to object to the evidence on that ground when the exhibit was offered. The district judge had no obligation to exclude evidence under Rule 403 sua sponte. See 22 Wright & Graham, Federal Practice & Procedure Sec. 5224 (1978). Second, even if appellant had made a timely objection, we could not conclude that the district court abused its discretion in admitting the evidence. Exhibit E was highly relevant to showing Local 70's efforts on behalf of appellants at the Grievance Committee Hearing. Any prejudicial effect was mitigated by the district court's instruction immediately after the introduction of the evidence that the exhibit was not being offered for its truth. ER at 15.

Finally, appellants' contention that the exhibit was not authenticated is totally devoid of merit. Counsel did not object to the introduction of the exhibit on that basis. Nor could he well have done so. Mr. Ernest Frietas, the business agent for Local 70, testified that Exhibit E was the document which had been presented by the employer at the grievance hearing and which constituted the principal exhibit he had to overcome in representing appellants at that hearing. RT at 390-97. This testimony authenticated the statement for the purpose for which it was presented at trial.

AFFIRMED.