BRUHN-POPIK v. MABUS et al

Filing 136

ORDER Regarding Designated Deposition Transcripts. Signed by Judge Anthony J. Battaglia on 8/10/2021.(jrm)

Case 3:17-cv-00488-AJB-MDD Document 136 Filed 08/11/21 PageID.1469 Page 1 of 5

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MARIANNE BRUHN-POPIK,

Case No.: 3:17-cv-00488-AJB-MDD

Plaintiff,

ORDER REGARDING DESIGNATED
DEPOSITION TRANSCRIPTS

v.
RICHARD SPENCER as acting,
Secretary of the United States Navy,
Defendant.

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In preparation for trial, the Court has ordered the parties to file to a joint statement

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of deposition designations and objections thereto. They have complied and the joint

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statement is on file as ECF. Doc. 133.

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The designations relate to two lay witnesses identified and deposed by and proffered

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by plaintiff. The Court has reviewed the designations and read the entirety of the

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transcripts. The designated portions and objections are lengthy, and the objections are

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substantially sustained as described below. The Court sees little need for oral argument on

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these matters and sets forth below its rulings on the admissibility and form of the

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designations. Objections are appropriately raised under Fed. R. Civ. P. 32(b).

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Whether the depositions can be read as evidence in lieu of a personal appearance at

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all will be based on the proponent’s ability to establish witness unavailability. See, Fed. R.

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Civ. P. 32(a)(4). That has not been demonstrated to date. If the depositions are read, it will
be limited to the portions called out below.
Defendant generally objects to witnesses Cecil Hounshell and Paul Maynard on the
grounds that their testimony is not relevant, unfairly prejudicial, and that Plaintiff seeks to
adduce hearsay testimony or improper character evidence. FRE 401, 403, 404-05, 608,
802. Defendant also objects that the testimony does not amount to similar conduct. See
Vasquez v. Cty. of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003).
These objections are considered in general, and as lodged throughout the Joint
Statement. The Defendant frequently objects on additional basis including Fed. R. Evid.
403 and 701, among others.

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These witnesses with little personal knowledge “opine” on many topics well outside

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the bounds of the lay opinion rule (Fed. R. Evid. 701) and in areas really covered by 702,

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including employment practices and military base operation and procedures. They offer

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little to no actual testimony concerning the issues surrounding plaintiff’s employment or

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allegations. There unsubstantiated conjecture and conclusions are indeed objectionable.

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These witnesses also delve into inappropriate character testimony about plaintiff.

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Plaintiff counter’s that the witnesses have years of experience and knowledge to support

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many of the observations and opinions, and that’s the problem. Rule 702 covers testimony

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in the form of opinions based on specialized knowledge and reliable principles. These

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witnesses were not designated as experts (nor could they qualify as such).

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The opinions about who would or would not be subject to adverse employment

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actions lack foundation, lack any factual context, are based on incomplete hypotheticals,

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and are gratuitous and not helpful.

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Rule 701 allows some “opinion” or conclusory testimony to address the problem

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that witnesses often find difficulty in expressing themselves in language that is not that of

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an opinion or conclusion.” Rule 701, 1972 Advisory Committee Notes. Hence, the Rule

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allows people to give opinions like appearance of persons or things, identity, degrees of

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light, size, weight distance and the like. What is “conduct unbecoming” for example is
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beyond that realm. As the Advisory Committee has stated, “if . . . attempts are made to
introduce meaningless assertions which amount to little more than choosing up sides,
exclusion for lack of helpfulness is called for by the rule.” Id.
With these comments and those made on the record on August 10, 2021, the Court
sustains the objections made by counsel in ECF Doc 133, except for the passages below.
For the passages below, the objections are overruled. Obviously undisputed designations
may be also offered.
Mr. Hounsell:
33:2 to 35:24

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38:5 to 38:11

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39:10 to 39:15

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46:16 to 47:20

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56:8 to 56:16

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69:17 to 69:25

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73:19 to 73:24

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83:2 to 84:5

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97:3 to 97:6

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98:1 to 98:4

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135:19 to 135:23

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91:22 to 91:24

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92:3 to 92:5

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94:12 to 94:17

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95:10 to 95:19

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95:21 to 95:23

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96:4 to 96:7

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96:14 to 96:16

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96:21 to 96:23

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98:1 to 98:7
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119:1 to 119:5
Maynard
57:2 to 57:4
57:21 to 58:1
53:17 to 54:6
71:15 to 71:22
90:20 to 91:6
91:23 to 92:14 ending with “no sir.”
96:18 to 97:5

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66:25 to 68:3

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68:4 to 68:12

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68:20 to 68:25

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76:5 to 77:17

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80:12 to 80:19

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82:12 to 83:2

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90:13 to 90:18

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100:18 to 101:15

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145:13 to 146:25

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Counsel are directed to provide redacted copies of the pages with the allowed

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passages, with all other matter redacted, and these copies will be used to read the testimony

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to the jury if the witnesses are unavailable. The redacted copies will be the official record

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of the testimony read and will be marked as exhibits for identification only. The Court

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Reporter will not otherwise record the testimony read.

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IT IS SO ORDERED.

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Dated: August 10, 2021

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