Armstead v. Allstate Property & Casualty Insurance Company

Filing 126

ORDER AND OPINION. This matter is before the Court on the parties' deposition designation objections 119 , 122 as to the deposition testimony of Mark Gould. The Court notes first that much of the deposition testimony consists of attorney ob jections, arguments, commentary, comments, or discussion. The parties shall exclude all attorney objections, arguments, commentary, comments, and discussion from the testimony of Mr. Gould that is allowed to be played or read at trial. That is, any questions to and answers by Mr. Gould may be offered at trial. Turning to the parties specific objections, the Court rules as follows: (See Order.) Signed by Judge William S. Duffey, Jr on 7/6/2016. (bgt)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
ELAINE ARMSTEAD,
Plaintiff,
v.

1:14-cv-586-WSD

ALLSTATE PROPERTY AND
CASUALTY INSURANCE
COMPANY,
Defendant.

OPINION AND ORDER
This matter is before the Court on the parties’ deposition designation
objections [119], [122] as to the deposition testimony of Mark Gould. The Court
notes first that much of the deposition testimony consists of attorney objections,
arguments, commentary, comments, or discussion. The parties shall exclude all
attorney objections, arguments, commentary, comments, and discussion from the
testimony of Mr. Gould that is allowed to be played or read at trial.1 That is, any

1

Specifically, in addition to the Court’s rulings below, the parties shall
exclude the following deposition pages and line numbers: 9:22-25; 10:12-14;
10:21-11:1; 11:21-12:12; 14:3-8; 15:10-14; 17:19-23; 18:24-19:2; 19:6-14; 19:1921:1; 21:15-16; 24:1-4; 25:8-11; 25:24-25; 26:6-13; 26:21; 27:23-28:1; 28:17-19;
29:10-13; 29:21-30:7; 30:16-17; 30:22; 31:14-21; 32:17; 34:1-4; 34:14-19; 35:711; 36:6-14; 36:22-23; 37:9-11; 37:15; 37:20; 37:22-23; 38:10-11; 39:6-25;

questions to and answers by Mr. Gould may be offered at trial. Turning to the
parties’ specific objections,2 the Court rules as follows:
I.

ALLSTATE’S OBJECTIONS

Deposition
Pages and
Line
Numbers
65:2-17

67:16-68:12

Ground for Objection

P206: alacrity.com website
Lack of personal knowledge [Rule
602]
Not properly authenticated [Rule
901]
Not relevant [Rule 401]
Hearsay [Rule 802]

P206: alacrity.com website
Lack of personal knowledge [Rule
602]
Not properly authenticated [Rule
901]
Not relevant [Rule 802]
Hearsay [Rule 802]

Ruling

Objections sustained. Not
relevant (Federal Rule of
Evidence (“Rule”) 402).
Confusing (Rule 403). Not
authenticated (Rule 901).
Hearsay: statements in
learned treatises only
admissible if called to
attention of an expert (Rule
802; Rule 803(18)).
Objections sustained. Not
relevant (Rule 402).
Confusing (Rule 403). Not
authenticated (Rule 901).
Hearsay: statements in
learned treatises only
admissible if called to
attention of an expert (Rule
802; Rule 803(18)).

169:22; 169:25-170:5; 173:6; 192:7; 232:11; 237:13; 253:13-14; 254:14; 254:24255:3; 266:14.
2
Any objections made but which were not considered in the Court’s rulings
were considered unfounded or not necessary for deciding the admissibility of the
testimony to which objections were asserted.

2

89:5-96:14

P202: Steamatic Guide-15 years
old
Taken by Plaintiff’s counsel
without permission
Not properly authenticated [Rule
901]
Not relevant [Rule 802]
Hearsay [Rule 802]
100:22-101:13 P10A: summary spreadsheet and
Allstate documents
Lack of personal knowledge [Rule
602]
Not properly authenticated [Rule
901]
Hearsay [Rule 802]

101:20-102:17 P10A: summary spreadsheet and
Allstate documents
Lack of personal knowledge [Rule
602]
Not properly authenticated [Rule
901]
Hearsay [Rule 802]
109:2-111:11 P10A: summary spreadsheet and
Allstate documents
Lack of personal knowledge [Rule
602]
Not properly authenticated [Rule
901]
Hearsay [Rule 802]

3

Objections sustained.
Misleading, confusing (Rule
403). Argument of counsel
is not relevant (Rule 402).
Not authenticated (Rule
907).

Objections sustained. Not
relevant that he agreed to
the description of the
document (Rule 402).
Compound question.
Relevance not established
(Rule 402). Argumentative
questioning (Rules 402,
403).
Objections sustained. No
authentication or foundation
(Rule 901).

Objections sustained. Not
relevant (Rule 402). No
authentication or foundation
(Rule 901).

136:15-146:20 P197: IICRC S100-not proper
standard
Lack of personal knowledge [Rule
602]
Not Relevant [Rule 401]
Hearsay [Rule 802]
Improper impeachment

167:4-170:5

P197: IICRC S100-not proper
standard
Lack of personal knowledge [Rule
602]
Not Relevant [Rule 401]
Hearsay [Rule 802]
Improper impeachment

170:24-178:1

P197: IICRC S100-not proper
standard
Lack of personal knowledge [Rule
602]
Not Relevant [Rule 401]
Hearsay [Rule 802]
Improper impeachment

4

Objections sustained.
Relevance not established
(Rule 402). Confusing,
misleading, waste of time
(Rule 403). Hearsay:
statements in learned
treatises only admissible if
called to attention of an
expert (Rule 802; Rule
803(18)).
Objections sustained in part
and overruled in part.
Objections overruled as to
169:13-24. Objections
sustained as to remainder.
Not relevant (Rule 402).
Confusing, misleading
(Rule 403). Hearsay:
statements in learned
treatises only admissible if
called to attention of an
expert (Rule 802; Rule
803(18)).
Objections sustained in part
and overruled in part.
Objections overruled as to
170:24-171:2; 172:2-11;
173:3-14; 175:16-176:14.
Objections sustained as to
remainder. Not relevant
(Rule 402). Confusing,
misleading (Rule 403).
Hearsay: statements in
learned treatises only
admissible if called to
attention of an expert (Rule
802; Rule 803(18)).

180:16-182:22 P197: IICRC S100-not proper
standard
Lack of personal knowledge [Rule
602]
Not Relevant [Rule 401]
Hearsay [Rule 802]
Improper impeachment

185:24-189:25 P187: Steamatic corporate website
Lack of personal knowledge [Rule
602]
Not Relevant [Rule 401]
Hearsay [Rule 802]
Not properly authenticated [Rule
901]
Improper impeachment
190:1-193:9
P197: IICRC S100-not proper
standard
Lack of personal knowledge [Rule
602]
Not Relevant [Rule 401]
Hearsay [Rule 802]
Improper impeachment

205:18-212:16 P191: photo taken in Gould’ office
without permission
Not properly authenticated [Rule
901]
Not Relevant [Rule 401]
5

Objections sustained in part
and overruled in part.
Objections overruled as to
180:16-181:11; 182:13183:1. Objections sustained
as to remainder. Not
relevant (Rule 402).
Misleading, confusing (Rule
403). Hearsay: statements
in learned treatises only
admissible if called to
attention of an expert (Rule
802; Rule 803(18)).
Objections sustained in part
and overruled in part.
Objections overruled as to
187:13-189:1. Objections
sustained as to remainder.
Not relevant (Rule 402).
Misleading, confusing (Rule
403). Hearsay (Rule 802)
Objections sustained in part
and overruled in part.
Objections overruled as to
192:3-193:9. Objections
sustained as to remainder.
Not relevant (Rule 402).
Misleading, confusing (Rule
403). Hearsay: statements
in learned treatises only
admissible if called to
attention of an expert (Rule
802; Rule 803(18)).
Objections sustained. Not
relevant (Rule 402).
Prejudicial, confusing,
misleading (Rule 403). Not
authenticated (Rule 901).

212:7-215:24

215:25-219:1

Discussion regarding suspected
trespass
Not relevant [Rule 401]
Previous depositions and lawsuits
Not relevant [Rule 401]

Objections sustained. Not
relevant (Rule 402).

Objections sustained. Not
relevant (Rule 402). Not
authenticated (Rule 901).
219:2-221:6
P202: Steamatic Guide-15 years old Objections sustained.
Taken by Plaintiff’s counsel
Not relevant (Rule 402).
Not authenticated (Rule
without permission Not properly
901).
authenticated [Rule 901]
Not relevant [Rule 802]
Hearsay [Rule 802]
229:14-238:17 P202: Steamatic Guide-15 years old Objections sustained in part
and overruled in part.
Taken by Plaintiff’s counsel
Objections overruled as to
without permission Not properly
232:4-19; 237:7-238:5.
authenticated [Rule 901]
Objections sustained as to
Not relevant [Rule 802]
remainder. Not relevant
Hearsay [Rule 802]
(Rule 402).
Confusing, misleading
(Rule 403). Not
authenticated (Rule 901)
242:24-248:2 P190: website printout
Objections sustained in part
Not properly authenticated [Rule
and overruled in part.
Objections overruled as to
901]
243:6-244:19. Objections
Not relevant [Rule 802]
sustained as to remainder.
Hearsay [Rule 802]
Not relevant (Rule 402).
Improper impeachment
Confusing, misleading
(Rule 403). Hearsay:
statements in learned
treatises only admissible if
called to attention of an
expert (Rule 802; Rule
803(18)).

6

248:3-252:10

P191: website printout
Not properly authenticated [Rule
901]
Not relevant [Rule 802]
Hearsay [Rule 802]

252:11-254:7

P192: website printout
Not properly authenticated [Rule
901]
Not relevant [Rule 802]
Hearsay [Rule 802]
Improper impeachment

7

Objections sustained. Not
relevant (Rule 402).
Confusing, misleading
(Rule 403). Hearsay:
statements in learned
treatises only admissible if
called to attention of an
expert (Rule 802; Rule
803(18)).
Objections sustained in part
and overruled in part.
Objections overruled as to
253:8-254:7. Objections
sustained as to remainder.
Not relevant (Rule 402).
Confusing, misleading
(Rule 403). Hearsay:
statements in learned
treatises only admissible if
called to attention of an
expert (Rule 802; Rule
803(18)).

254:7-277:22

P188, P189, P190, P191, P192,
P193: website printouts
Not properly authenticated [Rule
901]
Not relevant [Rule 802]
Hearsay [Rule 802]
Improper impeachment

277:19280:22

Statement regarding suspected
trespass

II.

Objections sustained in part
and overruled in part.
Objections overruled as to
254:7-255:11; 261:7-9;
261:14-21; 262:25-265:1;
265:4-10; 265:22-267:4;
268:4-272:12; 272:22273:3; 273:10-274:15;
274:23-275:10;
Objections sustained as to
remainder. Not relevant
(Rule 402).
Confusing, misleading
(Rule 403). Hearsay:
statements in learned
treatises only admissible if
called to attention of an
expert (Rule 802; Rule
803(18)).
Objections sustained. Not
relevant (402). Confusing
(403).

PLAINTIFF’S OBJECTIONS

Deposition
Pages and
Line
Numbers
9:8-25

10:1-13

Ground for Objection

Personal knowledge (Rule 602)
Hearsay (Rule 802)
Lack of authentication (Rule 901)
Personal knowledge (Rule 602)
Hearsay (Rule 802)
Lack of authentication (901)

8

Ruling

Objections overruled for
reasons stated in the Order
on Motions in Limine [121]
(“Order”)
Objections overruled for
reasons stated in the Order.

10:14-11:1

11:2-12:18

13:17-14:8

14:15-15:14

15:17-16:24

Personal knowledge (Rule 602)
Hearsay (Rule 802)
Lack of authentication (901)
Personal knowledge (Rule 602)
Hearsay (Rule 802)
Lack of authentication (901)
Personal knowledge (Rule 602)
Hearsay (Rule 802)
Lack of authentication (901)
Personal knowledge (Rule 602)
Hearsay (Rule 802)
Lack of authentication (901)
Personal knowledge (Rule 602)
Non-responsive

17:6-21:1

Hearsay (Rule 802).

21:2-22:1

Personal knowledge (Rule 602)
Hearsay (Rule 802)
Non-responsive
Failure to disclose pursuant to Rule
26
Personal knowledge (Rule 602)
Hearsay (Rule 802)
Lack of authentication (901)
Not qualified as expert witness
(Rule 702)

22:2-24:2

24:3-26:3

Hearsay (Rule 802)

27:15-28:1

Hearsay (Rule 802)

9

Objections overruled for
reasons stated in the Order.
Objections overruled for
reasons stated in the Order.
Objections overruled for
reasons stated in the Order.
Objections overruled for
reasons stated in the Order.
Objections overruled.
Testimony is relevant (Rule
402).
Objections overruled for
reasons stated in the Order.
Objections overruled for
reasons stated in the Order.
Objections overruled. For
the reasons stated in the
Court’s Orders [70], [75],
[86], the Court finds the
objected-to testimony is not
expert testimony requiring
disclosure, and the
testimony is relevant.
Objection overruled for
reasons stated in the Order.
Objection overruled for
reasons stated in the Order.

29:17-20

Speculation

30:2-4
30:14-15
31:6-32:10,
14, 15-24
32:7-9
32:25-37:11,
15, 18-23
34:4-35:13

Non-responsive
Hearsay (Rule 802)
Hearsay (Rule 802)
Non-responsive
Hearsay (Rule 802)
Hearsay (Rule 802)

36:13-37:11

Not qualified as expert witness
(Rule 702)
Hearsay (Rule 802)

37:22-38:11

Personal knowledge (Rule 602)

SO ORDERED this 6th day of July, 2016.

10

Objection overruled. Mr.
Gould may testify to
ordinary payment practices
and requirements for
payments, and such
testimony is relevant.
Objection sustained.
Objection overruled.
Objection overruled for
reasons stated in the Order.
Objection overruled.
Objection overruled for
reasons stated in the Order.
Objection overruled for
reasons stated in the Order.
Objections overruled for
reasons stated in the Order.
For the reasons stated in the
Court’s Orders [70], [75],
[86], the Court finds the
objected-to testimony is not
expert testimony requiring
disclosure, and the
testimony is relevant.
Objections overruled for
reasons stated in the Order.