Green v. Phoenix, City of

Filing 116

ORDER re: 112 Notice of Deposition Designations. Signed by Judge Diane J Humetewa on 4/1/2019. (See Order for details.) (LFIG)

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WO

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NOT FOR PUBLICATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jeffrey Green,
Plaintiff,

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ORDER

v.

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No. CV-15-02570-PHX-DJH

City of Phoenix, et al.,

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Defendant.

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Before the Court is the parties’ Notice of Deposition Designations (Doc. 112). On

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February 26, 2019, Defendant moved for leave to take a videotaped trial deposition of Lt.

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Joe Tomory. (Doc. 103). Plaintiff filed a Response opposing Defendant’s Motion

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(Doc. 105), and the Court did not permit Defendant to file a Reply. (Doc. 104). The Court

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granted Defendant’s Motion on March 6, 2019, and ordered the deposition of Lt. Tomory

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to commence on or before March 20, 2019, and ordered that no later than March 27, 2019,

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the parties shall file a notice that contained the portions of the deposition transcript each

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party intended to offer at trial and “[a]ll objections to the offered portions of the deposition,

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which shall identify by page and line number the portion to which objection is made and

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shall state the grounds of objection specifically;” all responses to the stated objections; and

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Lt. Tomory’s deposition transcript. (Doc. 106 at 4) (emphasis in original)).

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Plaintiff has provided general objections to Lt. Tomory’s deposition.

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(Doc. 112 at 57). Specifically, Plaintiff claims that Lt. Tomory testified in his deposition

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that he was fearful of Plaintiff and this fear prompted Lt. Tomory to carry a secondary

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weapon while at work. (Id.) Plaintiff argues that this information was not disclosed during

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discovery; therefore, this Court should exclude Lt. Tomory’s deposition pursuant to

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Federal Rule of Civil Procedure 37(c)(1). (Id.) Defendant counters that Lt. Tomory was

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disclosed in Defendant’s Initial Disclosures, in which Defendant provided that Lt. Tomory

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would testify regarding any information or knowledge he had regarding Plaintiff’s

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allegations and any meetings, conversations, interviews he had relevant to Plaintiff’s

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complaint. (Id.) Thus, Defendant argues that the Initial Disclosure statement was broad

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enough to include Lt. Tomory’s statements concerning his decision to carry a secondary

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weapon while at work. (Id.) The Court agrees. Here, Plaintiff knew that Lt. Tomory

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would testify as to his interactions with Plaintiff and if Plaintiff wanted to know the

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specifics of that potential testimony, he could have disposed Lt. Tomory during discovery.

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Accordingly, the Court overrules Plaintiff’s general objections.

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The parties filed their transcript designations, objections, and responses using a

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table, the Court will follow suit starting with Defendant’s designations, Plaintiff’s

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objections, and Defendant’s response to Plaintiff’s objections.

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DEFENDANT’S
DESIGNATIONS
5:15 to 14:18

PLAINTIFF’S
OBJECTIONS
12:20-25; 13:1
Objection: hearsay,
Rule 802; relevance
and undue
prejudice, Rules
401, 403

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13:15-25
Objection:
relevance, undue
prejudice, Rules
401, 403
14:1-18;
Objection:
relevance, undue

DEFENDANT’S
RESPONSE

COURT’S
RULING

12:20-25 and 13:1

12:20–13:1

Statements not hearsay
since not offered to
prove the truth of the
matter asserted but
offered to show their
effect on Tomory, i.e.,
his reason for reaching
out to Plaintiff – Rule
801, U.S. v. Payne, 944
F.2d 1458, 1472 (9th
Cir. 1991); U.S. v.
Lopez, 913 F.3d 807,
826 (2019).

Hearsay: Objection
Overruled. The
testimony is being
offered to show that
Lt. Tomory intended
to act as a type of
unofficial mentor to
Plaintiff. Thus, the
testimony is being
offered to show its
effect on Lt. Tomory
as the listener, rather
than for the truth of
the matter asserted.

13:15-25; 14:1-18

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DEFENDANT’S
DESIGNATIONS

PLAINTIFF’S
OBJECTIONS
prejudice, Rules
401, 403

DEFENDANT’S
RESPONSE
Exception to hearsay
rule – present sense
impression Rule 803(1)
Tomory is entitled to
testify as to his
observations of
Plaintiff’s demeanor.
Disclosure of his
testimony was made in
Defendant’s Initial
Disclosure Statement
on 7/7/16 which stated
that he would testify
regarding any
information or
knowledge he has
regarding Plaintiff’s
allegations and any
meetings,
conversations,
interviews he had
relevant to Plaintiff’s
complaint.
Furthermore, the
following audio
recordings of meetings
and transcripts of
meetings Tomory
attended with Plaintiff
and Finley were
disclosed on 1/9/17 in
Defendant’s 5th
Supplemental
Disclosure:
December 7, 2012
(PHX002329 –
002330) Finley Green
Tomory
December 10, 2012
(PHX002331 –
002341) Finley Green
Tomory

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COURT’S
RULING
Relevance: Objection
Overruled. The Court
finds the testimony
relevant as it concerns
the nature of the
relationship between
Lt. Tomory and
Plaintiff.
Undue Prejudice:
Objection Overruled.
The Court does not
find any risk of undue
prejudice.

13:15–14:18
Relevance: Objection
Overruled. The Court
finds the testimony
relevant as it concerns
Lt. Tomory’s
professional
interactions with
Plaintiff.
Undue Prejudice:
Objection Overruled.
The Court does not
find any risk of undue
prejudice.

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DEFENDANT’S
DESIGNATIONS

PLAINTIFF’S
OBJECTIONS

DEFENDANT’S
RESPONSE
December 11, 2012
(PHX002342 –
002343) Finley Green
(Tomory)
December 12, 2012
(PHX002344 –
002353) Finley Green
Tomory Henry
January 4 and January
15, 2013 (PHX002366
- 002381) 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

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March 15, 2013
(PHX002469 - 002495)
Finley Green Tomory
Faulkner

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March 22, 2013
(PHX002496 - 002528)

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COURT’S
RULING

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DEFENDANT’S
DESIGNATIONS

PLAINTIFF’S
OBJECTIONS

DEFENDANT’S
RESPONSE
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

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COURT’S
RULING

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PLAINTIFF’S
OBJECTIONS

DEFENDANT’S
RESPONSE
ultimately transfer him
from the Robbery Unit.

15:3 starting with
“”Did…” to 15:22

Objection:
relevance, undue
prejudice, Rules 401
and 403

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.

15:3–22

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.

16:3–25

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16:3 to 20:5

16:3-25

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COURT’S
RULING

DEFENDANT’S
DESIGNATIONS

Objection:
relevance, Rules 401
and 403

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Relevance: Objection
Overruled. The Court
finds the testimony
relevant as it concerns
Lt. Tomory’s
professional
interactions with
Plaintiff on a specific
occasion.
Undue Prejudice:
Objection Overruled.
The Court does not
find any risk of undue
prejudice.

Relevance: Objection
Overruled. The Court
finds the testimony
relevant as it concerns
Lt. Tomory’s
professional
interactions with
Plaintiff on a specific
occasion.
Undue Prejudice:
Objection Overruled.
The Court does not
find any risk of undue
prejudice.

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DEFENDANT’S
DESIGNATIONS

PLAINTIFF’S
OBJECTIONS

DEFENDANT’S
RESPONSE

20:14 to 26:2

COURT’S
RULING
20:14–26:2
Plaintiff does not
object; therefore, the
Court finds this
testimony may be
offered.

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26:16 to 27:5

26:1-5; 26:16-25
Objection: hearsay,
Rule 802; relevance,
undue prejudice,
Rules 401 and 403
27:1-5
Objection: hearsay,
Rule 802; relevance,
undue prejudice,
Rules 401 and 403

26:1-5; 26:16-25

26:1–5

The statements not
hearsay since not
offered to prove the
truth of the matters
asserted but offered to
show their effect on
Tomory, i.e., why he
was sitting in on
meetings between
Plaintiff and Lt. Finley.
Rule 801. U.S. v.
Payne, 944 F.2d 1458,
1472 (9th Cir. 1991);
U.S. v. Lopez, 913 F.3d
807, 826 (2019).

No party is offering
26:3-5; therefore, the
Court will not address
objections regarding
that section.
Additionally, 26:1-2 is
the end of answer to a
question. The answer
in its entirety is 25:2326:2. Thus, it appears
that Plaintiff is only
objecting to the last
two lines of the
answer. The Court
will overrule that
objection.

There is foundation for
the question. Tomory
is asked to testify as to
his observations as to
whether the meetings
which he attended kept
the lines of
communication open
between Plaintiff and
Finley.

26:16–27:5

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Hearsay: Objection
Overruled. The
testimony is being
offered to show why
Lt. Tomory attended
monthly meetings
between Plaintiff and
Lt. Finley. Thus, the
testimony is being
offered to show its
effect on Lt. Tomory,
rather than for the
truth of the matter
asserted.

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DEFENDANT’S
DESIGNATIONS

PLAINTIFF’S
OBJECTIONS

DEFENDANT’S
RESPONSE

Relevance: Objection
Overruled. The Court
finds the testimony
relevant as it concerns
interactions between
Lt. Tomory and
Plaintiff.

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Undue Prejudice:
Objection Overruled.
The Court does not
find any risk of undue
prejudice.

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COURT’S
RULING

27:20 to 27:22

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Objection: hearsay,
Rule 802;
foundation, Rule
602

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There is foundation for
the question. Tomory
is asked to testify as to
his observations as to
whether the meetings
which he attended kept
the lines of
communication open
between Plaintiff and
Finley.
Statements not hearsay
since not offered to
prove the truth of the
matters asserted but
offered to show their
effect on Tomory, i.e.,
why he was sitting in
on meetings between
Plaintiff and Lt. Finley.
Rule 801. U.S. v.
Payne, 944 F.2d 1458,
1472 (9th Cir. 1991);
U.S. v. Lopez, 913 F.3d
807, 826 (2019).

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27:20–27:22
Hearsay: Objection
Overruled. The
question is not asking
Lt. Tomory to repeat
an out-of-court
statement. It is simply
asking whether Lt.
Tomory’s presence in
the monthly meetings
was helpful.
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.

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28:1 to 29:3

Objection:
relevance, undue
prejudice, Rules 401
and 403; hearsay,

Tomory is testifying as
to his personal
observations and
interaction with

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28:1–29:3
Hearsay: Objection
Overruled. The

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DEFENDANT’S
DESIGNATIONS

PLAINTIFF’S
OBJECTIONS
Rule 802; lacks
foundation, Rule
602

DEFENDANT’S
RESPONSE
Plaintiff during
monthly meetings. His
observations as to
Plaintiff’s behavior - angry, emotional form
the basis for sending
Plaintiff for work
fitness evaluations and
ultimately his transfer
from the Robbery Unit.
Additionally,
statements by party
opponent are not
hearsay. Rule 801(d).
Statement by Plaintiff
that he accused Finley
of being unethical and
a liar are not offered to
prove such, but to
describe Plaintiff’s
conduct during those
meetings.

COURT’S
RULING
majority of this
testimony is not outof-court statements,
rather it is Lt. Tomory
recounting his
personal observations
and experiences at
these meetings.
However, Lt. Tomory
does state at 28:23-24
that Plaintiff was
“calling Troy a liar,
he’s unethical.” Thus,
it is an out-of-court
statement by Plaintiff.
However, this was a
statement made by
Plaintiff and thus is
not hearsay under
801(d)(2)(a).

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 Plaintiff’s 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.

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DEFENDANT’S
DESIGNATIONS

PLAINTIFF’S
OBJECTIONS

DEFENDANT’S
RESPONSE

29:20 starting with
“I’m talking…” to
30:23

Objection:
relevance, undue
prejudice, Rules 401
and 403; hearsay,
Rule 802; lacks
foundation, Rule
602

Foundation is
established because
Tomory’s testimony
recounts his
observations of
Plaintiff’s conduct
during meetings
between Plaintiff and
Finley at which he was
present. Additionally,
statements by party
opponent are not
hearsay. Rule 801(d).
Statement by Plaintiff
that he accused Finley
of being unethical and
a liar are not offered to
prove such, but to
describe Plaintiff’s
conduct during those
meetings.

COURT’S
RULING
29:20–30:23
Hearsay: Objection
Overruled. This
testimony is not outof-court statements,
rather it is Lt. Tomory
recounting his
personal observations
and experiences at
these meetings.
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
See, Defendant’s
find any risk of undue
disclosure on 7/7/16
and 1/9/17 listed above. prejudice.
Question is not leading
because it does not
suggest an answer. The
question can be
answered either “yes”,
“no” or “I don’t recall.”
If the question had
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

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Lacks Foundation:
Objection Overruled.
Lt. Tomory is
describing events that
he witnessed and was
present for.

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PLAINTIFF’S
OBJECTIONS

DEFENDANT’S
RESPONSE
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
“there was a
potential for that,
yes.”

Objection:
relevance, undue
prejudice, Rules 401
and 403; hearsay,
Rule 802; lacks
foundation, Rule
602

Foundation is
established because
Tomory’s testimony
recounts his
observations of
Plaintiff’s conduct
during meetings
between Plaintiff and
Finley at which he was
present.

29:20–30:23

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.

Relevance: Objection
Overruled. The Court
finds the testimony
relevant as it concerns
interactions between
Lt. Tomory and
Plaintiff.

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COURT’S
RULING

DEFENDANT’S
DESIGNATIONS

Hearsay: Objection
Overruled. This
testimony is not outof-court statements,
rather it is Lt. Tomory
recounting his
personal observations
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.

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Undue Prejudice:
Objection Overruled.
The Court does not
find any risk of undue
prejudice.
Lacks Foundation:
Objection Overruled.
Lt. Tomory is

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DEFENDANT’S
DESIGNATIONS

PLAINTIFF’S
OBJECTIONS

DEFENDANT’S
RESPONSE

describing events that
he witnessed and was
present for.

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COURT’S
RULING

39:23 to 40:4

39:23-25; 40:1-4

This objection is
nonsensical. This is a
Objection: nonquestion posed by
disclosure, relevance Plaintiff’s counsel and
and prejudice, Rules Tomory’s response.
401 and 403;
This was a deposition
hearsay, Rule 802;
in lieu of live trial
lacks foundation,
testimony. If counsel
Rule 602
didn’t want to hear the
answer he should not
have asked the
question.

39:23–40:4

This was a question
posed to Lt. Tomory
by Plaintiff’s counsel.
Prior to this
deposition, all parties
were aware that this
deposition was in lieu
of Lt. Tomory
testifying at trial.
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
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).

Nonetheless, the Court
will address the merits
of Plaintiff’s
objections.
Hearsay: Objection
Overruled. This is not
out-of-court
statements.
Relevance: Objection
Overruled. The Court
finds the testimony
relevant as it concerns
interactions between

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DEFENDANT’S
DESIGNATIONS

PLAINTIFF’S
OBJECTIONS

DEFENDANT’S
RESPONSE

Lt. Tomory and
Plaintiff.

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Undue Prejudice:
Objection Overruled.
The Court does not
find any risk of undue
prejudice.

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Lacks Foundation:
Objection Overruled.
Lt. Tomory is
describing events that
he witnessed and was
present for.

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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.”

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COURT’S
RULING

47:20 to 49:10

Objection: nondisclosure, relevance
and prejudice, Rules
401 and 403;
hearsay, Rule 802;
lacks foundation,
Rule 602

This objection is
nonsensical. This is a
question posed by
Plaintiff’s counsel and
Tomory’s response.
This was a deposition
in lieu of live trial
testimony. If counsel
didn’t want to hear the
answer he should not
have asked the
question.

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47:20–49:10
Plaintiff waived this
objection by agreeing
to include this portion
of testimony. (See
Doc. 112 at 75).

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DEFENDANT’S
DESIGNATIONS

PLAINTIFF’S
OBJECTIONS

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4

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8

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).

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The testimony is
responsive to the
question and does not
constitute hearsay.

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49:16 to 49:23

49:16–23

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Plaintiff does not
object; therefore, the
Court finds this
testimony may be
offered.

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COURT’S
RULING

If Plaintiff’s counsel
didn’t believe that such
testimony was relevant
he should not have
asked the question.

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DEFENDANT’S
RESPONSE
See, Defendant’s
disclosure on 7/7/16
and 1/9/17 listed above.

50:20 to 52:5

51:1-25; 52:1-5
Objection: nondisclosure,
relevance, undue
prejudice, Rules 401
and 403; hearsay,
Rule 802; lacks

This objection is
nonsensical. This is a
question posed by
Plaintiff’s counsel and
Tomory’s response.
This was a deposition
in lieu of live trial
testimony. If counsel
didn’t want to hear the
answer he should not

- 14 -

51:1–52:5
This was a question
posed to Lt. Tomory
by Plaintiff’s counsel.
Prior to this
deposition, all parties
were aware that this
deposition was in lieu
of Lt. Tomory

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15

DEFENDANT’S
DESIGNATIONS

PLAINTIFF’S
OBJECTIONS
foundation, Rule
602

DEFENDANT’S
RESPONSE
have asked the
question.

COURT’S
RULING

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).

Nonetheless, the Court
will address the merits
of Plaintiff’s
objections.

testifying at trial.
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.

16
17
18

The testimony is
responsive to the
question and does not
constitute hearsay.

19
20
21

Hearsay: Objection
Overruled. This
testimony is not outof-court statements.
Relevance: Objection
Overruled. The Court
finds the testimony
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.

22
23
24
25

Lacks Foundation:
Objection Overruled.
Lt. Tomory is
describing events that
he witnessed and was
present for.

26
27
28

- 15 -

1
2

DEFENDANT’S
DESIGNATIONS

PLAINTIFF’S
OBJECTIONS

DEFENDANT’S
RESPONSE

COURT’S
RULING
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.”

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

52:22 to 53:17

52:22-25

This objection is
nonsensical. Plaintiff’s
Objection: noncounsel asked a
disclosure, relevance question at 52:6 but
and prejudice, Rules objected to the
401 and 403;
beginning of Tomory’s
hearsay, Rule 802;
answer but not the rest.
lacks foundation,
Completion under Rule
Rule 602
106 requires 52:22-25
to be admitted.

52:22–25

This is two lines of an
answer to a question
by Plaintiff’s counsel.
Prior to this
deposition, all parties
were aware that this
deposition was in lieu
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

- 16 -

1
2

DEFENDANT’S
DESIGNATIONS

3
4

PLAINTIFF’S
OBJECTIONS

DEFENDANT’S
RESPONSE
F.Supp.2d 1087, 1092
(C.D.Cal. 2011).
The testimony is
responsive to the
question and does not
constitute hearsay.

5
6
7
8
9
10

an out-of-court
statement.
Relevance: Objection
Overruled. The Court
finds the testimony
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.

11
12
13

Lacks Foundation:
Objection Overruled.
Lt. Tomory is
describing events that
he witnessed and was
present for.

14
15
16
17

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.”

18
19
20
21
22
23
24
25

COURT’S
RULING

72:9 to 73:13

72:9–72:13

26

Plaintiff does not
object; therefore, the
Court finds this

27
28

- 17 -

1
2

DEFENDANT’S
DESIGNATIONS

PLAINTIFF’S
OBJECTIONS

DEFENDANT’S
RESPONSE

testimony may be
offered.

3
4

76:4 to 76:8

5
6
7
8
9
10

Objection: questions Questions of counsel
of counsel are not
are the predicate for the
evidence
answer given by
Tomory at 76:25-77:13.
If Plaintiff’s counsel
did not want to hear the
answer he should not
have asked the
question. This was a
trial deposition.

76:4–8

Objection: nondisclosure, relevance
and prejudice, Rules
401 and 403;
hearsay; Rule 802;
lacks foundation,
Rule 602

76:25 to 77:15

76:25–77:13

The answer by Tomory
is in direct response to
Plaintiff’s counsel’s
question. Tomory was
asked whether he
believed that the cause
of tension between
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.

The Court finds that
Plaintiff has waived
this objecting by
agreeing to allow this
testimony to be
offered. (See Doc. 112
at 76).

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

COURT’S
RULING

76:25 to 77:13

28

- 18 -

Plaintiff is offering
76:2–15; thus, the
Court finds Plaintiff
has waived this
objection. (See Doc.
112 at 76).
Additionally, 76:4–8
is a question posed to
Lt. Tomory by
Defendant’s counsel,
which Lt. Tomory
answers at 76:25–
77:13.

1
2

DEFENDANT’S
DESIGNATIONS

PLAINTIFF’S
OBJECTIONS

3
4

6
7
8

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).

9
10
11
12
13
14

The testimony is
responsive to the
question and does not
constitute hearsay.

15
16
17

19
20
21
22
23
24
25
26
27
28

COURT’S
RULING

If Plaintiff’s counsel
didn’t believe that such
testimony was relevant
he should not have
asked the question.

5

18

DEFENDANT’S
RESPONSE
See, Defendant’s
disclosure on 7/7/16
and 1/9/17 listed above.

81:2 to 82:25

82:10-19
Objection: hearsay,
Rule 801

This objection is
nonsensical. This is a
question posed by
Plaintiff’s counsel and
Tomory’s response.
This was a deposition
in lieu of live trial
testimony. If counsel
didn’t want to hear the
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.

- 19 -

82:10–19
The Court finds that
Plaintiff has waived
this objecting by
agreeing to allow this
testimony to be
offered. (See Doc. 112
at 76).

1
2

DEFENDANT’S
DESIGNATIONS

PLAINTIFF’S
OBJECTIONS

3
4

DEFENDANT’S
RESPONSE
Plaintiff’s objection to
Tomory’s answer
violates Rule 106.

88:7 to 88:10

COURT’S
RULING

88:7–88:10

5
Plaintiff does not
object; therefore, the
Court finds this
testimony may be
offered.

6
7
8
9

88:14 to 88:24

88:14–88:24

10
Plaintiff does not
object; therefore, the
Court finds this
testimony may be
offered.

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

89:11 to 95:6

Objection: nondisclosure,
relevance, undue
prejudice, Rules 401
and 403; hearsay,
Rule 802; lacks
foundation, Rule
602

All of these questions
were asked by
Plaintiff’s counsel in a
trial deposition. If
counsel did not want to
hear the answer he
should not have asked
the question. Any
testimony referring to
statements made by
Plaintiff is either not
hearsay (Rule
801(d)(2)(A) as a
statement by a party
opponent or is offered
to show their effect on
Tomory and the actions
he took. Furthermore,
such testimony was not
unfairly prejudicial.
See, United States v.
Allen, 341 F.3d 870,
886 (9th Cir. 2003);
Batiz v. Am. Commer.

- 20 -

89:11–95:6
This testimony is
comprised of
questions posed to Lt.
Tomory by Plaintiff’s
counsel. Prior to this
deposition, all parties
were aware that this
deposition was in lieu
of Lt. Tomory
testifying at trial.
Thus, it is akin to
Plaintiff’s counsel
objecting to his own
question at trial. The
Court finds that
Plaintiff waived any
objections to questions
he asked Lt. Tomory
and the answers Lt.
Tomory thereby
provided.

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18

DEFENDANT’S
DESIGNATIONS

PLAINTIFF’S
OBJECTIONS

DEFENDANT’S
RESPONSE
Sec. Servs., 776
F.Supp.2d 1087, 1092
(C.D.Cal. 2011).

COURT’S
RULING
Nonetheless, the Court
will address the merits
of Plaintiff’s
objections.

See, Defendant’s
Hearsay: Objection
disclosure on 7/7/16
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.

19

Relevance: Objection
Overruled. The Court
finds the testimony
relevant as it concerns
interactions between
Lt. Tomory and
Plaintiff.

20
21
22
23

Undue Prejudice:
Objection Overruled.
The Court does not
find any risk of undue
prejudice.

24
25
26
27

Lacks Foundation:
Objection Overruled.
Lt. Tomory is

28

- 21 -

1
2

DEFENDANT’S
DESIGNATIONS

PLAINTIFF’S
OBJECTIONS

DEFENDANT’S
RESPONSE

COURT’S
RULING
describing events that
he witnessed and was
present for.

3
4

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.”

5
6
7
8
9
10
11
12
107:23 to 108:2

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Objection: nondisclosure,
relevance, undue
prejudice, Rules 401
and 403; hearsay,
Rule 802; lacks
foundation, Rule
602

All of these questions
were asked by
Plaintiff’s counsel in a
trial deposition. If
counsel did not want to
hear the answer he
should not have asked
the question. Any
testimony referring to
statements made by
Plaintiff is either not
hearsay (Rule
801(d)(2)(A) as a
statement by a party
opponent or is offered
to show their effect on
Tomory and the actions
he took.
Furthermore, such
testimony was not
unfairly prejudicial.
See, United States v.
Allen, 341 F.3d 870,
886 (9th Cir. 2003); , or
Batiz v. Am. Commer.
Sec. Servs., 776

- 22 -

107:23–108:2
This is a question
posed to Lt. Tomory
by Plaintiff’s counsel.
It is difficult to
understand why
Plaintiff would object
to the introduction of
the question, but not
object to Lt. Tomory’s
answer, 108:12–
109:5. Additionally,
prior to this
deposition, all parties
were aware that this
deposition was in lieu
of Lt. Tomory
testifying at trial.
Thus, it is akin to
Plaintiff’s counsel
objecting to his own
question at trial. The
Court finds that
Plaintiff waived any
objections to questions
he asked Lt. Tomory
and the answers Lt.

1
2

DEFENDANT’S
DESIGNATIONS

3
4

PLAINTIFF’S
OBJECTIONS

DEFENDANT’S
RESPONSE
F.Supp.2d 1087, 1092
(C.D.Cal. 2011).

Tomory thereby
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
question, it is not an
he should not have
out-of-court statement.
asked the question.

5
6
7
8
9
10

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.

11
12
13
14
15

Undue Prejudice:
Objection Overruled.
This is a question;
thus, the Court does
not find any risk of
undue prejudice.

16
17
18
19

Lacks Foundation:
Objection Overruled.
This is a question.

20
21

Nondisclosure:
Objection Overruled.
This is a question.

22
23
24

COURT’S
RULING

108:12 to 109:5

108:12–109:5

25
Plaintiff does not
object; therefore, the
Court finds this
testimony may be
offered.

26
27
28

- 23 -

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16

DEFENDANT’S
DESIGNATIONS
110:14 to 110:17

PLAINTIFF’S
OBJECTIONS

DEFENDANT’S
RESPONSE

Objection: nondisclosure,
relevance, undue
prejudice, Rules 401
and 403; hearsay,
Rule 802; lacks
foundation, Rule
602

All of these questions
were asked by
Plaintiff’s counsel in a
trial deposition. If
counsel did not want to
hear the answer he
should not have asked
the question. Any
testimony referring to
statements made by
Plaintiff is either not
hearsay (Rule
801(d)(2)(A) as a
statement by a party
opponent. 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).

17
18
19
20
21
22

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.

23
24
25

COURT’S
RULING
110:14–17
This is a question
posed to Lt. Tomory
by Plaintiff’s counsel.
Prior to this
deposition, all parties
were aware that this
deposition was in lieu
of Lt. Tomory
testifying at trial.
Thus, it is akin to
Plaintiff’s counsel
objecting to his own
question at trial. The
Court finds that
Plaintiff waived any
objections to questions
he asked Lt. Tomory
and the answers Lt.
Tomory thereby
provided.
Nonetheless, the Court
will address the merits
of Plaintiff’s
objections.
Hearsay: Objection
Overruled. This is a
question, it is not an
out-of-court statement.
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.

26
27
28

- 24 -

1
2

DEFENDANT’S
DESIGNATIONS

PLAINTIFF’S
OBJECTIONS

DEFENDANT’S
RESPONSE

Lacks Foundation:
Objection Overruled.
This is a question.

3
4

Nondisclosure:
Objection Overruled.
This is a question.

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23

110:23 to 112:3

Objection: nondisclosure,
relevance, undue
prejudice, Rules 401
and 403; hearsay,
Rule 802; lacks
foundation, Rule
602

All of these questions
were asked by
Plaintiff’s counsel in a
trial deposition. If
counsel did not want to
hear the answer he
should not have asked
the question. Any
testimony referring to
statements made by
Plaintiff is either not
hearsay (Rule
801(d)(2)(A) as a
statement by a party
opponent. 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).
See, Defendant’s
disclosure on 7/7/16
and 1/9/17 listed above.

24
25
26
27

COURT’S
RULING

If Plaintiff’s counsel
didn’t believe that such
testimony was relevant
he should not have
asked the question.

28

- 25 -

110:23–112:3
This is an answer to
Plaintiff’s counsel’s
question, 110:14–17.
Prior to this
deposition, all parties
were aware that this
deposition was in lieu
of Lt. Tomory
testifying at trial.
Thus, it is akin to
Plaintiff’s counsel
objecting to his own
question at trial. The
Court finds that
Plaintiff waived any
objections to questions
he asked Lt. Tomory
and the answers Lt.
Tomory thereby
provided.
Nonetheless, the Court
will address the merits
of Plaintiff’s
objections.
Hearsay: Objection
Overruled. Lt. Tomory
is explaining his state
of mind at that time;
thus, it is not an outof-court statement.

1
2

DEFENDANT’S
DESIGNATIONS

PLAINTIFF’S
OBJECTIONS

DEFENDANT’S
RESPONSE

COURT’S
RULING
Relevance: Objection
Overruled. Lt. Tomory
is describing his
impressions of
Plaintiff. Therefore,
the Court finds the
answer to be relevant.

3
4
5
6
7

Undue Prejudice:
Objection Overruled.
The Court does not
find any risk of undue
prejudice.

8
9
10

Lacks Foundation:
Objection Overruled.
Lt. Tomory is
describing events that
he witnessed and was
present for.

11
12
13
14

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.”

15
16
17
18
19
20
21
22
23
24

The Court will now address Plaintiff’s designations, Defendant’s objections, and
Plaintiff’s response to Defendant’s objections.

25
26
27
28

PLAINTIFF’S
DESIGNATIONS
7:20 to 10:15

DEFENDANT’S
OBJECTIONS
No objection

PLAINTIFF’S
RESPONSE
None.

- 26 -

COURT’S
RULING
7:20–10:15

1
2

PLAINTIFF’S
DESIGNATIONS

DEFENDANT’S
OBJECTIONS

PLAINTIFF’S
RESPONSE

Defendant does not
object; therefore, the
Court finds this
testimony may be
offered.

3
4
5
6

24:20-25

No objection

None.

7

9
10
44:3 to 45:10

12

Relevance – Rule 401 None.
As to Tomory’s
respect for the EEOC

44:3–45:10

No objection

46:6–47:3

13
14
15
16
17
18
19

46:6 to 47:3

None.

20

22
23

25

49:9 to 51:15

No objection if 49:11
to 49:15 removed –
comments by counsel

26
27
28

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.

Defendant does not
object; therefore, the
Court finds this
testimony may be
offered.

21

24

24:20–25
Defendant does not
object; therefore, the
Court finds this
testimony may be
offered.

8

11

COURT’S
RULING

No objection if 50:9
to 50:19 removed –
comments by

Agreed.

49:9–51:15

This testimony is
relevant because it
demonstrates that
Tomory’s alleged

Plaintiff’s counsel has
agreed not to offer:
49:11–15.
Additionally,
Plaintiff’s counsel has
agreed to offer, for

- 27 -

1
2
3
4
5

PLAINTIFF’S
DESIGNATIONS

DEFENDANT’S
OBJECTIONS
counsel; lacks
foundation; assumes
facts not in evidence;
relevance; Rule 403,
611(a), 104(b)

PLAINTIFF’S
RESPONSE
subjective fear of Sgt.
Green was not
supported by the
objective facts.

6
7
8
9
10

COURT’S
RULING
completeness, 47:20–
49:10. Thus,
Defendant only objects
to 50:9–19. The Court
will address
Defendant’s objections
to that testimony only.

Agreed.
No objection if
47:20-49:10 are
included for
completeness – Rule
106

50:9–19
Comments by
Counsel: Objection
Overruled. Plaintiff’s
counsel is asking a
question.

11

Lacks Foundation:
Objection Overruled.
Lt. Tomory is
answering a question
regarding his
knowledge.

12
13
14
15

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.

16
17
18
19
20
21
22
23

Relevance: Objection
Overruled. Whether
Lt. Tomory knew that
there had been no prior
accusations regarding
Plaintiff committing
acts of physical
violence in the

24
25
26
27
28

- 28 -

1
2

PLAINTIFF’S
DESIGNATIONS

DEFENDANT’S
OBJECTIONS

PLAINTIFF’S
RESPONSE

COURT’S
RULING
workplace is relevant.

3
4

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.

5
6
7
8
9

61:17 to 63:15

10
11

No objection if
extended to 63:22 for
completeness – Rule
106

Agreed.

Hearsay – Rule 801

This testimony goes to
Tomory’s state of
mind, is not offered for
the truth of the
underlying statement
and consequently is not
hearsay.

Plaintiff has agreed to
also offer 63:16–22.
Thus, Defendant does
not object; therefore,
the Court finds 61:17–
63:22 may be offered.

12
13
14

68:10-25

15
16
17
18

61:17–63:15

19
20

68:10–25
Hearsay: Objection
Overruled. The
question is asking
what Lt. Tomory
knew; thus, the
testimony is being
offered to show Lt.
Tomory’s state of
mind at that time.

21
22
23
24
25

72:13-18

No objection if
extended to 72:22 for
completeness - Rule
106

Agreed.

72:13–18
Plaintiff has agreed to
also offer 72:19–22.
Thus, Defendant does
not object; therefore,
the Court finds 72:13–
22 may be offered.

26
27
28

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1
2
3

PLAINTIFF’S
DESIGNATIONS
76:2-15

4

DEFENDANT’S
OBJECTIONS

PLAINTIFF’S
RESPONSE

No objection if 76:25
to 77:13 is included
for completeness Rule 106

Agreed.

Not relevant to any
issue in this case
whether Tomory
witnessed tension
between Green and
Saflar – Rule 401;
Motion in Limine
#10 (Doc 77); Order
regarding Motions in
Limine (Doc 92) at
page 6 lines 12 - 24.

This testimony is
relevant because
Tomory claims he
witnessed conflict
between Sgt. Green
and his peers—
including Sgt. Safler.
This testimony
explains the tension.

6
7
8
77:17-21

10
11
12
13
14
15

76:2–15
Plaintiff has agreed to
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.

5

9

COURT’S
RULING

16

77:17–21
Relevancy: Objection
Overruled. The
question is asking
whether there was
tension between
Plaintiff and fellow
officer. Therefore, the
Court finds this
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.

17
18
19
20
21
22
23
24
25
26
27
28

81:2-6

No objection if 81:7
through 82:25 is
included for
completeness - Rule
106

Agreed.

81:2–6
Plaintiff has agreed to
also offer 81:7–82:25.
Thus, Defendant does
not object; therefore,

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1
2

PLAINTIFF’S
DESIGNATIONS

DEFENDANT’S
OBJECTIONS

PLAINTIFF’S
RESPONSE

the Court finds 81:7–
82:25 may be offered.

3
4

83:2 to 84:17

5
6

Irrelevant as to
relationship between
Faulkner and Lazelle
– Rule 401

This testimony is
relevant because it is
probative of
Commander Faulkner’s
bias in favor of his
“cousin” Lt. Jeff Lazell
and against Sgt. Green,
whom Sgt. Green
previously filed an
EEOC Charge against.

83:2–84:17

No objection

None.

87:23–88:24

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21

87:23 to 88:24

22

24
25

27
28

Relevancy: Objection
Overruled. Plaintiff
has previsouly argued
that as Plaintiff filed
an EEOC charge
against Lt. Jeff Lazell
in 2009. Plaintiff
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.

Defendant does not
object; therefore, the
Court finds this
testimony may be
offered.

23

26

COURT’S
RULING

100:16 to 104:25

No objection if 103:4
to 103:17 removed
and deposition Ex. 1
is stipulated into

Agreed.

100:16–104:25
Plaintiff has agreed not
to offer 103:4–17.
Thus, Defendant does

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1
2

PLAINTIFF’S
DESIGNATIONS

COURT’S
RULING

DEFENDANT’S
OBJECTIONS
evidence

PLAINTIFF’S
RESPONSE

Objection –
relevance; hearsay;
lacks foundation;
calls for speculation;
form; argumentative
– Rules 401, 801,
602, 701, 403, 611

This is relevant
because it is probative
of Commander
Faulkner’s bias in
favor of his cousin Lt.
Jeff Lazell and against
Sgt. Green, whom Jeff
filed an EEOC Charge
of Discrimination
against.

113:6–14

Hearsay – Rule 801

Commander Faulkner’s
statements are a
statement by an “agent
of a party opponent”
under Fed. R. Evid.
801 (d)(2)(D) and
consequently are not
hearsay by definition.

114:9–17

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.

3
4
5
6
7
8
9

113:6-14

10
11
12
13
14
15
16
17
18
19
20
21

Argumentative:
Objection Sustained.
Plaintiff’s counsels
question summarizes
his interpretation of
the evidence and
recites facts.
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.

22
23
24
25
26
27

114:9-17

28

- 32 -

The Court has
excluded the question
which this testimony is
an answer to;
therefore, this
testimony is also
excluded.

1
2
3

PLAINTIFF’S
DESIGNATIONS
115:1-10

DEFENDANT’S
OBJECTIONS
Hearsay – Rule 801

PLAINTIFF’S
RESPONSE
Withdrawn.

COURT’S
RULING
115:1–10
Plaintiff has agreed not
to offer this testimony.

4
5
6
7

Accordingly,

8

IT IS ORDERED that the following portions of Lt. Tomory’s Deposition can be

9

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;

10

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–

11

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–

12

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–

13

103:3; 103:18–104:25; 107:23–108:2; 108:12–109:5; 110:14–17; and 110:23–112:3.

14

Dated this 1st day of April, 2019.

15
16
17
18

Honorable Diane J. Humetewa
United States District Judge

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20
21
22
23
24
25
26
27
28

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