Filed: Apr. 01, 2019
Latest Update: Apr. 01, 2019
Summary: NOT FOR PUBLICATION ORDER DIANE J. HUMETEWA , District Judge . Before the Court is the parties' Notice of Deposition Designations (Doc. 112). On February 26, 2019, Defendant moved for leave to take a videotaped trial deposition of Lt. Joe Tomory. (Doc. 103). Plaintiff filed a Response opposing Defendant's Motion (Doc. 105), and the Court did not permit Defendant to file a Reply. (Doc. 104). The Court granted Defendant's Motion on March 6, 2019, and ordered the deposition of Lt. Tomory to c
Summary: NOT FOR PUBLICATION ORDER DIANE J. HUMETEWA , District Judge . Before the Court is the parties' Notice of Deposition Designations (Doc. 112). On February 26, 2019, Defendant moved for leave to take a videotaped trial deposition of Lt. Joe Tomory. (Doc. 103). Plaintiff filed a Response opposing Defendant's Motion (Doc. 105), and the Court did not permit Defendant to file a Reply. (Doc. 104). The Court granted Defendant's Motion on March 6, 2019, and ordered the deposition of Lt. Tomory to co..
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NOT FOR PUBLICATION
ORDER
DIANE J. HUMETEWA, District Judge.
Before the Court is the parties' Notice of Deposition Designations (Doc. 112). On February 26, 2019, Defendant moved for leave to take a videotaped trial deposition of Lt. Joe Tomory. (Doc. 103). Plaintiff filed a Response opposing Defendant's Motion (Doc. 105), and the Court did not permit Defendant to file a Reply. (Doc. 104). The Court granted Defendant's Motion on March 6, 2019, and ordered the deposition of Lt. Tomory to commence on or before March 20, 2019, and ordered that no later than March 27, 2019, the parties shall file a notice that contained the portions of the deposition transcript each party intended to offer at trial and "[a]ll objections to the offered portions of the deposition, which shall identify by page and line number the portion to which objection is made and shall state the grounds of objection specifically;" all responses to the stated objections; and Lt. Tomory's deposition transcript. (Doc. 106 at 4) (emphasis in original)).
Plaintiff has provided general objections to Lt. Tomory's deposition. (Doc. 112 at 57). Specifically, Plaintiff claims that Lt. Tomory testified in his deposition that he was fearful of Plaintiff and this fear prompted Lt. Tomory to carry a secondary weapon while at work. (Id.) Plaintiff argues that this information was not disclosed during discovery; therefore, this Court should exclude Lt. Tomory's deposition pursuant to Federal Rule of Civil Procedure 37(c)(1). (Id.) Defendant counters that Lt. Tomory was disclosed in Defendant's Initial Disclosures, in which Defendant provided that Lt. Tomory would testify regarding any information or knowledge he had regarding Plaintiff's allegations and any meetings, conversations, interviews he had relevant to Plaintiff's complaint. (Id.) Thus, Defendant argues that the Initial Disclosure statement was broad enough to include Lt. Tomory's statements concerning his decision to carry a secondary weapon while at work. (Id.) The Court agrees. Here, Plaintiff knew that Lt. Tomory would testify as to his interactions with Plaintiff and if Plaintiff wanted to know the specifics of that potential testimony, he could have disposed Lt. Tomory during discovery. Accordingly, the Court overrules Plaintiff's general objections.
The parties filed their transcript designations, objections, and responses using a table, the Court will follow suit starting with Defendant's designations, Plaintiff's objections, and Defendant's response to Plaintiff's objections.
DEFENDANT'S PLAINTIFF'S DEFENDANT'S COURT'S
DESIGNATIONS OBJECTIONS RESPONSE RULING
5:15 to 14:18 12:20-25; 13:1 12:20-25 and 13:1 12:20-13:1
Objection: hearsay,
Rule 802; relevance Statements not hearsay Hearsay: Objection
and undue since not offered to Overruled. The
prejudice, Rules prove the truth of the testimony is being
401, 403 matter asserted but offered to show that
offered to show their Lt. Tomory intended
13:15-25 effect on Tomory, i.e., to act as a type of
Objection: his reason for reaching unofficial mentor to
relevance, undue out to Plaintiff — Rule Plaintiff. Thus, the
prejudice, Rules 801, U.S. v. Payne, 944 testimony is being
401, 403 F.2d 1458, 1472 (9th offered to show its
Cir. 1991); U.S. v. effect on Lt. Tomory
14:1-18; Lopez, 913 F.3d 807, as the listener, rather
Objection: 826 (2019). than for the truth of
relevance, undue 13:15-25; 14:1-18 the matter asserted.
prejudice, Rules Exception to hearsay Relevance: Objection
401, 403 rule — present sense Overruled. The Court
impression Rule 803(1) finds the testimony
Tomory is entitled to relevant as it concerns
testify as to his the nature of the
observations of relationship between
Plaintiff's demeanor. Lt. Tomory and
Plaintiff.
Disclosure of his
testimony was made in Undue Prejudice:
Defendant's Initial Objection Overruled.
Disclosure Statement The Court does not
on 7/7/16 which stated find any risk of undue
that he would testify pejudice.
regarding any
information or
knowledge he has
regarding Plaintiff's 13:15-14:18
allegations and any
meetings, Relevance: Objection
conversations, Overruled. The Court
interviews he had finds the testimony
relevant to Plaintiff's relevant as it concerns
complaint. Lt. Tomory's
Furthermore, the professional
following audio interactions with
recordings of meetings Plaintiff.
and transcripts of Undue Prejudice:
meetings Tomory Objection Overruled.
attended with Plaintiff The Court does not
and Finley were find any risk of undue
disclosed on 1/9/17 in prejudice.
Defendant's 5th
Supplemental
Disclosure:
December 7, 2012
(PHX002329-002330)
Finley Green
Tomory
December 10, 2012
(PHX002331-002341)
Finley Green
Tomory
December 11, 2012
(PHX002342-002343)
Finley Green
(Tomory)
December 12, 2012
(PHX002344-002353)
Finley Green
Tomory Henry
January 4 and January
15, 2013 (PHX002366-002353) Finley Green
(Tomory) Clarke
January 17, 2013 (#1)
(PHX002382-002384)
Finley Green Tomory
January 17, 2013 (#2)
(PHX002385-002391)
Finley Green Tomory
Clarke Pace
January 18, 2013
(PHX002392-002419)
Finley Green Tomory
February 1, 2013
(PHX002420-002423)
Finley Green Tomory
February 22, 2013
(PHX002424-002465)
Finley Green Tomory
March 4, 2013
(PHX002466-002468)
Finley Green (Tomory)
Henry
March 15, 2013
(PHX002469-002495)
Finley Green Tomory
Faulkner
March 22, 2013
(PHX002496-002528)
Finley Green Tomory
Leuschner
April 5, 2013
(PHX002529-002534)
Finley Green
Tomory
April 23, 2013
(PHX002535-002537)
Finley Green
Tomory
April 25, 2013
(PHX002538-002540)
Finley Green
Tomory
April 29, 2013
(PHX002541-002542)
Finley Green
Tomory
The above describes his
interactions with and
observations of
Plaintiff during the
relevant time period.
A description of
Plaintiff's behavior
does not constitute
unfair prejudice. See,
Batiz v. Am. Commer.
Sec. Servs., 776
F.Supp.2d 1087, 1092
(C.D.Cal. 2011);
United States v. Allen,
341 F.3d 870, 886 (9th
Cir. 2003). Plaintiff's
conduct, i.e., being
upset over minor issues
such as receiving an
expectations memo is
relevant to the decision
to have Plaintiff
undergo work fitness
evaluations and
ultimately transfer him
from the Robbery Unit.
15:3 starting with Objection: A description of 15:3-22
""Did..." to 15:22 relevance, undue Plaintiff's behavior
prejudice, Rules 401 does not constitute Relevance: Objection
and 403 unfair prejudice. See, Overruled. The Court
Batiz v. Am. Commer. finds the testimony
Sec. Servs., 776 relevant as it concerns
F.Supp.2d 1087, 1092 Lt. Tomory's
(C.D.Cal. 2011); professional
United States v. Allen, interactions with
341 F.3d 870, 886 (9th Plaintiff on a specific
Cir. 2003). Plaintiffs occasion.
conduct, i.e., being
upset over minor issues Undue Prejudice:
such as receiving an Objection Overruled.
expectations memo is The Court does not
relevant to the decision find any risk of undue
to have Plaintiff prejudice.
undergo work fitness
evaluations and
ultimately transfer him
from the Robbery Unit.
16:3 to 20:5 16:3-25 Plaintiffs conduct, i.e., 16:3-25
being upset over minor
issues such as receiving Relevance: Objection
Objection: an expectations memo Overruled. The Court
relevance, Rules 401 is relevant to the finds the testimony
and 403 decision to have relevant as it concerns
Plaintiff undergo work Lt. Tomory's
fitness evaluations and professional
ultimately transfer him interactions with
from the Robbery Unit. Plaintiff on a specific
occasion.
Undue Prejudice:
Objection Overruled.
The Court does not
find any risk of undue
prejudice.
20:14 to 26:2 20:14-26:2
Plaintiff does not
object; therefore, the
Court finds this
testimony may be
offered.
26:16 to 27:5 26:1-5; 26:16-25 26:1-5; 26:16-25 26:1-5
Objection: hearsay,
Rule 802; relevance, The statements not No party is offering
undue prejudice, hearsay since not 26:3-5; therefore, the
Rules 401 and 403 offered to prove the Court will not address
truth of the matters objections regarding
asserted but offered to
27: 1-5 that section.
Objection: hearsay, show their effect on Additionally, 26:1-2 is
Rule 802; relevance, Tomory, i.e., why he
undue prejudice, was sitting in on the end of answer to a
Rules 401 and 403 question. The answer
meetings between in its entirety is 25:23-26:2
Plaintiff and Lt. Finley. Thus, it appears
Rule 801. U.S. v. that Plaintiff is only
Payne, 944 F.2d 1458,
objecting to the last
1472 (9th Cir. 1991); two lines of the
U.S. v. Lopez, 913 F.3d answer. The Court
807, 826 (2019). will overrule that
objection.
There is foundation for
There is foundation for 26:16-27:5
the question. Tomory
is asked to testify as to Hearsay: Objection
his observations as to Overruled. The
whether the meetings testimony is being
which he attended kept offered to show why
the lines of Lt. Tomory attended
communication open monthly meetings
between Plaintiff and between Plaintiff and
Finley. Lt. Finley. Thus, the
testimony is being
offered to show its
effect on Lt. Tomory,
rather than for the
truth of the matter
asserted.
Relevance: Objection
Overruled. The Court
finds the testimony
relevant as it concerns
interactions between
Lt. Tomory and
Plaintiff.
Undue Prejudice:
Objection Overruled.
The Court does not
find any risk of undue
prejudice.
27:20 to 27:22 Objection: hearsay, There is foundation for 27:20-27:22
Rule 802; the question. Tomory
fountion, Rule is asked to testify as to Hearsay: Objection
602 his observations as to Overruled. The
whether the meetings question is not asking
which he attended kept Lt. Tomory to repeat
the lines of an out-of-court
communication open statement. It is simply
between Plaintiff and asking whether Lt.
Finley. Tomory's presence in
Statements not hearsay the monthly meetings
since not offered to was helpful.
prove the truth of the Relevance: Objection
matters asserted but Overruled. The Court
offered to show their finds the testimony
effect on Tomory, relevant as it concerns
why he was sitting in interactions between
on meetings between Lt. Tomory and
Plaintiff and Lt. Finley. plaintiff.
Rule 801. U.S. v.
Payne, 944 F.2d 1458, Undue Prejudice:
1472 (9th Cir. 1991); Objection Overruled.
U.S. v. Lopez, 913 F.3d The Court does not
807, 826 (2019). find any risk of undue
prejudice.
28:1 to 29:3 Objection: Tomory is testifying as 28:1-29:3
relevance, undue to his personal
prejudice, Rules 401 observations and Hearsay: Objection
and 403; hearsay, interaction with Overruled. The
Rule 802; lacks Plaintiff during majority of this
foundation, Rule monthly meetings. His testimony is not out-of-court
602 observations as to statements,
Plaintiff's behavior — rather it is Lt. Tomory
angry, emotional form recounting his
the basis for sending personal observations
Plaintiff for work and experiences at
fitness evaluations and these meetings.
ultimately his transfer
from the Robbery Unit. However, Lt. Tomory
does state at 28:23-24
Additionally, that Plaintiff was
statements by party "calling Troy a liar,
opponent are not he's unethical." Thus,
hearsay. Rule 801(d). it is an out-of-court
Statement by Plaintiff statement by Plaintiff
that he accused Finley However, this was a
of being unethical and statement made by
a liar are not offered to Plaintiff and thus is
prove such, but to not hearsay under
describe Plaintiff's 801(d)(2)(a).
conduct during those
meetings. Relevance: Objection
Overruled. The Court
Supervisor impressions finds the testimony
of Plaintiff's behavior relevant as it concerns
are relevant to the interactions between
honesty of the belief Lt. Tomory and
that Plaintiffs behavior Plaintiff.
needed to be evaluated.
Undue Prejudice:
Objection Overruled.
The Court does not
find any risk of undue
prejudice.
Lacks Foundation:
Objection Overruled.
Lt. Tomory is
describing events that
he witnessed and was
present for.
29:20 starting with Objection: Foundation is 29:20-30:23
"I'm talking..." to relevance, undue established because
30:23 prejudice, Rules 401 Tomory's testimony Hearsay: Objection
and 403; hearsay, recounts his Overruled. This
Rule 802; lacks observations of testimony is not out-of-court
foundation, Rule Plaintiff's conduct statements,
602 during meetings rather it is Lt. Tomory
between Plaintiff and recounting his
Finley at which he was personal observations
present. Additionally, and experiences at
statements by party these meetings.
opponent are not
hearsay. Rule 801(d). Relevance: Objection
Statement by Plaintiff Overruled. The Court
that he accused Finley finds the testimony
of being unethical and relevant as it concerns
a liar are not offered to interactions between
prove such, but to Lt. Tomory and
describe Plaintiff's Plaintiff.
conduct during those
meetings. Undue Prejudice:
Objection Overruled.
See, Defendant's The Court does not
disclosure on 7/7/16 find any risk of undue
and 1/9/17 listed above. prejudice.
Question is not leading
because it does not Lacks Foundation:
suggest an answer. The Objection Overruled.
question can be Lt. Tomory is
answered either "yes", describing events that
"no" or "I don't recall." he witnessed and was
If the question had present for.
been phrased "You did
take safety precautions
for yourself didn't
you?" that would have
been leading. The
question posed was not.
See, Rule 611. This
testimony describes for
the jury Tomory's
observations of
Plaintiff's conduct in
the workplace and his
interactions with
Plaintiff and its effect
on him. The testimony
is relevant because it
shows the level of
fear/anxiety Plaintiff's
conduct had on those
who interacted with
him. The testimony is
not unfairly prejudicial.
See, Rule 403.
31:1 to 32:17 up to Objection: Foundation is 29:20-30:23
"there was a relevance, undue established because
potential for that, prejudice, Rules 401 Tomory's testimony Hearsay: Objection
yes." and 403; hearsay, recounts his Overruled. This
Rule 802; lacks observations of testimony is not out-of-court
foundation, Rule Plaintiff's conduct statements,
602 during meetings rather it is Lt. Tomory
between Plaintiff and recounting his
Finley at which he was personal observations
present. and experiences at
these meetings and
See, Defendant's about the location of
disclosure on 7/7/16 Lt. Tomory's
and 1/9/17 listed above. secondary weapon.
The testimony is Relevance: Objection
relevant because it Overruled. The Court
shows the level of finds the testimony
fear/anxiety Plaintiff's relevant as it concerns
conduct had on those interactions between
who interacted with Lt. Tomory and
him. The testimony is Plaintiff.
not unfairly prejudicial.
See, Rule 403. Undue Prejudice:
Objection Overruled.
The Court does not find any risk of undue
prejudice.
Lacks Foundation:
Objection Overruled.
Lt. Tomory is
describing events that
he witnessed and was
present for.
39:23 to 40:4 39:23-25; 40:1-4 This objection is 39:23-40:4
nonsensical. This is a
Objection: question posed by This was a question
non-disclosure
relevance Plaintiff's counsel and posed to Lt. Tomory
and prejudice, Rules Tomory's response. by Plaintiff's counsel.
401 and 403; This was a deposition Prior to this
hearsay, Rule 802; in lieu of live trial deposition, all parties
lacks foundation, testimony. If counsel were aware that this
Rule 602 didn't want to hear the deposition was in lieu
answer he should not of Lt. Tomory
have asked the testifying at trial.
question. Thus, it is akin to
Plaintiff's counsel
See, Defendant's objecting to his own
disclosure on 7/7/16 question at trial. The
and 1/9/17 listed above. Court finds that
Plaintiff waived any
If Plaintiff's counsel objections to questions
didn't believe that such he asked Lt. Tomory
testimony was relevant and the answers Lt.
he should not have Tomory thereby
asked the question. provided.
Furthermore, such Nonetheless, the Court
testimony was not will address the merits
unfairly prejudicial. of Plaintiff's
See, United States v. objections.
Allen, 341 F.3d 870,
886 (9th Cir. 2003); Hearsay: Objection
Batiz v. Am. Commer. Overruled. This is not
Sec. Servs., 776 out-of-court
F.Supp.2d 1087, 1092 statements.
(C.D.Cal. 2011).
Relevance: Objection
Overruled. The Court
finds the testimony
relevant as it concerns
interactions between
Lt. Tomory and
Plaintiff.
Undue Prejudice:
Objection Overruled.
The Court does not
find any risk of undue
prejudice.
Lacks Foundation:
Objection Overruled.
Lt. Tomory is
describing events that
he witnessed and was
present for.
Nondisclosure:
Objection Overruled.
Defendant disclosed
Lt. Tomory and
provided that he
would testify as to his
"interactions with and
observations of
Plaintiff during
Plaintiff's tenure with
the PPD Robbery
Unit."
47:20 to 49:10 Objection: This objection is 47:20-49:10
non-disclosure, nonsensical. This is a
relevance
and prejudice, Rules question posed by Plaintiff waived this
401 and 403; Plaintiff's counsel and objection by agreeing
hearsay, Rule 802; Tomory's response. to include this portion
lacks foundation, This was a deposition of testimony. (See
Rule 602 in lieu of live trial Doc. 112 at 75).
testimony. If counsel
didn't want to hear the
answer he should not
have asked the
question.
See, Defendant's
disclosure on 7/7/16
and 1/9/17 listed above.
If Plaintiff's counsel
didn't believe that such
testimony was relevant
he should not have
asked the question.
Furthermore, such
testimony was not
unfairly prejudicial.
See, United States v.
Allen, 341 F.3d 870,
886 (9th Cir. 2003);
Batiz v. Am. Commer.
Sec. Servs., 776
F.Supp.2d 1087, 1092
(C.D.Cal. 2011).
The testimony is
responsive to the
question and does not
constitute hearsay.
49:16 to 49:23 49:16-23
Plaintiff does not
object; therefore, the
Court finds this
testimony may be
offered.
50:20 to 52:5 51:1-25; 52:1-5 This objection is 51:1-52:5
nonsensical. This is a
Objection: question posed by This was a question
non-disclosure,
relevance, undue Plaintiff's counsel and posed to Lt. Tomory
prejudice, Rules 401 Tomory's response. by Plaintiff's counsel.
and 403; hearsay, this was a deposition Prior to this
Rule 802; lacks in lieu of live trial deposition, all parties
testimony. If counsel were aware that this
didn't want to hear the deposition was in lieu
answer he should not of Lt. Tomory
foundation, Rule have asked the testifying at trial.
602 question. Thus, it is akin to
Plaintiff's counsel
See, Defendant's objecting to his own
disclosure on 7/7/16 question at trial. The
and 1/9/17 listed above. Court finds that
Plaintiff waived any
If Plaintiff's counsel objections to questions
didn't believe that such he asked Lt. Tomory
testimony was relevant and the answers Lt.
he should not have Tomory thereby
asked the question. provided.
Furthermore, such Nonetheless, the Court
testimony was not will address the merits
unfairly prejudicial. of Plaintiff's
See, United States v. objections.
Allen, 341 F.3d 870,
886 (9th Cir. 2003); Hearsay: Objection
Batiz v. Am. Commer. Overruled. This
Sec. Servs., 776 testimony is not out-of-court
F.Supp.2d 1087, 1092 statements.
(C.D.Cal. 2011).
Relevance: Objection
The testimony is Overruled. The Court
responsive to the finds the testimony
question and does not relevant as it concerns
constitute hearsay. interactions between
Lt. Tomory and other
officers regarding
their interactions with
Plaintiff.
Undue Prejudice:
Objection Overruled.
The Court does not
find any risk of undue
prejudice.
Lacks Foundation:
Objection Overruled.
Lt. Tomory is
describing events that
he witnessed and was
present for.
Nondisclosure:
Objection Overruled.
Defendant disclosed
Lt. Tomory and
provided that he
would testify as to his
"interactions with and
observations of
Plaintiff during
Plaintiff's tenure with
the PPD Robbery
Unit."
52:22 to 53:17 52:22-25 This objection is 52:22-25
nonsensical. Plaintiff's
Objection: counsel asked a This is two lines of an
non-disclosure, relevance question at 52:6 but answer to a question
and prejudice, Rules objected to the by Plaintiff's counsel.
401 and 403; beginning of Tomory's Prior to this
hearsay, Rule 802; answer but not the rest. deposition, all parties
lacks foundation, Completion under Rule were aware that this
Rule 602 106 requires 52:22-25 deposition was in lieu
to be admitted. of Lt. Tomory
testifying at trial.
See, Defendant's Thus, it is akin to
disclosure on 7/7/16 Plaintiff's counsel
and 1/9/17 listed above. objecting to his own
question at trial. The
If Plaintiff's counsel Court finds that
didn't believe that such Plaintiff waived any
testimony was relevant objections to questions
he should not have he asked Lt. Tomory
asked the question. and the answers Lt.
Tomory thereby
Furthermore, such provided.
testimony was not
unfairly prejudicial. Nonetheless, the Court
See, United States v. will address the merits
Allen, 341 F.3d 870, of Plaintiff's
886 (9th Cir. 2003); objections.
Batiz v. Am. Commer.
Sec. Servs., 776 Hearsay: Objection
Overruled. This is not
F.Supp.2d 1087, 1092 an out-of-court
(C.D.Cal. 2011). statement.
The testimony is Relevance: Objection
responsive to the Overruled. The Court
question and does not finds the testimony
constitute hearsay. relevant as it concerns
interactions between
Lt. Tomory and other
officers regarding
their interactions with
Plaintiff.
Undue Prejudice:
Objection Overruled.
The Court does not
find any risk of undue
prejudice.
Lacks Foundation:
Objection Overruled.
Lt. Tomory is
describing events that
he witnessed and was
present for.
Nondisclosure:
Objection Overruled.
Defendant disclosed
Lt. Tomory and
provided that he
would testify as to his
"interactions with and
observations of
Plaintiff during
Plaintiff's tenure with
the PPD Robbery
Unit."
72:9 to 73:13 72:9-72:13
Plaintiff does not
object; therefore, the
Court finds this
testimony may be
offered.
76:4 to 76:8 Objection: questions Questions of counsel 76:4-8
of counsel are not are the predicate for the
evidence answer given by Plaintiff is offering
Tomory at 76:25-77:13. 76:2-15; thus, the
If Plaintiff's counsel Court finds Plaintiff
did not want to hear the has waived this
answer he should not objection. (See Doc.
have asked the 112 at 76).
question. This was a Additionally, 76:4-8
trial deposition. is a question posed to
Lt. Tomory by
Defendant's counsel,
which Lt. Tomory
answers at 76:25-77:13
76:25 to 77:13 Objection:
non-disclosure 76:25 to 77:15 76:25-77:13
relevance
and prejudice, Rules The answer by Tomory The Court finds that
401 and 403; is in direct response to Plaintiff has waived
hearsay; Rule 802; Plaintiff's counsel's this objecting by
lacks foundation, question. Tomory was agreeing to allow this
Rule 602 asked whether he testimony to be
believed that the cause offered. (See Doc. 112
of tension between at 76).
Plaintiff and Finley was
because of issues
regarding Candice
Wilson and responded
that the issue regarding
Candice Wilson was
not the sole reason for
the tension—that there
were multiple issues. If
counsel didn't want to
hear the answer he
should not have asked
the question.
See, Defendant's
disclosure on 7/7/16
and 1/9/17 listed above.
If Plaintiff's counsel
didn't believe that such
testimony was relevant
he should not have
asked the question.
Furthermore, such
testimony was not
unfairly prejudicial.
See, United States v.
Allen, 341 F.3d 870,
886 (9th Cir. 2003);
Batiz v. Am. Commer.
Sec. Servs., 776
F.Supp.2d 1087, 1092
(C.D.Cal. 2011).
The testimony is
responsive to the
question and does not
constitute hearsay.
81:2 to 82:25 82:10-19 This objection is 82:10-19
nonsensical. This is a
Objection: hearsay, question posed by The Court finds that
Rule 801 Plaintiff's counsel and Plaintiff has waived
Tomory's response. this objecting by
This was a deposition agreeing to allow this
in lieu of live trial testimony to be
testimony. If counsel offered. (See Doc. 112
didn't want to hear the at 76).
answer he should not
have asked the
question.
Furthermore, if
Plaintiff's counsel
didn't believe that such
testimony was relevant
he should not have
asked the question.
Plaintiff's objection to
Tomory's answer
violates Rule 106.
88:7 to 88:10 88:7-88:10
Plaintiff does not
object; therefore, the
Court finds this
testimony may be
offered.
88:14 to 88:24 88:14-88:24
Plaintiff does not
object; therefore, the
Court finds this
testimony may be
offered.
89:11 to 95:6 Objection:, All of these questions 89:11-95:6
non-disclosure were asked by
relevance, undue Plaintiff's counsel in a This testimony is
prejudice, Rules 401 trial deposition. If comprised of
and 403; hearsay, counsel did not want to questions posed to Lt.
Rule 802; lacks hear the answer he Tomory by Plaintiff's
foundation, Rule should not have asked counsel. Prior to this
602 the question. Any deposition, all parties
testimony referring to were aware that this
statements made by deposition was in lieu
Plaintiff is either not of Lt. Tomory
hearsay (Rule testifying at trial.
801(d)(2)(A) as a Thus, it is akin to
statement by a party Plaintiffs counsel
opponent or is offered objecting to his own
to show their effect on question at trial. The
Tomory and the actions Court finds that
he took. Furthermore, Plaintiff waived any
such testimony was not objections to questions
unfairly prejudicial. he asked Lt. Tomory
See, United States v. and the answers Lt.
Allen, 341 F.3d 870, Tomory thereby
886 (9th Cir. 2003); provided.
Batiz v. Am. Commer.
Sec. Servs., 776 Nonetheless, the Court
F.Supp.2d 1087, 1092 will address the merits
(C.D.Cal. 2011). of Plaintiff's
objections.
See, Defendant's
disclosure on 7/7/16 Hearsay: Objection
and 1/9/17 listed above. Overruled. The initial
question is whether Lt.
If Plaintiff's counsel Tomory recorded his
didn't believe that such conversations with
testimony was relevant Plaintiff. The next
he should not have question is why Lt.
asked the question. Tomory started
recording the
Furthermore, such conversations. Lt.
testimony was not Tomory then explains
unfairly prejudicial. why he was recording
See, United States v. the conversations;
Allen, 341 F.3d 870, thus, the statements
886 (9th Cir. 2003); are not being offered
Batiz v. Am. Commer. for the truth of the
Sec. Servs., 776 matter asserted; but
F.Supp.2d 1087, 1092 rather to explain Lt.
(C.D.Cal. 2011). Tomory's state of
mind when he made
the decision to record
his conversations.
Relevance: Objection
Overruled. The Court
finds the testimony
relevant as it concerns
interactions between
Lt. Tomory and
Plaintiff.
Undue Prejudice:
Objection Overruled.
The Court does not
find any risk of undue
prejudice.
Lacks Foundation:
Objection Overruled.
Lt. Tomory is
describing events that
he witnessed and was
present for
Nondisclosure:
Objection Overruled.
Defendant disclosed
Lt. Tomory and
provided that he
would testify as to his
"interactions with and
observations of
Plaintiff during
Plaintiff's tenure with
the PPD Robbery
Unit."
107:23 to 108:2 Objection: All of these questions 107:23-108:2
non-disclosure, were asked by
relevance, undue Plaintiff's counsel in a This is a question
prejudice, Rules 401 trial deposition. If posed to Lt. Tomory
and 403; hearsay, counsel did not want to by Plaintiff's counsel.
Rule 802; lacks hear the answer he It is difficult to
foundation, Rule should not have asked understand why
602 the question. Any Plaintiff would object
testimony referring to to the introduction of
statements made by the question, but not
Plaintiff is either not object to Lt. Tomory's
hearsay (Rule answer, 108:12-109:5.
801(d)(2)(A) as a Additionally,
statement by a party prior to this
opponent or is offered deposition, all parties
to show their effect on were aware that this
Tomory and the actions deposition was in lieu
he took. of Lt. Tomory
testifying at trial.
Furthermore, such Thus, it is akin to
testimony was not Plaintiff's counsel
unfairly prejudicial. objecting to his own
See, United States v. question at trial. The
Allen, 341 F.3d 870, Court finds that
886 (9th Cir. 2003);, or Plaintiff waived any
Batiz v. Am. Commer. objections to questions
Sec. Servs., 776 he asked Lt. Tomory
and the answers Lt.
F.Supp.2d 1087, 1092 Tomory thereby
(C.D.Cal. 2011). provided.
See, Defendant's Nonetheless, the Court
disclosure on 7/7/16 will address the merits
and 1/9/17 listed above. of Plaintiff's
objections.
If Plaintiff's counsel
didn't believe that such Hearsay: Objection
testimony was relevant Overruled. This is a
he should not have question, it is not an
asked the question. out-of-court statement.
Relevance: Objection
Overruled. The Court
finds the question and
answer to be relevant
as it concerns what
information Lt.
Tomory documented
in his supervisory
notes.
Undue Prejudice:
Objection Overruled.
This is a question;
thus, the Court does
not find any risk of
undue prejudice.
Lacks Foundation:
Objection Overruled.
This is a question.
Nondisclosure:
Objection Overruled.
This is a question.
108:12 to 109:5 108:12-109:5
Plaintiff does not
object; therefore, the
Court finds this
testimony may be
offered.
110:14 to 110:17 Objection: All of these questions 110:14-17
non-disclosure, were asked by
relevance, undue Plaintiff's counsel in a This is a question
prejudice, Rules 401 trial deposition. If posed to Lt. Tomory
and 403; hearsay, counsel did not want to by Plaintiff's counsel.
Rule 802; lacks hear the answer he Prior to this
foundation, Rule should not have asked deposition, all parties
602 the question. Any were aware that this
testimony referring to deposition was in lieu
statements made by of Lt. Tomory
Plaintiff is either not testifying at trial.
hearsay (Rule Thus, it is akin to
801(d)(2)(A) as a Plaintiff's counsel
statement by a party objecting to his own
opponent. Furthermore, question at trial. The
such testimony was not Court finds that
unfairly prejudicial. Plaintiff waived any
See, United States v. objections to questions
Allen, 341 F.3d 870, he asked Lt. Tomory
88 6 (9th Cir. 2003); and the answers Lt.
Batiz v. Am. Commer. Tomory thereby
Sec. Servs., 776 provided.
F.Supp.2d 1087, 1092
(C.D.Cal. 2011). Nonetheless, the Court
will address the merits
See, Defendant's of Plaintiff's
disclosure on 7/7/16 objections.
and 1/9/17 listed above.
Hearsay: Objection
If Plaintiff's counsel Overruled. This is a
didn't believe that such question, it is not an
testimony was relevant out-of-court statement.
he should not have
asked the question. Relevance: Objection
Overruled. The Court
finds the question and
answer to be relevant.
Undue Prejudice:
Objection Overruled.
This is a question;
thus, the Court does
not find any risk of
undue prejudice.
Lacks Foundation:
Objection Overruled.
This is a question.
Nondisclosure:
Objection Overruled.
This is a question.
110:23 to 112:3 Objection: All of these questions 110:23-112:3
non-disclosure, were asked by
relevance, undue Plaintiff's counsel in a This is an answer to
prejudice, Rules 401 trial deposition. If Plaintiff's counsel's
and 403; hearsay, counsel did not want to question, 110:14-17.
Rule 802; lacks hear the answer he Prior to this
foundation, Rule should not have asked deposition, all parties
602 the question. Any were aware that this
testimony referring to deposition was in lieu
statements made by of Lt. Tomory
Plaintiff is either not testifying at trial.
hearsay (Rule Thus, it is akin to
801(d)(2)(A) as a Plaintiff's counsel
statement by a party objecting to his own
opponent. Furthermore, question at trial. The
such testimony was not Court finds that
unfairly prejudicial. Plaintiff waived any
See, United States v. objections to questions
Allen, 341 F.3d 870, he asked Lt. Tomory
886 (9th Cir. 2003); and the answers Lt.
Batiz v. Am. Commer. Tomory thereby
Sec. Servs., 776 provided.
F.Supp.2d 1087, 1092
(C.D.Cal. 2011). Nonetheless, the Court
will address the merits
See, Defendant's of Plaintiff's
disclosure on 7/7/16 objections.
and 1/9/17 listed above.
Hearsay: Objection
If Plaintiff's counsel Overruled. Lt. Tomory
didn't believe that such is explaining his state
testimony was relevant of mind at that time;
he should not have thus, it is not an out-of-court
asked the question. statement.
Relevance: Objection
Overruled. Lt. Tomory
is describing his
impressions of
Plaintiff. Therefore,
the Court finds the
answer to be relevant.
Undue Prejudice:
Objection Overruled.
The Court does not
find any risk of undue
prejudice.
Lacks Foundation:
Objection Overruled.
Lt. Tomory is
describing events that
he witnessed and was
present for.
Nondisclosure:
Objection Overruled.
Defendant disclosed
Lt. Tomory and
provided that he
would testify as to his
"interactions with and
observations of
Plaintiff during
Plaintiff's tenure with
the PPD Robbery
Unit."
The Court will now address Plaintiff's designations, Defendant's objections, and Plaintiff's response to Defendant's objections.
7:20 to 10:15 No objection None. 7:20-10:15
Defendant does not
object; therefore, the
Court finds this
testimony may be
offered.
24:20-25 No objection None. 24:20-25
Defendant does not
object; therefore, the
Court finds this
testimony may be
offered.
44:3 to 45:10 Relevance — Rule 401 None. 44:3-45:10
As to Tomory's
respect for the EEOC Relevance: Objection
Sustained. Lt.
Tomory's impressions
of the EEOC are
irrelevant. Therefore,
the Court finds 45:1-2
to be irrelevant and
this testimony is
precluded from being
introduced.
46:6 to 47:3 No objection None. 46:6-47:3
Defendant does not
object; therefore, the
Court finds this
testimony may be
offered.
49:9 to 51:15 No objection if 49:11 Agreed. 49:9-51:15
to 49:15 removed —
comments by counsel Plaintiff's counsel has
agreed not to offer:
This testimony is 49:11-15.
No objection if 50:9 relevant because it Additionally,
to 50:19 removed — demonstrates that Plaintiff's counsel has
comments by Tomory's alleged agreed to offer, for
counsel; lacks subjective fear of Sgt. completeness, 47:20-49:10.
foundation; assumes Green was not Thus,
facts not in evidence; supported by the Defendant only objects
relevance; Rule 403, objective facts. to 50:9-19. The Court
611(a), 104(b) will address
Defendant's objections
Agreed. to that testimony only.
No objection if 50:9-19
47:20-49:10 are
included for Comments by
completeness — Rule Counsel: Objection
106 Overruled. Plaintiff's
counsel is asking a
question.
Lacks Foundation:
Objection Overruled.
Lt. Tomory is
answering a question
regarding his
knowledge.
Assumes Facts Not in
Evidence: Objection
Overruled. Lt. Tomory
previously answered
that he didn't know of
Plaintiff physically
attacking anyone.
Thus, the Court finds
that there were facts
regarding the absence
of accusations of
violence in the record.
Relevance: Objection
Overruled. Whether
Lt. Tomory knew that
there had been no prior
accusations regarding
Plaintiff committing
acts of physical
violence in the
workplace is relevant.
53:18 to 55:2 No objection None. 53:18-55:2
Defendant does not
object; therefore, the
Court finds this
testimony may be
offered.
61:17 to 63:15 No objection if Agreed. 61:17-63:15
extended to 63:22 for
completeness — Rule Plaintiff has agreed to
106 also offer 63:16-22.
Thus, Defendant does
not object; therefore,
the Court finds 61:17-63:22
may be offered.
68:10-25 Hearsay — Rule 801 This testimony goes to 68:10-25
Tomory's state of
mind, is not offered for Hearsay: Objection
the truth of the Overruled. The
underlying statement question is asking
and consequently is not what Lt. Tomory
hearsay. knew; thus, the
testimony is being
offered to show Lt.
Tomory's state of
mind at that time.
72:13-18 No objection if Agreed. 72:13-18
extended to 72:22 for
completeness-Rule Plaintiff has agreed to
106 also offer 72:19-22.
Thus, Defendant does
not object; therefore,
the Court finds 72:13-22
may be offered.
76:2-15 No objection if 76:25 Agreed. 76:2-15
to 77:13 is included
for completeness— Plaintiff has agreed to
Rule 106 also offer 76:25-77:13.
Thus,
Defendant does not
object; therefore, the
Court finds 76:2-15
and 76:25-77:13 may
be offered.
77:17-21 Not relevant to any This testimony is 77:17-21
issue in this case relevant because
whether Tomory Tomory claims he Relevancy: Objection
witnessed tension witnessed conflict Overruled. The
between Green and between Sgt. Green question is asking
Saflar — Rule 401; and his peers— whether there was
Motion in Limine including Sgt. Safler. tension between
#10 (Doc 77); Order This testimony Plaintiff and fellow
regarding Motions in explains the tension. officer. Therefore, the
Limine (Doc 92) at Court finds this
page 6 lines 12-24. testimony relevant.
Defendant's MIL #10:
Objection Overruled.
The Court's Order on
Defendant's MIL #10
prevented Plaintiff
from arguing a claim
for hostile work
environment. (Doc. 92
at 6). It does not
prevent Plaintiff from
introducing evidence
that there was tension
between Plaintiff and a
fellow officer.
81:2-6 No objection if 81:7 Agreed. 81:2-6
through 82:25 is
included for Plaintiff has agreed to
completeness—Rule also offer 81:7-82:25.
106 Thus, Defendant does
not object; therefore,
83:2 to 84:17 Irrelevant as to This testimony is 83:2-84:17
relationship between relevant because it is
Faulkner and Lazelle probative of Relevancy: Objection
— Rule 401 Commander Faulkner's Overruled. Plaintiff
bias in favor of his has previsouly argued
"cousin" Lt. Jeff Lazell that as Plaintiff filed
and against Sgt. Green, an EEOC charge
whom Sgt. Green against Lt. Jeff Lazell
previously filed an in 2009. Plaintiff
EEOC Charge against. argued that due to the
close relationship
between Lt. Lazell and
Commander Faulkner,
Commander
Faulkner—who was in
charge of the Robbery
Unit—retaliated
against Plaintiff to get
back at him for filing
an EEOC charge
against Lt. Lazell.
Thus, this Court finds
the relationship
between Lt. Lazell
and Commander
Faulkner to be
relevant.
87:23 to 88:24 No objection None. 87:23-88:24
Defendant does not
object; therefore, the
Court finds this
testimony may be
offered.
100:16 to 104:25 No objection if 103:4 Agreed. 100:16-104:25
to 103:17 removed
and deposition Ex. 1 Plaintiff has agreed not
is stipulated into to offer 103:4-17.
Thus, Defendant does
evidence not object; therefore,
the Court finds
100:16-103:3 and
103:18-104:25 may be
offered. Additionally,
the parties have
stipulated to enter
deposition Ex. 1 into
evidence.
113:6-14 Objection — This is relevant 113:6-14
relevance; hearsay; because it is probative
lacks foundation; of Commander Argumentative:
calls for speculation; Faulkner's bias in Objection Sustained.
form; argumentative favor of his cousin Lt. Plaintiff's counsels
— Rules 401, 801, Jeff Lazell and against question summarizes
602, 701, 403, 611 Sgt. Green, whom Jeff his interpretation of
filed an EEOC Charge the evidence and
of Discrimination recites facts.
against. Defendant's counsel
objected during the
deposition on
argumentative
grounds, and
Plaintiff's counsel
choose not to rephrase
the question at that
time. Thus, the Court
finds 113:6-14 to be
argumentative and this
testimony is precluded
from being introduced.
114:9-17 Hearsay — Rule 801 Commander Faulkner's 114:9-17
statements are a
statement by an "agent The Court has
of a party opponent" excluded the question
under Fed. R. Evid. which this testimony is
801 (d)(2)(D) and an answer to;
consequently are not therefore, this
hearsay by definition. testimony is also
excluded.
115:1-10 Hearsay — Rule 801 Withdrawn. 115:1-10
Plaintiff has agreed not
to offer this testimony.
Accordingly,
IT IS ORDERED that the following portions of Lt. Tomory's Deposition can be offered at trial: 5:15-14:18; 15:3-15:22; 16:03-20:5; 20:14-26:2; 24:20-25; 26:16-27:5; 27:20-22; 28:1-29:3; 29:20-30:23; 31:1-32:17; 39:23-40:4; 44:3-25; 45:3-10; 46:6-47:3; 47:20-49:10; 49:16-52:5; 52:22-55:2; 61:17-63:22; 68:10-25; 72:9-73:13; 76:2-15; 76:25-77:13; 77:17-21; 81:2-82:25; 83:2-84:17; 87:23-88:24; 89:11-95:6; 100:16-103:3; 103:18-104:25; 107:23-108:2; 108:12-109:5; 110:14-17; and 110:23-112:3.
