Oleksandr Panchenko v. Comenity Capital Bank

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 OLEKSANDR PANCHENKO, Case No. 23-cv-04965-EKL

8 Plaintiff, ORDER REGARDING OBJECTIONS 9 v. TO DEPOSITION DESIGNATIONS

10 COMENITY CAPITAL BANK, Defendant. 11

12 13 The parties have designated deposition testimony from various witnesses for presentation 14 at the jury trial in this matter. See Appendix A, Deposition Designations (“App. A”).1 Due to the 15 parties’ commendable meet-and-confer efforts, few objections remain. This Order addresses 16 Comenity’s outstanding objections to Panchenko’s designations of Comenity witness testimony. 17 The witnesses at issue are Comenity employees who investigated Panchenko’s identity theft 18 disputes. For the following reasons, Comenity’s objections are SUSTAINED in part and 19 OVERRULED in part. 20 1. Pavithra S Designations 21 Comenity objects to this witness generally on the following grounds: 22 This witness handled a dispute code 01 and their testimony regarding any process or procedure for dispute code 103 and ACDV with dispute code 103 is speculative. The 23 testimony lacks foundation and risks misleading or confusing the jury. Investigator 24 Pavithra S’s responsibilities and expected number of daily investigations is unrelated to fraud investigators and their reasonable review. 25 26 App. A at 1. The general objections are OVERRULED. 27 1 The Court finds that the designated testimony is not speculative, does not lack foundation, 2 and is not likely to be more prejudicial than probative. The designated testimony, including 3 counter-designations by Comenity, reflects that the witness handled a “dispute code 01” – that is, 4 Panchenko’s dispute that the account was not his. See, e.g., Pavithra S Tr. 13:7-21, 15:1-25, 5 20:19-21:10, 40:3-21, 45:8-21. The witness testified that fraud disputes are handled by a different 6 team, which addresses Comenity’s concern that the jury might conclude that the witness’s 7 testimony relates to fraud disputes. See id. 48:1-13, 63:19-64:19. Additionally, Panchenko no 8 longer designates testimony regarding the witness’s number of daily investigations, so this 9 objection is moot. See id. 28:21-25, 29:8-30:18 (testifying to Comenity’s reward system for 10 meeting targets, but not the target number of accounts to be processed). 11 However, Comenity’s objection to the testimony at transcript pages 53:21-54:13 is 12 SUSTAINED. The questions at issue asked the witness a hypothetical question: Whether the 13 witness would “look into a customer disputing an address as fraud” when processing an ACDV. 14 But, as noted above, the witness does not handle fraud-related disputes. Given the witness’s lack 15 of personal knowledge regarding the process for handling fraud disputes, the testimony is 16 inadmissible, and it is substantially more prejudicial than probative. See Fed. R. Evid. 403, 602. 17 Additionally, this testimony is needlessly cumulative because other witnesses who do handle fraud 18 disputes testified to Comenity’s process for handling disputes about a fraudulent address. See, 19 e.g., Banu Tr. 32:2-10, 53:21-54:7. 20 2. Arshiya Banu Designations 21 Comenity’s objection to the testimony at transcript pages 65:13-66:20 is SUSTAINED. 22 The testimony at issue concerns trial exhibit 37, which relates to an application for the disputed 23 Comenity account. The questions asked the witness about a name that appears on the document – 24 Anton Postoroniuk – and whether it would factor into the witness’s investigation of a dispute if 25 she “knew that a different person submitted the application.” Banu Tr. 65:19-20. These questions 26 lack foundation that the name Anton Postoroniuk was on the credit application, and that the 27 application was submitted by someone other than Panchenko. Moreover, during examination by 1 document, or whether the application itself included that name. Id. 81:1-82:2. Accordingly, the 2 witness lacks personal knowledge to testify to this matter. Fed. R. Evid. 602. 3 3. J Elizabeth Rani Designations 4 Comenity first objects to the testimony at transcript pages 35:22-36:21. This objection is 5 OVERRULED. The testimony at issue concerns trial exhibit 37, which relates to an application 6 for the disputed Comenity account as discussed above. The witness testified that this document 7 reflects information from “Snap,” which includes details about a customer’s application for a 8 credit account. Rani Tr. 32:24-34:1. Here, unlike with the questioning of Arshiya Banu, 9 foundation was established (i.e., the witness identified the information as coming from Snap). 10 Additionally, the questions are not misleading because they ask why the name Anton Postoroniuk 11 would be “referenced within Snap” rather than within the credit application itself. Id. 35:22- 12 36:12. The witness testified to possible reasons why another name would appear within Snap. 13 The Court does not find this testimony to be misleading. To the extent Comenity believes that the 14 question called for speculation, that objection was not made at the deposition, thus it is waived. 15 Fed. R. Civ. P. 32(d)(3)(B); see also in re Stratosphere Corp. Sec. Litig., 182 F.R.D. 614, 618 (D. 16 Nev. 1998). 17 Next, Comenity objects to the testimony at transcript pages 53:3-56:20. This objection is 18 SUSTAINED in part as to 55:18-56:20. This questioning relates to a police report, and the 19 witness testified repeatedly that she had not seen the report before. Therefore, the witness lacks 20 personal knowledge to testify to this matter. Fed. R. Evid. 602. The testimony is also cumulative 21 because other testimony addresses Comenity’s process for reviewing police reports in connection 22 with a fraud dispute. See Fed. R. Evid. 403. However, the objections to 53:3-55:17 are 23 OVERRULED. The questions at issue do not pose “misleading hypotheticals,” as Comenity 24 argues. Rather, the questions ask the witness generally about whether and how the witness 25 determines the accuracy of information in third-party systems, and how a consumer could 26 demonstrate that information is inaccurate. 27 Finally, Comenity’s objection to the testimony at transcript pages 58:7-60:2 is 1 foundation, that a police report was part of the record in the dispute she reviewed (which is 2 || factually inaccurate). This testimony is substantially more prejudicial than probative. Fed. R. 3 Evid. 403. By contrast, the objection to the testimony at 59:12-60:2 is OVERRULED because the 4 || questions clarify that the police report was related to a different dispute, and the witness testified 5 generally to whether checking information in a police report was part of the investigation process. 6 4. Poojitha Kadaresh Designations 7 Comenity’s objection to the testimony at transcript page 52:3-23 is SUSTAINED. The 8 testimony at issue relates to trial exhibit 37, which reflects information from Snap, as discussed 9 ||} above. The questions asked the witness why the name Anton Postoroniuk was on “the 10 || application” for the account opened in Panchenko’s name. The questions lack foundation that the 11 name was “on the application.” Additionally, the witness testified that she was not sure whether 12 || “someone would have typed this [name] in to the application,” or why the name was referenced in 13 the application. Kadaresh Tr. 52:14-23. Accordingly, the witness lacks personal knowledge to 14 || testify to this matter. Fed. R. Evid. 602. 3 15 IT IS SO ORDERED. 16 Dated: October 31, 2025

18 umi K. Lee 19 United States District Judge 20 21 22 23 24 25 26 27 28