Greenlaw v. Acosta

Filing 181

ORDER re Kimberly Nelson Deposition Testimony. Signed by Magistrate Judge Virginia K. DeMarchi on 3/11/2025. (vkdlc2, COURT STAFF) (Filed on 3/11/2025)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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ROSEMARY GREENLAW,

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Plaintiff,

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ORDER RE KIMBERLY NELSON
DEPOSITION TESTIMONY

v.

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VINCENT N. MICONE,

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United States District Court
Northern District of California

Case No. 18-cv-04932-VKD

Defendant.

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The Secretary intends to call Kimberly Nelson as a witness at trial through Ms. Nelson’s

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deposition testimony. Ms. Greenlaw objects to the Secretary’s designations of Ms. Nelson’s

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testimony on foundation and hearsay grounds.1 See Fed. R. Evid. 602, 803. The Secretary argues

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that the testimony in question is being offered to explain Mr. Dement’s state of mind, his notice of

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certain matters, and his actions and decisions—essentially, to rebut Ms. Greenlaw’s theory that the

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Secretary’s proffered reasons for her termination are pretext for disability discrimination. It

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therefore appears that the Secretary is presenting the subject testimony for the truth of the matters

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asserted. The Secretary maintains that the deposition testimony at issue is not hearsay and

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properly may be offered for facts within Ms. Nelson’s personal knowledge, including her

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recollection and understanding of facts and/or events, and for matters that she may have seen or

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heard. Having reviewed the disputed portions of Ms. Nelson’s deposition testimony, the Court

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rules as follows:

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Ms. Greenlaw has also designated portions of Ms. Nelson’s deposition testimony that she may
present at trial. The Court understands that there are no objections to Ms. Greenlaw’s
designations.
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United States District Court
Northern District of California

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Nelson Dep. at 56:6-12: Ms. Greenlaw’s objections are sustained. To the extent the

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Secretary offers this testimony for the truth of the matters Mr. Dement reportedly told Ms. Nelson,

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it is hearsay and does not appear to be within Ms. Nelson’s personal knowledge. Fed. R. Evid.

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602, 803. The statement Mr. Dement reportedly made to Ms. Nelson does not appear to meet the

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criteria for non-hearsay under Rule 801(d)(1)(B), as it is not clear when Mr. Dement made that

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statement. See Tome v. United States, 513 U.S. 150, 167 (1995) (“The Rule [801(d)(1)(B)]

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permits the introduction of a declarant’s consistent out-of-court statements to rebut a charge of

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recent fabrication or improper influence or motive only when those statements were made before

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the charged recent fabrication or improper influence or motive.”). The statement also does not

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meet the criteria of Rule 803(3) because it is not a statement of Mr. Dement’s then present state of

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mind (such as motive, intent, or plan) or of his then-existing emotions, sensations, or physical

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condition.

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Nelson Dep. at 58:23-59:4: Ms. Greenlaw’s objections are overruled. This testimony is
not hearsay and appears to concern matters within Ms. Nelson’s personal knowledge.

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Nelson Dep. at 63:18-66:18: Ms. Greenlaw’s objections to the testimony at 63:18-65:12

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are overruled. This testimony is not hearsay and appears to concern matters within Ms. Nelson’s

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personal knowledge. Ms. Greenlaw’s objections to the testimony at 65:13-66:18 regarding Ms.

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Nelson’s recounting of statements by Ms. Goto are sustained. Fed. R. Evid. 602, 802. That

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testimony does not meet the criteria of Rule 801(d)(1)(B) or Rule 803(3).

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Nelson Dep. at 74:24-75:8: Ms. Greenlaw’s objections to this testimony are sustained.
Fed. R. Evid. 602, 802.

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Nelson Dep. at 85:13-86:17: Ms. Greenlaw’s objections to the testimony at 85:13-86:1

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are overruled. This testimony is not hearsay and appears to concern matters within Ms. Nelson’s

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personal knowledge. Ms. Greenlaw’s objections to the testimony at 86:2-17 are sustained. Fed.

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R. Evid. 602, 802.

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Nelson Dep. at 87:4-16: Ms. Greenlaw’s objections to the testimony at 87:10-11 (“There

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were complaints about her barking.”) are sustained, as it appears this testimony is not based on

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Ms. Nelson’s personal knowledge but rather statements she heard from others. Fed. R. Evid. 602,
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802. Ms. Greenlaw’s objections to the remainder of the testimony at 87:4-16 are overruled.
Nelson Dep. at 97:23-99:24: Ms. Greenlaw’s objections to the testimony at 97:23-98:9

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and 99:1-3 are overruled. This testimony is not hearsay and appears to concern matters within Ms.

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Nelson’s personal knowledge. Ms. Greenlaw’s objections to the testimony at 98:10-25 and 99:4-

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IT IS SO ORDERED.

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Dated: March 11, 2025

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Virginia K. DeMarchi
United States Magistrate Judge

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United States District Court
Northern District of California

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