London Luxury LLC v. Walmart Inc., No. 5:2022cv05059 - Document 421 (W.D. Ark. 2024)
Court Description: ORDER Granting in part and Denying in part 389 Joint Motion on Objections to Deposition Designations for Moshe Abehsera. Signed by Honorable Timothy L. Brooks on March 24, 2024. (Brooks, Timothy)
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London Luxury LLC v. Walmart Inc. Doc. 421 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FAYETTEVILLE DIVISION LONDON LUXURY, LLC V. PLAINTIFF/COUNTER-DEFENDANT CASE NO. 5:22-CV-5059 WALMART, INC. DEFENDANT/COUNTER-PLAINTIFF ORDER Before the Court are the parties’ objections to certain excerpts of the deposition testimony of Moshe Abehsera. Mr. Abehsera is a former employee of London Luxury who was employed there for approximately ten years. During the relevant period, Mr. Abehsera served as London Luxury’s Chief Commercial Officer. In relation to the nitrile glove program with Walmart, Mr. Abehsera’s responsibilities included developing relationships with suppliers and coordinating tasks across London Luxury’s teams on logistics, planning, and compliance. The parties identified certain excerpts, or “Excerpt Designation Numbers,” from Mr. Abehsera’s videotaped deposition to be presented to the jury in lieu of live testimony. Each party then noted its respective objections and responses to one another’s designations. Below is a chart stating the Court’s rulings on each objection. The Joint Motion to Exclude Deposition Testimony of Moshe Abehsera (Doc. 389) is therefore GRANTED IN PART AND DENIED IN PART as follows:1 1 In many instances, the parties have objected to a question and answer in the context of showing the witness an exhibit. The Court does not know whether a given exhibit will be in evidence when the proposed deposition testimony is presented to the jury. It is possible that the Court’s rulings here might be different based on whether the exhibit at issue is or is not in evidence. 1 Dockets.Justia.com MOSHE ABEHSERA Excerpt No. 18 Objecting Party London Luxury From To Basis Court’s Ruling on the Objection OVERRULED as to 29:08–29:13; 29:8 31:05 Lacks foundation Assumes facts not in evidence (29:08- 29:18) FRE 701 SUSTAINED as FRE 403 to 29:14–31:05 (FRE 602, 403) 19 20 Walmart 31:06 31:19 Non-Responsive Answer; Wasting Time (FRE 611(a)); Testimony not a complete question and answer; Relevance (FRE 401, FRE 402) OVERRULED 24 London Luxury 39:4 39:19 Vague FRE 403 OVERRULED 31 Walmart 48:13 49:13 Non-Responsive Answer; Wasting Time (FRE 611(a)); Foundation / No Personal Knowledge (FRE 104(b) and FRE 602) SUSTAINED (Non-responsive) 32 Walmart 50:19 52:08 Vague Lacks Foundation OVERRULED as to 50:19–51:10 (through “ . . . at the time.”); SUSTAINED as to 51:10–52:08 (starting with “I know . . .”) (Nonresponsive) 33 London Luxury 53:25 54:16 Vague Lacks Foundation 2 OVERRULED 35 London Luxury 59:20 63:19 FRE 403 (61:07-63:19) FRE 802 (61:07-63:19) OVERRULED as to 61:07–63:19 (The testimony is allowed to give context to the sourcing problems encountered by London Luxury and to explain London Luxury’s course of conduct in dealing with those problems. The testimony is not received to prove the literal truth of any specific fact.) 37 Walmart 67:14 68:23 Non-Responsive Answer; Wasting Time (FRE 611(a)) OVERRULED as to 67:14–67:20 (through “I can’t recall that.”); SUSTAINED as to 67:20–68:23 (starting with “All I recall is . . .”) (Non responsive) 39 Walmart 75:02 75:21 Non-Responsive Answer; Wasting Time (FRE 611(a)) OVERRULED as to 75:02–75:09 (through “. . . that we were engaged with.”); SUSTAINED as to 75:09 –75:21 (starting with “From . . .”) (Nonresponsive) 3 41 London Luxury 78:04 78:08 Asked and answered OVERRULED 53 London Luxury 97:9 98:12 Vague (97:17-98:12) Lacks personal knowledge (97:1798:12) FRE 403 FRE 802 OVERRULED as to 97:09–97:16 (FRE 701); SUSTAINED as to 97:17–98:03 (FRE 602); OVERRULED as to 98:04–98:12 (The testimony gives industry context to explain London Luxury’s course of action. The testimony is not received to prove the truth of any particular instance.) 74 London Luxury 128:15 129:10 Assumes facts not in evidence (129:06129:10) FRE 403 OVERRULED 86 London Luxury 141:8 OVERRULED 87 London Luxury 142:20 143:7 88 London Luxury 143:12 144:22 Vague (143:12-144:10) Compound (143:12144:10) FRE 403 (143:12144:16) 142:12 Vague (141:16-142:12) FRE 403 (141:16142:12) Assumes facts not in evidence (141:16142:12) FRE 403 4 OVERRULED OVERRULED 91 London Luxury 146:9 147:4 Vague FRE 403 Calls for legal conclusion OVERRULED as to 146:09–147:03 (through “You don’t give money.”); SUSTAINED as to 147:03– 147:04 (starting with “Like, I . . .”) (Improper opinion testimony) 92 London Luxury 147:18 148:8 Vague FRE 403 Assumes facts not in evidence OVERRULED 96 London Luxury 155:3 155:24 FRE 403 Asked and answered OVERRULED 106 London Luxury 172:10 174:7 106A Walmart 174:08 175:11 Reputation or Opinion Evidence (FRE 608(a)); Relevance (FRE 401 and 402) Vague FRE 403 FRE 608 5 OVERRULED as to 172:10–174:07 (This is proper opinion testimony that Walmart is using to attack Mr. Jason’s character for truthfulness (i.e., “honesty”). FRE 405(a); FRE 608(a).) OVERRULED (Since Walmart attacked Mr. Jason’s character for (un) truthfulness, it is proper under FRE 608(a) to allow London Luxury to present opinion and/or reputation testimony of Mr. Jason’s good character for truthfulness.) 109 London Luxury 179:3 179:11 Vague FRE 403 OVERRULED 119 London Luxury 199:14 200:13 Vague Lacks foundation OVERRULED 129 London Luxury 206:18 208:12 FRE 802 (207:16208:12) OVERRULED (Ms. Laas’s statements, as an agent of London Luxury, are not hearsay if offered by Walmart. FRE 801(d)(2)(D)) 132 Walmart 210:07 214:08 210:7-211:21 - NonResponsive Answer 211:22-212:7 - No Objection 212:8-214:8 - NonResponsive Answer; Wasting Time (FRE 611(a)); Foundation / No Personal Knowledge (FRE 104(b) and FRE 602) OVERRULED as to 210:07– 211:21; 6 SUSTAINED as to 212:08–214:08 (The testimony becomes nonresponsive to the question (“When was the reset?”) at the point where the witness states, ”But what I can tell you . . .”, and then testifies in a narrative format for 50 lines of transcript.) 142 London Luxury 224:10 226:12 FRE 802 OVERRULED (The Court understands Ms. Laas to be a sourcing agent for London Luxury re: nitrile gloves. Thus, her statements are not hearsay. FRE 801(d)(2)(D).) 146 London Luxury 232:9 OVERRULED 148 London Luxury 234:12 235:5 148A London Luxury 235:6 149 Walmart 235:21 236:09 Testimony not a complete question and answer OVERRULED 152 Walmart 237:08 241:11 237:8-239:18 - No objection 239:19-241:11 - NonResponsive Answer; Wasting Time (FRE 611(a)) OVERRULED 155 London Luxury 243:17 246:23 Vague (246:09-246:23) Calls for legal conclusion (246:09246:23) FRE 802 (244:06246:08) FRE 403 OVERRULED (The statements of Ms. Laas, as sourcing agent for London Luxury, are not hearsay. FRE 233:18 Vague Misstates the exhibit Vague Argumentative OVERRULED 235:20 Vague (235:10-235:20) Argumentative (235:10235:20) Calls for speculation (235:10-235:20) OVERRULED 7 801(d)(2)(D). And while her statements may be prejudicial to London Luxury, they are not unfairly prejudicial, so the Rule 403 objection is overruled, as well.) 161 London Luxury 254:9 254:18 Vague Lacks Foundation FRE 403 167 168 London Luxury 257:25 258:13 Vague (258:09-258:23) 258:15 258:23 Lacks foundation (258:08-258:23) FRE 403 OVERRULED 169 170 London Luxury 259:6 259:11 Vague 159:16 260:3 Lacks foundation Asked and answered OVERRULED 174 London Luxury 264:16 264:21 Attachment missing from exhibit OVERRULED (With that said, LL has preserved the right to seek to have the attachment admitted at trial. But at this point, the Court does not have enough information to make a Rule 106 ruling.) 8 OVERRULED 192 Walmart 286:09 287:24 286:9-286:20 - No Objection 286:21-287:19 - NonResponsive Answer 287:20-287:24 - No Objection OVERRULED as to 286:21–287:03 (through “Careglove and Mercator.”) (as this testimony is deemed responsive); SUSTAINED as to 287:03–287:19 (starting with “And there . . .”) (as this testimony is deemed nonresponsive) 196 197 199A 202 London Luxury Walmart Walmart 290:18 291:6 Vague (290:18-291:06; 291:10 291:17 291:10-291:17) Asked and answered (290:18-291:06) Misstates facts (291:10-291:06) Assumes facts not in evidence (291:10291:17) FRE 403 SUSTAINED as to 290:18–291:06 (Non-responsive); OVERRULED as to 291:10–291:17 293:15 294:17 Non-Responsive Answer; Wasting Time (FRE 611(a)); Testimony not a complete question and answer; Foundation / No Personal Knowledge (FRE 104(b) and FRE 602 OVERRULED as to 293:15– 293:24; 295:12 297:19 295:12-296:12 - No Objection 296:13-297:19 - NonResponsive Answer; Wasting Time (FRE 611(a)) SUSTAINED as to 296:13–297:19 (Non-responsive) 9 SUSTAINED as to 293:25–294:17 (Non-responsive) 203 London Luxury 297:20 298:15 Vague (297:25-298:07) Assumes facts not in evidence (298:08298:15) OVERRULED 205 London Luxury 299:16 300:9 OVERRULED as to 299:16–299:20 (through “all the documents.”); Asked and answered FRE 403 SUSTAINED as to 299:20–300:09 (starting with “You’re looking in . . .”) (FRE 403) 208 Walmart 302:24 304:16 203:24-303:11 - No Objection 303:12-304:16 - NonResponsive Answer; Wasting Time (FRE 611(a)) SUSTAINED as to 303:12–304:16 (Non-responsive) 210 Walmart 313:08 316:26 313:8-313:13 - No Objection 313:14-316:25 - NonResponsive Answer; Wasting Time (FRE 611(a)) OVERRULED with one exception: 313:14–316:26 is responsive to WM’s question, “What happened?” However, the Court will exclude 314:20– 314:25 as nonresponsive and per Rule 403. 212 London Luxury 319:21 320:15 Asked and answered (319:21-320:03) FRE 403 OVERRULED 214 London Luxury 325:14 326:5 OVERRULED Lacks foundation (325:25-236:05) 10 215 London Luxury 326:8 326:24 Vague Misstates facts Assumes facts not in evidence 217 Walmart 327:05 328:08 Non-Responsive Answer OVERRULED OVERRULED as to 327:05–327:12 (This is a proper question and a responsive answer.); SUSTAINED as to 327:13–328:08 (Non-responsive) 218 London Luxury 328:9 328:13 Vague Lacks foundation OVERRULED 220 London Luxury 333:2 333:19 Vague (333:07-333:12) Lacks foundation (333:07-333:12) OVERRULED 221 London Luxury 333:24 336:19 Misstates the exhibit (335:09-336:19) FRE 403 OVERRULED 222 London Luxury 337:9 SUSTAINED (FRE 602) 338:6 Vague (337:22-228-06) Lacks foundation (337:22-338:06) Assumes facts not in evidence IT IS SO ORDERED on this 24th day of March, 2024. _______________________________ TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE 11
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