Gary Siebert v. Gene Security Network, Inc

Filing 198

ORDER RE DEPOSITION TESTIMONY OF MICHELLE BULLS AND MICHELLE BULLS' DECLARATION re 147 Exhibit List filed by Gary Siebert, 181 Objection filed by Gene Security Network, Inc. Signed by Judge Jon S. Tigar on January 24, 2015. (wsn, COURT STAFF) (Filed on 1/26/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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GARY SIEBERT,

Case No. 11-cv-01987-JST

Plaintiff,
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ORDER RE DEPOSITION TESTIMONY
OF MICHELLE BULLS AND
MICHELLE BULLS’ DECLARATION

v.
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GENE SECURITY NETWORK, INC,

Re: Dkt. Nos. 147, 181

Defendant.

United States District Court
Northern District of California

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Now before the Court are the parties’ respective designations of the deposition testimony

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of Michelle Bulls. Portions of Bulls’ deposition testimony is admissible because she resides more

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than 100 miles from the courthouse. Fed. R. Civ. P. 32(a)(4)(B).

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Plaintiff Gary Siebert originally designated a substantial portion of Bulls’ deposition

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testimony for trial. ECF No. 134 at 2-6. On January 5, 2015, Siebert withdrew his prior

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designations of Bulls’ testimony and replaced them with a more modest set, ECF No. 147, and it is

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that set this order addresses.

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On January 18, 2015, Defendant Gene Security Network, Inc. (“GSN”) filed objections to

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Siebert’s designations, counter-designations of its own, and a chart summarizing the parties’

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respective designations. GSN’s objections address, and its chart includes, portions of Bulls’

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testimony that Siebert is no longer offering. ECF No. 181.

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The Court ordered Siebert to file objections to GSN’s designations by January 22, 2015 at
4:30 p.m. ECF No. 195 (Rep. Tr., Jan. 21, 2015) at 349. Siebert did not file any objections.
Addressing only those portions of Bulls’ depositions that the parties have actually
designated most recently, and the objections thereto, the Court now rules as follows:

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17:9-20
19:8-12
20:12-22:2

Designating
Party
GSN
GSN
GSN

None
None
None

23:20-23
34:8-39:7
50:20-51:21
57:15-65:2

GSN
GSN
GSN
GSN

None
None
None
None

65:9-67:24
68:13-23
69:15-70:17

GSN
GSN
GSN

None
None
None

74:21-77:7

GSN

None

78:18-85:4

Siebert

Testimony is incomplete and
misleading because it fails to
include relevant testimony on the
same issue (85:7-86:5).

85:7-86:5
87:9-19

GSN
Siebert

87:20-24
89:8-94:14
95:2-98:12

GSN
Siebert
Siebert

None
Testimony is incomplete and
misleading because it fails to
include other relevant testimony on
the same issue (87:20-24).
None
None
Testimony is based on and refers to
an inadmissible portion of the Bulls
Declaration (¶ 4); testimony
includes improper expert opinion
and states legal conclusions about
“material condition[s]” for NIH

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Objection

Admitted.
Admitted.
Admitted, except that
on its own motion, the
Court will order that
the colloquy at 20:1921:6 not be played for
the jury.
Admitted.
Admitted.
Admitted.
Admitted, except that
on its own motion, the
Court will order that
the colloquy at 64:1422 and 64:24-65:2 not
be played for the jury.
Admitted.
Admitted.
Admitted, although the
excerpt should start at
69:14.
Admitted, although the
excerpt should start at
74:18 and the colloquy
at 76:5-9 must be
excluded.

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United States District Court
Northern District of California

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Ruling

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Overruled, although the
excerpt should start at
78:14. The Court will
also adopt GSN’s
counter-designation.
Admitted.
Overruled, although the
Court will adopt
GSN’s counterdesignation.
Admitted.
Admitted.
Overruled.

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grants.
Testimony is incomplete and
misleading because it fails to
include other relevant testimony on
the same issue (103:5-104:21).

102:7-103:4

Siebert

102:11-104:21
105:10-106:3
106:8-16

GSN
GSN
GSN

None
None
None

108:4-109:16
126:24-127:25

GSN
GSN

None
None

131:20-132:1

Siebert

132:20-133:19

Siebert

133:20-134:12

Siebert

Testimony constitutes improper
leading questions that lack
foundation; testimony is speculative
and irrelevant because Bulls
previously testified that she has no
personal knowledge about
how reviewers at NIH may have
applied standard policies and
procedures to the applications by
GSN (e.g., 59:3-8).
Testimony constitutes improper
Overruled.
leading questions that lack
foundation; testimony constitutes
improper expert testimony about
what NIH would have done in
hypothetical circumstances;
testimony is irrelevant because
Siebert has stated that his FCA
claims are not based on allegations
that an “unauthorized
person” at GSN completed the
questionnaire.1
Testimony constitutes improper
Overruled. Also, the
leading questions that lack
excerpt ends at 134:15.
foundation; testimony constitutes
improper expert testimony about
what NIH would have done in
hypothetical circumstances;
testimony is irrelevant because
Siebert has stated that his FCA

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United States District Court
Northern District of California

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Overruled; also moot
in light of the Court’s
admission of GSN’s
next deposition
designation.
Admitted.
Admitted.
Admitted, although the
excerpt should start at
106:4.
Admitted.
Admitted, although the
excerpt ends at 127:21.
Sustained.

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GSN’s objection is to the deposition testimony at pages 132:6-135:11, so it is unclear the extent
to which its objections apply to the smaller designation that is actually at issue.
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134:16-135:11

Siebert

136:6-23

Siebert

136:24-137:13

Siebert

137:20-139:4

Siebert

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United States District Court
Northern District of California

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claims are not based on allegations
that an “unauthorized
person” at GSN completed the
questionnaire.
Testimony constitutes improper
leading questions that lack
foundation; testimony constitutes
improper expert testimony about
what NIH would have done in
hypothetical circumstances;
testimony is irrelevant because
Siebert has stated that his FCA
claims are not based on allegations
that an “unauthorized
person” at GSN completed the
questionnaire.
Court has ruled that testimony is
inadmissible. See Order (Jan. 16,
2015) (Dkt. No. 180) at 4.
Testimony constitutes improper
hypothetical questions that lack
foundation; testimony constitutes
improper expert testimony about
what NIH would have done in
hypothetical circumstances; and
excerpt concludes with improper
and gratuitous comment by
counsel, which is not part of the
testimony from the witness (“I’m
confident I have represented the
facts correctly”) (137:14-15).
Testimony begins with an
incomplete question and answer;
testimony constitutes improper
leading questions and hypothetical
questions that lack foundation;
testimony constitutes improper
expert testimony about what NIH
would have done in hypothetical
circumstances.

Overruled.

Sustained.

Overruled, although the
colloquy at 137:9-11
must be excluded. The
colloquy to which GSN
objects at 137:14-15 is
not part of the
designated testimony.

Sustained. The
question is
incomprehensible.

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The Court previously ordered that Michelle Bulls’ declaration was admissible “for the nonhearsay purpose of explaining Bulls’ deposition testimony.” ECF No. 180 at 4. Having now
reviewed the portions of Bulls’ deposition that the parties designated, the Court concludes that
only those portions of Bulls’ declaration to which the designated deposition testimony refers are
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admissible. When the parties submit a redacted copy of Bulls’ declaration, id., they should redact

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it accordingly.

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IT IS SO ORDERED.
Dated: January 24, 2015
______________________________________
JON S. TIGAR
United States District Judge

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United States District Court
Northern District of California

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