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WO 

NOT FOR PUBLICATION 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Jeffrey Green, 

Plaintiff, 

v. 

City of Phoenix, et al., 

Defendant. 

No. CV-15-02570-PHX-DJH

ORDER 

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

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

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

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

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

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

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

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

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

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

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

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

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

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 

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

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

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

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

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

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

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

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

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

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

Accordingly, the Court overrules Plaintiff’s general objections. 

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

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

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

DEFENDANT’S 

DESIGNATIONS 

PLAINTIFF’S 

OBJECTIONS 

DEFENDANT’S 

RESPONSE 

COURT’S 

RULING

5:15 to 14:18 12:20-25; 13:1 

Objection: hearsay, 

Rule 802; relevance 

and undue 

prejudice, Rules 

401, 403 

13:15-25 

Objection: 

relevance, undue 

prejudice, Rules 

401, 403 

14:1-18; 

Objection: 

relevance, undue 

12:20-25 and 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). 

13:15-25; 14:1-18 

12:20–13:1 

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. 
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DEFENDANT’S 

DESIGNATIONS 

PLAINTIFF’S 

OBJECTIONS 

DEFENDANT’S 

RESPONSE 

COURT’S 

RULING

prejudice, Rules 

401, 403 

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 

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 

COURT’S 

RULING

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 

March 15, 2013 

(PHX002469 - 002495) 

Finley Green Tomory 

Faulkner 

March 22, 2013 

(PHX002496 - 002528) 
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DEFENDANT’S 

DESIGNATIONS 

PLAINTIFF’S 

OBJECTIONS 

DEFENDANT’S 

RESPONSE 

COURT’S 

RULING

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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DEFENDANT’S 

DESIGNATIONS 

PLAINTIFF’S 

OBJECTIONS 

DEFENDANT’S 

RESPONSE 

COURT’S 

RULING

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 

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. 

16:3 to 20:5 16:3-25 

Objection: 

relevance, Rules 401 

and 403 

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 

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 

COURT’S 

RULING

20:14 to 26:2 20:14–26:2 

Plaintiff does not 

object; therefore, the 

Court finds this 

testimony may be 

offered. 

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 

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). 

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. 

26:1–5

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 25:23-

26:2. Thus, it appears 

that Plaintiff is only 

objecting to the last 

two lines of the 

answer. The Court 

will overrule that 

objection. 

26:16–27:5

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 

COURT’S 

RULING

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.

27:20 to 27:22 Objection: hearsay, 

Rule 802; 

foundation, Rule 

602 

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). 

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. 

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 

28:1–29:3

Hearsay: Objection 

Overruled. The 
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DEFENDANT’S 

DESIGNATIONS 

PLAINTIFF’S 

OBJECTIONS 

DEFENDANT’S 

RESPONSE 

COURT’S 

RULING

Rule 802; lacks 

foundation, Rule 

602

Plaintiff during 

monthly meetings. His 

observations as to 

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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. 

Supervisor impressions 

of Plaintiff’s behavior 

are relevant to the 

honesty of the belief 

that Plaintiff’s behavior 

needed to be evaluated. 

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 

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. 

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 

COURT’S 

RULING

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. 

See, Defendant’s 

disclosure on 7/7/16 

and 1/9/17 listed above. 

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 

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 

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 

COURT’S 

RULING

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. 

See, Defendant’s 

disclosure on 7/7/16 

and 1/9/17 listed above. 

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.

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 and 

about the location of 

Lt. Tomory’s 

secondary weapon. 

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. 

Lacks Foundation: 

Objection Overruled. 

Lt. Tomory is 
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DEFENDANT’S 

DESIGNATIONS 

PLAINTIFF’S 

OBJECTIONS 

DEFENDANT’S 

RESPONSE 

COURT’S 

RULING

describing events that 

he witnessed and was 

present for. 

39:23 to 40:4 39:23-25; 40:1-4 

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. 

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. 

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). 

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 

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 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 

COURT’S 

RULING

Lt. Tomory and 

Plaintiff. 

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. 

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.” 

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. 

47:20–49:10

Plaintiff waived this 

objection by agreeing 

to include this portion 

of testimony. (See 

Doc. 112 at 75). 
- 14 - 

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DEFENDANT’S 

DESIGNATIONS 

PLAINTIFF’S 

OBJECTIONS 

DEFENDANT’S 

RESPONSE 

COURT’S 

RULING

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. 

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). 

The testimony is 

responsive to the 

question and does not 

constitute hearsay. 

49:16 to 49:23 49:16–23 

Plaintiff does not 

object; therefore, the 

Court finds this 

testimony may be 

offered. 

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 

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 
- 15 - 

1 

2 

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 

DEFENDANT’S 

DESIGNATIONS 

PLAINTIFF’S 

OBJECTIONS 

DEFENDANT’S 

RESPONSE 

COURT’S 

RULING

foundation, Rule 

602

have asked the 

question. 

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. 

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). 

The testimony is 

responsive to the 

question and does not 

constitute hearsay. 

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 

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. 

Lacks Foundation: 

Objection Overruled. 

Lt. Tomory is 

describing events that 

he witnessed and was 

present for. 
- 16 - 

1 

2 

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 

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.” 

52:22 to 53:17 52:22-25 

Objection: nondisclosure, relevance 

and prejudice, Rules 

401 and 403; 

hearsay, Rule 802; 

lacks foundation, 

Rule 602

This objection is 

nonsensical. Plaintiff’s 

counsel asked a 

question at 52:6 but 

objected to the 

beginning of Tomory’s 

answer but not the rest. 

Completion under Rule 

106 requires 52:22-25 

to be admitted. 

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. 

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 

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. 

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 not 
- 17 - 

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2 

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 

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DESIGNATIONS 

PLAINTIFF’S 

OBJECTIONS 

DEFENDANT’S 

RESPONSE 

COURT’S 

RULING

F.Supp.2d 1087, 1092 

(C.D.Cal. 2011). 

The testimony is 

responsive to the 

question and does not 

constitute hearsay. 

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. 

Lacks Foundation: 

Objection Overruled. 

Lt. Tomory is 

describing events that 

he witnessed and was 

present for. 

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.” 

72:9 to 73:13 72:9–72:13 

Plaintiff does not 

object; therefore, the 

Court finds this 
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1 

2 

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 

DEFENDANT’S 

DESIGNATIONS 

PLAINTIFF’S 

OBJECTIONS 

DEFENDANT’S 

RESPONSE 

COURT’S 

RULING

testimony may be 

offered. 

76:4 to 76:8 Objection: questions 

of counsel are not 

evidence 

Questions of counsel 

are the predicate for the 

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

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. 

76:25 to 77:13 Objection: nondisclosure, relevance 

and prejudice, Rules 

401 and 403; 

hearsay; Rule 802; 

lacks foundation, 

Rule 602

76:25 to 77:15 

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. 

76:25–77:13

The Court finds that 

Plaintiff has waived 

this objecting by 

agreeing to allow this 

testimony to be 

offered. (See Doc. 112 

at 76). 
- 19 - 

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2 

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 

DEFENDANT’S 

DESIGNATIONS 

PLAINTIFF’S 

OBJECTIONS 

DEFENDANT’S 

RESPONSE 

COURT’S 

RULING

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. 

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). 

The testimony is 

responsive to the 

question and does not 

constitute hearsay. 

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. 

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). 
- 20 - 

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2 

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 

DEFENDANT’S 

DESIGNATIONS 

PLAINTIFF’S 

OBJECTIONS 

DEFENDANT’S 

RESPONSE 

COURT’S 

RULING

Plaintiff’s objection to 

Tomory’s answer 

violates Rule 106.

88:7 to 88:10 88:7–88:10 

Plaintiff does not 

object; therefore, the 

Court finds this 

testimony may be 

offered. 

88:14 to 88:24 88:14–88:24 

Plaintiff does not 

object; therefore, the 

Court finds this 

testimony may be 

offered. 

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. 

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. 
- 21 - 

1 

2 

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 

DEFENDANT’S 

DESIGNATIONS 

PLAINTIFF’S 

OBJECTIONS 

DEFENDANT’S 

RESPONSE 

COURT’S 

RULING

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. 

If Plaintiff’s counsel 

didn’t believe that such 

testimony was relevant 

he should not have 

asked the question. 

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. The initial 

question is whether Lt. 

Tomory recorded his 

conversations with 

Plaintiff. The next 

question is why Lt. 

Tomory started 

recording the 

conversations. Lt. 

Tomory then explains 

why he was recording 

the conversations; 

thus, the statements 

are not being offered 

for the truth of the 

matter asserted; but 

rather to explain Lt. 

Tomory’s state of 

mind when he made 

the decision to record 

his conversations. 

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. 

Lacks Foundation: 

Objection Overruled. 

Lt. Tomory is 
- 22 - 

1 

2 

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 

DEFENDANT’S 

DESIGNATIONS 

PLAINTIFF’S 

OBJECTIONS 

DEFENDANT’S 

RESPONSE 

COURT’S 

RULING

describing events that 

he witnessed and was 

present for. 

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.” 

107:23 to 108:2 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 

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. 
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1 

2 

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 

DEFENDANT’S 

DESIGNATIONS 

PLAINTIFF’S 

OBJECTIONS 

DEFENDANT’S 

RESPONSE 

COURT’S 

RULING

F.Supp.2d 1087, 1092 

(C.D.Cal. 2011). 

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. 

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 

as it concerns what 

information Lt. 

Tomory documented 

in his supervisory 

notes. 

Undue Prejudice: 

Objection Overruled. 

This is a question; 

thus, the Court does 

not find any risk of 

undue prejudice. 

Lacks Foundation: 

Objection Overruled. 

This is a question. 

Nondisclosure: 

Objection Overruled. 

This is a question. 

108:12 to 109:5 108:12–109:5 

Plaintiff does not 

object; therefore, the 

Court finds this 

testimony may be 

offered. 
- 24 - 

1 

2 

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 

DEFENDANT’S 

DESIGNATIONS 

PLAINTIFF’S 

OBJECTIONS 

DEFENDANT’S 

RESPONSE 

COURT’S 

RULING

110:14 to 110:17 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. 

If Plaintiff’s counsel 

didn’t believe that such 

testimony was relevant 

he should not have 

asked the question. 

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.
- 25 - 

1 

2 

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 

DEFENDANT’S 

DESIGNATIONS 

PLAINTIFF’S 

OBJECTIONS 

DEFENDANT’S 

RESPONSE 

COURT’S 

RULING

Lacks Foundation: 

Objection Overruled. 

This is a question. 

Nondisclosure: 

Objection Overruled. 

This is a question. 

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. 

If Plaintiff’s counsel 

didn’t believe that such 

testimony was relevant 

he should not have 

asked the question. 

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. 
- 26 - 

1 

2 

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 

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. 

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. 

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.” 

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

Plaintiff’s response to Defendant’s objections. 

PLAINTIFF’S 

DESIGNATIONS 

DEFENDANT’S 

OBJECTIONS 

PLAINTIFF’S 

RESPONSE 

COURT’S 

RULING

7:20 to 10:15 No objection None. 7:20–10:15 
- 27 - 

1 

2 

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 

PLAINTIFF’S 

DESIGNATIONS 

DEFENDANT’S 

OBJECTIONS 

PLAINTIFF’S 

RESPONSE 

COURT’S 

RULING

Defendant does not 

object; therefore, the 

Court finds this 

testimony may be 

offered. 

24:20-25 No objection None. 24:20–25 

Defendant does not 

object; therefore, the 

Court finds this 

testimony may be 

offered. 

44:3 to 45:10 Relevance – Rule 401

As to Tomory’s 

respect for the EEOC

None. 44:3–45:10 

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. 

46:6 to 47:3 No objection None. 46:6–47:3 

Defendant does not 

object; therefore, the 

Court finds this 

testimony may be 

offered. 

49:9 to 51:15 No objection if 49:11 

to 49:15 removed – 

comments by counsel

No objection if 50:9 

to 50:19 removed – 

comments by

Agreed.

This testimony is 

relevant because it 

demonstrates that 

Tomory’s alleged 

49:9–51:15 

Plaintiff’s counsel has 

agreed not to offer: 

49:11–15. 

Additionally, 

Plaintiff’s counsel has 

agreed to offer, for 
- 28 - 

1 

2 

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 

PLAINTIFF’S 

DESIGNATIONS 

DEFENDANT’S 

OBJECTIONS 

PLAINTIFF’S 

RESPONSE 

COURT’S 

RULING

counsel; lacks 

foundation; assumes 

facts not in evidence; 

relevance; Rule 403, 

611(a), 104(b)

No objection if 

47:20-49:10 are 

included for 

completeness – Rule 

106

subjective fear of Sgt. 

Green was not 

supported by the 

objective facts.

Agreed.

completeness, 47:20–

49:10. Thus, 

Defendant only objects 

to 50:9–19. The Court 

will address 

Defendant’s objections 

to that testimony only. 

50:9–19 

Comments by 

Counsel: Objection 

Overruled. Plaintiff’s 

counsel is asking a 

question. 

Lacks Foundation: 

Objection Overruled. 

Lt. Tomory is 

answering a question 

regarding his 

knowledge. 

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. 

Relevance: Objection 

Overruled. Whether 

Lt. Tomory knew that 

there had been no prior 

accusations regarding 

Plaintiff committing 

acts of physical 

violence in the 
- 29 - 

1 

2 

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 

PLAINTIFF’S 

DESIGNATIONS 

DEFENDANT’S 

OBJECTIONS 

PLAINTIFF’S 

RESPONSE 

COURT’S 

RULING

workplace is relevant. 

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. 

61:17 to 63:15 No objection if 

extended to 63:22 for 

completeness – Rule 

106

Agreed. 61:17–63:15 

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. 

68:10-25 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.

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. 

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. 
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76:2-15 No objection if 76:25 

to 77:13 is included 

for completeness - 

Rule 106

Agreed. 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. 

77:17-21 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.

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. 

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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the Court finds 81:7–

82:25 may be offered. 

83:2 to 84:17 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 

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. 

87:23 to 88:24 No objection None. 87:23–88:24 

Defendant does not 

object; therefore, the 

Court finds this 

testimony may be 

offered. 

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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evidence 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. 

113:6-14 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 

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. 

114:9-17 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 

The Court has 

excluded the question 

which this testimony is 

an answer to; 

therefore, this 

testimony is also 

excluded. 
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115:1-10 Hearsay – Rule 801 Withdrawn. 115:1–10 

Plaintiff has agreed not 

to offer this testimony. 

Accordingly, 

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

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; 

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–

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–

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–

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

Dated this 1st day of April, 2019. 

Honorable Diane J. Humetewa

United States District Judge