i OC SIDINYSE hse See eh UNE RUE : UNITED STATES DISTRICT COURT a □□ ROMICALL □ □ SOUTHERN DISTRICT OF NEW YORK oN IO □□ MOE Bp □□ ctr : caine eee Hf E, JEAN CARROLL, DATE FILED: - 25-2023 i Plaintiff,
-against- 22-cv-10016 (LAK)
DONALD J, TRUMP, Defendant. ee ee ee ee eee HK
ORDER
LEWIS A. KAPLAN, District Judge. The Court’s rulings on the objections noted by the parties to the designations and counter-designations of certain portions of Mr. Trump’s deposition are set forth in the attached schedule. The notation “deferred” means that the Court reserves decision on the objection until it is raised, if it is raised, by counsel at trial. With respect to Ms, Carroll’s objections to Mr, Trump’s counter-designations, the Court has sustained those objections it has determined are inadmissible under Federal Rule of Civil Procedure 32. Rule 32(a)(6) provides that “[i]f a party offers in evidence only part of a deposition, an adverse party may require the offeror to introduce other parts that in fairness should be considered with the part introduced, and any party may itself introduce any other parts.” “This rule represents an attempt to preclude the selective use of deposition testimony that might convey a misleading impression,”' and permits an adverse party to “supplement [portions of a deposition designated by the offering party] in the interest of completeness.”? Mr. Trump’s argument that Rule 32(a)(6) authorizes a party to use “any other parts” of a deposition of which parts are offered by its adversary is unsupported by the great weight of authority.* Such an interpretation of the rule also would render Farry Man Coffee Inc. v. Chester, No. 88-cv-1692 (DNE), 1993 WL 248799, at *19 (S.D.N.Y. June 28, 1993), aff'd, 19 F.3d 9 (2d Cir. 1994), Inve Sims, 534 F.3d 117, 141 (2d Cir. 2008). See Dkt 152 (Pl. Opposition Letter) at 1-3 (citing cases).
its first part, which reflects the purported policy objective of the rule, superfluous.’ With respect to those objections noted by Ms. Carroll which the Court has overruled, the Court has determined that those counter-designations serve the interest of completeness and therefore are permitted pursuant to Rule 32(a)(6). As to the other grounds on which Ms. Carroll has objected to the counter-designations that the Court has marked “overruled” in the attached ruling, the basis for objecting on those other grounds is not now clear based on the parties’ submissions. Any such objections therefore are overruled subject to renewal at trial only on any non-Rule 32(a)(6) grounds noted in Dkt 129.
SO ORDERED. Dated: April 25, 2023 Mis. Lewis A.\Kapla: United States District Judge See Rule 1-07 and accompanying Note, PRELIMINARY DRAFT OF PROPOSED RULES OF EVIDENCE FOR THE UNITED STATES DISTRICT COURTS AND MAGISTRATES, 21-22 (March, 1969) (“The rule is an expression of the rule of completeness. ... The rule is based on two considerations. The first is the misleading impression created by taking matters out of context. The second is the inadequacy of repair work when delayed to a point later in the trial.”)}; Fed. R. Civ. P. 32(a)(6), Advisory committee’s note to 1970 amendment (“The new standard is contained in a proposal made by the Advisory Committee on Rules of Evidence. See Rule 1-07 and accompanying Note, Preliminary Draft of Proposed Rules of Evidence for the United States District Courts and Magistrates 21-22 (March, 1969}.”).
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
E. JEAN CARROLL, Plaintiff, Vv. No, 22 Civ, 10016 (LAK) DONALD J. TRUMP, Defendant.
DEPOSITION DESIGNATIONS AND OBJECTIONS The parties, having conferred among themselves, designate and counter-designate the below portions of the October 19, 2022 Deposition of Donald J. Trump (“Defendant’s Deposition”), and note their objections for the Court. A. Plaintiff's Designations of Defendant’s Deposition and Defendant’s Objections Plaintiff's Designations Deferdant’s Objections
38:4 - 38:20 Deferred FRE 402 (Defendant will file a letter brief on this issue)
B. Defendant’s Counter-Designations of Defendant’s Deposition and Plaintiff's Objections Defendant’s C ter- soe oe Designations 50:25-51:6 Sustained FRCP 32(a)(6); FRE 106! 31:8-51:12 Sustained FRCP 32(a)(6); FRE 106 55:20 (starting with “it was”) . FRCP 32(a)(6); FRE 106 - 56:5 Sustained (ay(6) 58:5 - 58:6 Overruled FRCP 32(a)(6); FRE 106, 403, 611 §8:14 - 59:23 Overruled | FRCP 32(a)(6); FRE 106, 403, 611 60:3 - 60:18 Sustained FRCP 32(a)(6); FRE 106 71:4-71:24 Sustained FRCP 32(a)(6); FRE 106 FRCP 32(a)(6); FRE 106, 402, 403, 602; Memorandum and 72:6-72:19 Sustained Order on Plaintiff's in Limine Motion, Carroll v. Trump, No. 22 Civ. 10016 (Mar. 27, 2023), ECF 95 . FRCP 32(a}(6); FRE 106, 402, 403, 602; Memorandum and 72:14 - 73:16 Sustained Order on Plaintiffs in Limine Motion, Carroll v. Trump, No. 22 Civ. 10016 (Mar. 27, 2023), ECF 95 FRCP 32(a)(6); FRE 106, 402, 403, 602; Memorandum and 73:18 - 73:20 Sustained | Order on Plaintiffs in Limine Motion, Carroll v. Trump, No. 22 Civ. 10016 (Mar. 27, 2023), ECF 95 77:14 (starting with “And . . FRCP 32(a)(6); FRE 106, 403, 602, 8027 if’) - 78:5 Sustained (an(6)
' Plaintiff objects under Federal Rule of Civil Procedure
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i OC SIDINYSE hse See eh UNE RUE : UNITED STATES DISTRICT COURT a □□ ROMICALL □ □ SOUTHERN DISTRICT OF NEW YORK oN IO □□ MOE Bp □□ ctr : caine eee Hf E, JEAN CARROLL, DATE FILED: - 25-2023 i Plaintiff,
-against- 22-cv-10016 (LAK)
DONALD J, TRUMP, Defendant. ee ee ee ee eee HK
ORDER
LEWIS A. KAPLAN, District Judge. The Court’s rulings on the objections noted by the parties to the designations and counter-designations of certain portions of Mr. Trump’s deposition are set forth in the attached schedule. The notation “deferred” means that the Court reserves decision on the objection until it is raised, if it is raised, by counsel at trial. With respect to Ms, Carroll’s objections to Mr, Trump’s counter-designations, the Court has sustained those objections it has determined are inadmissible under Federal Rule of Civil Procedure 32. Rule 32(a)(6) provides that “[i]f a party offers in evidence only part of a deposition, an adverse party may require the offeror to introduce other parts that in fairness should be considered with the part introduced, and any party may itself introduce any other parts.” “This rule represents an attempt to preclude the selective use of deposition testimony that might convey a misleading impression,”' and permits an adverse party to “supplement [portions of a deposition designated by the offering party] in the interest of completeness.”? Mr. Trump’s argument that Rule 32(a)(6) authorizes a party to use “any other parts” of a deposition of which parts are offered by its adversary is unsupported by the great weight of authority.* Such an interpretation of the rule also would render Farry Man Coffee Inc. v. Chester, No. 88-cv-1692 (DNE), 1993 WL 248799, at *19 (S.D.N.Y. June 28, 1993), aff'd, 19 F.3d 9 (2d Cir. 1994), Inve Sims, 534 F.3d 117, 141 (2d Cir. 2008). See Dkt 152 (Pl. Opposition Letter) at 1-3 (citing cases).
its first part, which reflects the purported policy objective of the rule, superfluous.’ With respect to those objections noted by Ms. Carroll which the Court has overruled, the Court has determined that those counter-designations serve the interest of completeness and therefore are permitted pursuant to Rule 32(a)(6). As to the other grounds on which Ms. Carroll has objected to the counter-designations that the Court has marked “overruled” in the attached ruling, the basis for objecting on those other grounds is not now clear based on the parties’ submissions. Any such objections therefore are overruled subject to renewal at trial only on any non-Rule 32(a)(6) grounds noted in Dkt 129.
SO ORDERED. Dated: April 25, 2023 Mis. Lewis A.\Kapla: United States District Judge See Rule 1-07 and accompanying Note, PRELIMINARY DRAFT OF PROPOSED RULES OF EVIDENCE FOR THE UNITED STATES DISTRICT COURTS AND MAGISTRATES, 21-22 (March, 1969) (“The rule is an expression of the rule of completeness. ... The rule is based on two considerations. The first is the misleading impression created by taking matters out of context. The second is the inadequacy of repair work when delayed to a point later in the trial.”)}; Fed. R. Civ. P. 32(a)(6), Advisory committee’s note to 1970 amendment (“The new standard is contained in a proposal made by the Advisory Committee on Rules of Evidence. See Rule 1-07 and accompanying Note, Preliminary Draft of Proposed Rules of Evidence for the United States District Courts and Magistrates 21-22 (March, 1969}.”).
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
E. JEAN CARROLL, Plaintiff, Vv. No, 22 Civ, 10016 (LAK) DONALD J. TRUMP, Defendant.
DEPOSITION DESIGNATIONS AND OBJECTIONS The parties, having conferred among themselves, designate and counter-designate the below portions of the October 19, 2022 Deposition of Donald J. Trump (“Defendant’s Deposition”), and note their objections for the Court. A. Plaintiff's Designations of Defendant’s Deposition and Defendant’s Objections Plaintiff's Designations Deferdant’s Objections
38:4 - 38:20 Deferred FRE 402 (Defendant will file a letter brief on this issue)
B. Defendant’s Counter-Designations of Defendant’s Deposition and Plaintiff's Objections Defendant’s C ter- soe oe Designations 50:25-51:6 Sustained FRCP 32(a)(6); FRE 106! 31:8-51:12 Sustained FRCP 32(a)(6); FRE 106 55:20 (starting with “it was”) . FRCP 32(a)(6); FRE 106 - 56:5 Sustained (ay(6) 58:5 - 58:6 Overruled FRCP 32(a)(6); FRE 106, 403, 611 §8:14 - 59:23 Overruled | FRCP 32(a)(6); FRE 106, 403, 611 60:3 - 60:18 Sustained FRCP 32(a)(6); FRE 106 71:4-71:24 Sustained FRCP 32(a)(6); FRE 106 FRCP 32(a)(6); FRE 106, 402, 403, 602; Memorandum and 72:6-72:19 Sustained Order on Plaintiff's in Limine Motion, Carroll v. Trump, No. 22 Civ. 10016 (Mar. 27, 2023), ECF 95 . FRCP 32(a}(6); FRE 106, 402, 403, 602; Memorandum and 72:14 - 73:16 Sustained Order on Plaintiffs in Limine Motion, Carroll v. Trump, No. 22 Civ. 10016 (Mar. 27, 2023), ECF 95 FRCP 32(a)(6); FRE 106, 402, 403, 602; Memorandum and 73:18 - 73:20 Sustained | Order on Plaintiffs in Limine Motion, Carroll v. Trump, No. 22 Civ. 10016 (Mar. 27, 2023), ECF 95 77:14 (starting with “And . . FRCP 32(a)(6); FRE 106, 403, 602, 8027 if’) - 78:5 Sustained (an(6)
' Plaintiff objects under Federal Rule of Civil Procedure 32(a)(6) and Federal Rule of Evidence 106 to the extent Defendant designates portions of Defendant’s testimony that are not made “in the interest of completeness.” □□ re Sims, 534 F.3d 117, 141 (2d Cir, 2008) (citing Fed. R. Civ. P. 32(a)(6)). Federal Rule of Civil procedure 32{a)(6) “represents an attempt to preclude the selective use of deposition testimony that might convey a misleading impression.” Farr Man Coffee Inc. v. Chester, No. 88 Civ. 1692, 1993 WL 248799, at *19 (S.D.NLY. June 28, 1993), affd, 19 F.3d 9 (2d Cir, 1994); see also Great Am. Ins. Co. v. Moye, No. 10 Civ. 00330, 2010 WL 2889665, at *2 (MLD. Fla. July 19, 2010) (“Rule [32(a)(6)] is similar to Rujie 106 of the Federal Rules of Evidence, and differences between fhe two are largely semantic.”). Where Defendant’s counter-designations seek to “introduce new material” and “do not serve to ‘give the whole picture’ of a portion” of the deposition that Plaintiff designated, they “are inadmissible.” Farr Man Caffee Ine., 1993 WL 248799, at *19; accord In re Yasmin & Yaz (Drospirenone) Mktg., Sales Pracs. & PMF Prod. Liab. Litig., No. 09 Civ. 10012, 2011 WL 6740391, at *19 (S.D. Ill. Dec. 22, 2011); Chaudhry vy. Angell, No. 173-182, 2021 WL 4461667, at *7-8 (E.D. Cal. Sept. 29, 2021). Defendant will respond to this by Letter Brief. Plaintiff objects under Federal Rule of Evidence 802 where Defendant omits questions from the designated testimony or designates incomplete portions of an answer. A deposition may be used only “to the extent it would be admissible under the Federal Rules of Evidence if the deponent were present and testifying.” Fed, R. Civ, P. 32(a)(1)(B). Where an answer is designated without a question and where only portions of an answer are designated, the designation material no longer constitutes “testimony” that might be admissible pursuant to Federal Rule of Civil Procedure 32
Defendant's Counter- Plaintiff's Objections Designations
103:6 - 103:19 Sustained | FRCP 32(a)(6); FRE 106 116:22-117:4 Sustained | FRCP 32(a)(6); FRE 106 119:5-119:22 Sustained | PROP 32(a)(6); FRE 106 119:24 - 120:15 Sustained | FRCP 32(a)(6); FRE 106 130:6 - 130:16 (ending with “would happen”) Sustained FRCP 32(a)(6); FRE 106 131:5-131:9 Systained | FRCP 32(a)(6); FRE 106, 403 132:9-134:13 Overruled | FRCP 32(a)(6); FRE 106, 403, 611 134:19 - 134:24 Sustained | FRCP 32(a)(6); FRE 106, 602, 802 137:18 - 138:3 Overruled | FRCP 32(a)(6); FRE 106, 403 139:8 - 139:24 Overruled | FRCP 32(a)(6); FRE 106, 602, 802 141:3-141:20 Overruled | FRCP 32(a)(6); FRE 106, 403, 602
148:9-148:13 Overruled | FRCP 32(a)(6); FRE 106, 402, 403, 602, 802 172:3 - 172:10 (Defendant designates only because of in limine ruling on this issue and Plaintiff's | FRCP 32(a)(6); FRE 106, 402, 403, 802 designations on this issue, and reserves all rights on appeal) Overruled 174:22 - 175:4 (ending with “people talk”) (Defendant designates only because of in limine ruling FRCP 32(a)(6); FRE 106 on this issue and Plaintiffs (a)(6) designations on this issue, and reserves all rights on appeal) Overruled 176:12 - 176:17 (ending with | Ep cp 39(a)(6); FRE 106, 403, 602, 802 remember it)
and, here, instead constitutes inadmissible hearsay under Federal Rule of Evidence 802, Compare Fed. R. Evid. 801(d)(2) (excluding from the definition of hearsay an opposing patty’s statement only where the statement is offered against that opposing party). Defendant will respond to this by Letter Brief.
nuant’s Counter: Plaintiff's Objections esignations (Defendant designates only because of in limine ruling on this issue and Plaintiff's designations on this issue, and reserves ali rights on appeal) Overruled 176:19 (starting with “a long time”) — 177:4 (ending with “ohony charge”) (Defendant designates only because of in limine ruling FRCP 32(a)(6); FRE 106, 403, 602, 802 on this issue and Plaintiff's designations on this issue, and reserves all rights on appeal) Overruled 183:13 — 183:23 (ending with “disgrace, also.”) (Defendant designates only because of in limine ruling FRCP 32(a)(6); FRE 106 on this issue and Plaintiff's (MO); designations on this issue, and reserves all rights on appeal) Overruled 185:3 — 187:3 (Defendant designates only because of in limine ruling on this issue and Plaintiff's | FRCP 32(a)(6); FRE 106, 402, 403, 602, 802 designations on this issue, and reserves all rights on appeal) Sustained 191:25 - 192:22 Overruled | FRCP 32(a)(6); FRE 106, 403 210:17-210:19 Sustained | FRCP 32(a)(6); FRE 106 210:22 -210:25 Sustained | FRCP 32(a)(6); FRE 106 215:3-215:19 Sustained | FRCP 32(a)(6); FRE 106, 602