SIMONDS v. BOYER

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA MARSHA SIMONDS, ) ) Plaintiff, ) 2:21-cv-841 ) v. ) ) CHRISTINE BOYER; and ADAM ) ) THIMONS, ) Defendants. ) )

MEMORANDUM ORDER Before the Court are motions in limine filed by Plaintiff Marsha Simonds (ECF 122), jointly by Defendants Christine Boyer and Adam Thimons (ECF 120; ECF123; ECF 125; ECF 127; ECF 129), and by Defendant Adam Thimons (ECF 131). The parties also filed an amended joint exhibit list containing a chart summarizing proposed exhibits, objections to those exhibits, and responses to objections. ECF 134. The Court issues this omnibus order resolving the motions and ruling on exhibit objections, as follows. I. Ms. Boyer and Mr. Thimons’s motion to exclude Ms. Simonds’s proposed exhibits. Ms. Boyer and Mr. Thimons filed a joint motion in limine, arguing that Ms. Simonds had not sufficiently identified the 44 exhibits she seeks to introduce at trial. ECF 120, p. 2. The Court finds that Ms. Simonds cured this error by sufficiently identifying the proposed exhibits in the joint exhibit list filed at ECF 134. The Court therefore DENIES this motion and addresses each objected-to exhibit’s admissibility below. II. Ms. Simonds’s motion for an in camera hearing. Ms. Simonds seeks an in camera hearing to address potential privilege issues related to Matthew Simonds’s testimony. ECF 122. Ms. Simonds states that Mr. Simonds is a licensed attorney who represented Ms. Simonds and Vera Holdings “during portions of this case.” Id. Ms. Simonds does not elaborate further, only stating that Mr. Simonds’s testimony may be barred due to attorney-client privilege, spousal privilege, and attorney work-product. Id. There are no foundational documents that were submitted showing an attorney-client relationship, such as an engagement letter. Further, Ms. Simonds has submitted several exhibits containing what appear to be communications divulging privileged information, signaling that the privilege may be waived. ECF 134. If Ms. Simonds intends to invoke these privileges, she must establish a foundation for the privileges, as well as an explanation as to any sword-shield issues. Setting all that aside, it is clear from the parties’ exhibits that Mr. Simonds was involved in the course of dealing over the parking-lot disputes, and also in complaining to city officials after the incident at issue. So he will likely be a witness at trial. To avoid unnecessary sidebars at trial, the parties shall at the pre-trial conference proffer the scope of any anticipated testimony as to Mr. Simonds. The Court will thus DENY the motion for a formal in camera hearing, but the parties shall be prepared to address the parameters of Mr. Simonds’s trial testimony at the final pre-trial conference. III. Ms. Boyer and Mr. Thimons’s motion to preclude Ms. Simonds from providing lay testimony regarding medical diagnoses and to limit damages. Ms. Boyer and Mr. Thimons seek to preclude Ms. Simonds’s testimony about her medical diagnosis and asks the Court to limit damages to nominal damages. ECF 123. Ms. Boyer and Mr. Thimons argue that Ms. Simonds has provided no evidence of injury or treatment for an injury resulting from the August 27, 2019, arrest (the event at issue here). Id., p. 1. Ms. Boyer and Mr. Thimons submit that Ms. Simonds may only testify about the “her perception and experience of her arrest.” Id., p. 2. And because Ms. Simonds has provided no evidence of physical injury, “she is only entitled to nominal damages in absence of proof of actual injury.” Id. The Court agrees to a certain extent. As a preliminary matter, opinion testimony by a lay witness is allowed. Under Federal Rule of Evidence 701, a witness, who is not an expert, may testify in the form of an opinion that is “(a) rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” Id. The Third Circuit has reasoned that the “expression of opinions or inferences by a lay witness is permitted because of the qualification in Rule 701(a) that the factual predicate of the testimony be within the witness’s perception and this qualification simply reflects a recognition of the limitation embodied in Federal Rule of Evidence 602, that a witness must have ‘personal knowledge of the matter’ in order to testify to it.” Teen- Ed, Inc. v. Kimball Int’l, Inc., 620 F.2d 399, 403 (3d Cir. 1980) (cleaned up). Ms. Simonds therefore may testify, as a lay witness, about her physical and emotional condition during and after the August 27, 2019, incident, her perceptions of injuries following the incident, and her personal perception of the event. The Court agrees with Ms. Boyer and Mr. Thimons in that that Ms. Simonds may not testify or opine on any sort of specific medical diagnosis, given that that would veer into expert testimony, and there doesn’t seem to be any foundation for that anyway (e.g., medical records and the like). Further, because Ms. Simonds will be allowed to testify about her physical and mental injuries as a lay witness, the Court finds that Ms. Simonds’s damages should not be limited to nominal damages at this juncture. As a result, the Court GRANTS the motion to exclude Ms. Simonds’s testimony about an alleged medical diagnosis, but DENIES the motion in all other respects. IV. Ms. Boyer and Mr. Thimons’s motion to permit examination of Ms. Simonds regarding her prior FLSA violations. Ms. Boyer and Mr. Thimons seek to call Ms. Simonds as a witness and cross- examine her about “conduct underlying her liability of Fair Labor Standards Act (FLSA) violations” in a separate, unrelated case. ECF 125; ECF 126, p. 1. Ms. Boyer and Mr. Thimons argue that this evidence is relevant pursuant to Federal Rule of Evidence 401. This Court disagrees, and finds that this evidence is irrelevant and even if probative, is barred under Rule 403. Under Rule 401, evidence is relevant if “(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” The prior case involved an FLSA violation; evidence of Ms. Simonds’s involvement in a prior action related to FLSA has no bearing on the present causes of action and does not tend to make any material facts more or less probable. Further, even if this evidence were relevant in some manner (perhaps as impeachment), it is barred under Rule 403. The probative value of the evidence is so low, given that to even understand it, one would need to fully understand a completely separate case and credit the factfinder in that case (without a full understanding of the factual record). Relatedly, the prejudice is substantial; this evidence would necessitate a mini-trial and would certainly confuse the jury. It is barred by Rule 403. The Court therefore DENIES the motion to permit examination of Ms. Simonds regarding her prior alleged FLSA violations. V. Ms. Boyer and Mr. Thimons’s motion to exclude Ms. Simonds’s “synced video.” Ms. Boyer and Mr. Thimons seek to exclude a video that Ms. Simonds has proposed as exhibit “P44.” ECF 127; ECF 134. The proposed exhibit purportedly overlays a video of Ms. Simonds’s interaction with Ms. Boyer and a 911 call. ECF 128, p. 1. Defendants’ main objection is lack of authentication—i.e., the video combines multiple videos and a 911 call, and the author of the video was not proffered and the means of creating the video was not provided. Ms. Simonds’s only response is that she can at trial lay a foundation to authenticate the video. The Court agrees with Defendants. Ms. Simonds doesn’t provide any meaningful response to Defendants’ objection, including identifying the person who created the video and confirming that that person was identified in initial disclosures and on Plaintiff’s the witness list.1 There is no basis to authenticate the video. The court therefore GRANTS the motion to exclude Ms. Simonds’s synced video. VI. Ms. Boyer and Mr. Thimons’s motion to exclude irrelevant email threads. Ms. Boyer and Mr. Thimons seek to exclude several emails offered as exhibits by Ms. Simonds on grounds of irrelevance. ECF 129. The Court agrees that several emails are irrelevant and therefore inadmissible. The Court GRANTS in part and DENIES in part the motion to exclude irrelevant email threads. The Court’s rulings—on an email thread-by-email thread basis—are summarized below in the “Rulings” column of the chart in the section concerning objected-to exhibits. VII. Mr. Thimons’s motion to exclude testimony of Attorney Demarco and Commander Baker. Mr. Thimons filed a motion to exclude the testimony of John DeMarco, an attorney, and Eric Baker, a police sergeant. ECF 131. Mr. Thimons submits that neither individual is a party to this case nor had any involvement with matters related to this case. Id., p. 1. Mr. Thimons argues that Ms. Simonds failed to disclose

1 In a response to a separate motion in limine, Ms. Simonds notes that Mr. DeMarco can authenticate the video. ECF 139. While Mr. DeMarco can seemingly authenticate the body cam video (which appears as part of the synced video), he can’t authenticate the synced video itself, which he isn’t alleged to have created. Mr. DeMarco and Mr. Baker during discovery and has not submitted any justification for having done so. Id., p. 2. It appears that Ms. Simonds may seek to call Mr. DeMarco to authenticate body cam footage, but there doesn’t appear to be an objection as to the authenticity of that footage. So the Court sees no basis to otherwise have him testify. Ms. Simonds seeks to call Mr. Baker as a custodian of records and having some knowledge of alleged spoliation of the body cam footage. But she doesn’t represent that Mr. Baker was identified in initial disclosures. The Court is not inclined to allow this testimony, absent some justification from Ms. Simonds for not identifying Mr. Baker. The Court will hold this motion in abeyance, to be further discussed at the final pre-trial conference. VIII. The joint exhibit list and the Court’s rulings. The parties submitted a joint exhibit list that provides a description of each exhibit and the parties’ respective objections and responses to objections. ECF 134. The Court has reviewed the joint exhibit list and the exhibits themselves and has provided a ruling on each exhibit.

Exhibit Exhibit Objection Response Ruling No. Description D1 CAD sheet for Federal Rule of The CAD OVERRULED. August 27, Evidence 106 (computer- aided Admissible if 2019 (911 Call dispatch) is a limited to Recording: complete showing what Boyer), 802, document. This information 1002 document will be Officer admitted for a Thimons knew non- hearsay and its effect on purpose – to him. show the information Parties must known by Officer confer and Thimons and its agree on a effect on him. version of the CAD sheet before final pretrial conference because both parties seek its admission. D2 Matthew Federal Rules of Anna SUSTAINED. Simonds’s Evidence 402, Zaydenburg Inadmissible Complaint in 403 (confusing verified Answer because Matthew the issues), 802 to this irrelevant. Simonds v. Complaint and This concerns a ALJ may be called as separate case. Culbertson, a witness. Also excluded LLC (GD 25- under Rule 001048) This exhibit is 403. Even if relevant to the relevant, First unduly Amendment prejudicial as it Retaliation will lead to a claim against mini trial and Ms. Boyer. confuse the jury. D3 Vera Holdings, Federal Rules of Anna SUSTAINED. LLC’s Answer Evidence 402, Zaydenburg Inadmissible and New 403 (confusing verified Answer because Matter in the issues), 802 and may be irrelevant. Matthew called as a Simonds v. ALJ witness. This concerns a Culbertson, separate case. LLC This exhibit is Also excluded (GD 25-001048) relevant to the under Rule First 403. Even if Amendment relevant, Retaliation unduly claim against prejudicial as it Ms. Boyer. will lead to a mini trial and confuse the jury. P1 Thread of Federal Rules of Not offered for OVERRULED. Emails Evidence 802 truth, but course Emails are between Ms. (hearsay), 401 of conduct for relevant and Simonds, (relevance), and Plaintiff in not hearsay as Cmdr. 403 (confusing calling the they go to Hermann, and to the jury); and police. course of Mr. Simonds 901 dealings, not on October 3, (annotations are Not remote in truth of matter. 2018. not time; less than Ms. Simonds authenticated) one year before can the incident authenticate. which has been If the a continuous highlighting issue in the was placed timeframe. there by counsel, then If the replace with annotations clean version. refer to the highlighting, that is to highlight the actual email as opposed to the warnings, disclaimers, addresses, etc. happy to replace with a clean version. P2 Marsha Federal Rules of Offered, if OVERRULED; Simonds Email Evidence 802 needed, to given that it is To Atty Roy (hearsay), 401 refresh limited to only Leonard and (relevance), and recollections. being used to Attorney 403 (confusing refresh Leonard to the jury); and Not remote in recollection. response on 901 time; less than August 31, (annotations are one year before 2018. not the incident authenticated) which has been a continuous issue in the timeframe. P3 January 25, Federal Rules of Not offered for OVERRULED. 2018-February Evidence 802 the truth but for Emails are 2, 2018 email (hearsay), 401 notice to, inter relevant and thread between (relevance), and alia, Boyer’s not hearsay as Ms. Simonds, 403 (confusing manager at the they go to Cmdr. to the jury); and county and, if course of Hermann, and 901 needed, to dealings, not Angharad (annotations are refresh truth of matter. Stock. not recollections. Ms. Simonds authenticated) can Not remote in authenticate. time; but If the showing the highlighting continuous issue was placed in the timeframe there by and specifically counsel, then relevant to the replace with existence of first clean version. amendment protected activities.

If the annotations refer to the highlighting, that is to highlight the actual email as opposed to the warnings, disclaimers, addresses, etc. happy to replace with a clean version. P4 Email thread Federal Rules of Not offered for OVERRULED, between Ms. Evidence 802 the truth but to if offered solely Simonds and (hearsay), 401 refresh to refresh Cmdr. (relevance), and recollection. recollection. Hermann 901 Alternatively, Otherwise, this between (annotations are Rule 803(1), (5) is hearsay and August 27- not provide goes directly to 28(?), 2025, RE: authenticated) exceptions to the truth of the Detailed Rule 802. matter at issue description of in the case. what happened If the annotations mean the highlighting, this is to identify dates and participants. Happy to replace with a clean version.

We tried to only show the relevant portions for exhibit purposes but can include all 13 pages if necessary. P5 Thread of Federal Rules of Not offered for OVERRULED. emails between Evidence 802 truth, but to Emails are Ms. Simonds (hearsay), 401 show course of relevant and and Cmdr. (relevance), and conduct in not hearsay as Hermann on 403 (confusing Plaintiff calling they go to August 23, to the jury and the police, and course of 2019. cumulative), her actions once dealings, not and 901 the police truth of matter. (annotations are arrived. Ms. Simonds not can authenticated). We can provide authenticate. clean copies if If the This exhibit needed. The highlighting contains the annotations (if was placed Court Order highlights) track there by which is already the dates and counsel, then a joint exhibit. recipients. replace with It also includes clean version. two copies of the Plaintiff was August 23, 2019 erring on the email from Ms. side of Simonds. “complete” as opposed to duplicative. We are happy to exclude the attachments to the main email/stipulate that those attachments are elsewhere in the record. P6 Marsha Regarding page Rule 803(1), (6), OVERRULED. Simonds CAD 1 of this (8) Parties must sheet document, provide agree on a Defendants exceptions to version of the object under Rule 802. CAD sheet to Federal Rules of admit as an Evidence 802 Whether Officer exhibit prior to (hearsay), 401 Thimons “was final pre-trial (relevance), and unaware” and conference. 403 (confusing did not have to the jury) access to this information is a Specifically, it is credibility not relevant question for the under Rule 401, jury. A jury because Officer could determine Thimons was that Officer unaware that Thimons did Ms. have this Simonds called information 911 and did not and/or access have access to thereto since it this information. is facially part of the law The remaining enforcement two pages of P6 communications are Ms. Boyer’s network. 911 call, which Defendants seek We can agree to to admit as mutually Exhibit D1, and withdraw our Plaintiff has objections (since objected to. the exceptions work the same the Boyer call). P7 August 27-28, Federal Rules of This is not SUSTAINED. 2019, thread of Evidence 802 hearsay because The emails that emails between (hearsay), 401 it is not an concern Mr. Simonds, (relevance), and assertion, it is a litigation holds Cmdr. 403 (confusing question. It is and Hermann and to the jury); and not offered for preservation Attorney Todd 106 (does not the truth but for notices are Hollis show complete notice to, inter irrelevant, and email exchange; alia, Ms. Boyer’s may not be indicates it is management of used. To the page 1 of 6) the potential for extent that litigation Plaintiff lays a This e-mail also against her. foundation that contains any witness attorney - client This is not who received a privileged remote in time, hold notice information it is within a day engaged in between Mr. of the events of some type of Simonds and this lawsuit, and spoliation, then Attorney Hollis. prior to the Plaintiff may filing of charges. use the email notice to These are not impeach. attorney client communications; the information was simply forwarded to Attorney Hollis but included numerous other people. Further, Defendants do not have standing to raise ACP. P8 February 2018- Federal Rules of Not offered for OVERRULED. October 3, 2018 Evidence 802 the truth but to Emails are email thread (hearsay), 401 show ongoing relevant and between (relevance), and and updated not hearsay as Plaintiff, her 403 (confusing notice and they go to attorneys, Mr. to the jury and course of course of Simonds, Court cumulative); conduct. dealings, not Administration and 901 truth of matter. and Cmdr. (annotations are Not remote in Ms. Simonds Herman not time; less than can authenticated). one year before authenticate. the incident If the This exhibit which has been highlighting contains a continuous was placed numerous e- issue in the there by mail threads, timeframe. counsel, then some of which replace with are duplicative As to page 17 clean version. of other (the October 4, exhibits. It also 2018 email) the contains top portion can attorney- client be redacted. privileged Pursuant to information Rule 502(D), we between will claw it back Matthew otherwise. Simonds and Attorney Roy Leonard. P9 January 23, Federal Rules of Not entirely OVERRULED. 2018, Email Evidence 802 hearsay because Emails are Thread (hearsay), 401 it is a mix of relevant and between Mr. (relevance), and questions and not hearsay as Simonds and 403 (confusing demands. they go to Court to the jury). course of Administration Not offered for dealings, not the truth but to truth of matter. provide notice to Ms. Simonds management of can ongoing issues authenticate. which form the If the basis and course highlighting of conduct of was placed first amendment there by protected counsel, then activities. replace with clean version. Not remote in time; less than one year before the incident which has been a continuous issue in the timeframe. P10 8-27-19 Matt Federal Rules of Not offered for SUSTAINED. Email to Stock Evidence 802 truth but to The emails that Re: Litigation (hearsay), 401 show notice and concern Hold (relevance – it ongoing First litigation holds was sent after Amendment and this incident protected preservation occurred), and activities. notices are 403 (confusing irrelevant, and to the jury). Not remote in may not be time, this is used. To the within one day extent that, of the Plaintiff lays a incident. foundation that any witness who received a hold notice engaged in some type of spoliation, then Plaintiff may use the email notice to impeach. P11 9-9-19 Email Federal Rules of Not entirely SUSTAINED. Thread Re: Evidence 802 hearsay because The emails that Preservation (hearsay), 401 it is a mix of concern Report Request (relevance – it questions and litigation holds to City of was sent after demands. and Pittsburgh this incident Not offered for preservation occurred), and truth but to notices are 403 (confusing show notice and irrelevant, and to the jury). ongoing First may not be Amendment used. To the protected extent that activities Plaintiff lays a predating foundation that Plaintiff being any witness charged. who received a hold notice Not remote in engaged in time. Less than some type of 2 weeks from the spoliation, then incident and Plaintiff may specifically use the email related thereto. notice to impeach. P12 January, 25-26- Federal Rules of Not offered for OVERRULED. 2018 Email Evidence 802 truth but to Emails are thread between (hearsay), 401 show notice of relevant and Court (relevance), 403 ongoing first not hearsay as Administration (confusing to the amendment they go to and Mr. jury), and 901 protected course of Simonds (annotations are activities. dealings, not not truth of matter. authenticated). Alternatively, Ms. Simonds this may be used can for refreshing authenticate. recollection. If the highlighting Not remote in was placed time; but there by showing the counsel, then continuous issue replace with in the timeframe clean version. and specifically relevant to the existence of first amendment protected activities.

Can provide a clean copy if desired. This highlights the difference between this and other exhibits which contains earlier portions of the email thread. P13 11-16-17 Matt Federal Rules of Not offered for OVERRULED. Email to Stock Evidence 802 truth but to Emails are on Parking Lot (hearsay), 401 show notice of relevant and Use, And a (relevance), 403 ongoing First not hearsay as Copy of (confusing to the Amendment they go to November 15, jury and protected course of 2017 Letter cumulative), activities. dealings, not attachment 901 truth of matter. (annotations are Alternatively, Ms. Simonds not this may be used can authenticated). for refreshing authenticate. recollection. If the This exhibit highlighting appears to be Not remote in was placed duplicative of a time; but there by portion of P14. showing the counsel, then See Fed. R. continuous issue replace with Evid. 106. in the timeframe clean version. and specifically relevant to the existence of first amendment protected activities.

Can provided clean copy but these highlights are regarding the date and recipients.

P14 November Federal Rules of Not offered for OVERRULED. 2017–Jan. 5, Evidence 802 truth but to Emails are 2018 Email (hearsay), 401 show notice of relevant and thread between (relevance), and ongoing first not hearsay as Mr. Simonds 403 (confusing amendment they go to and A. Stock to the jury). protected course of activities. dealings, not Alternatively, truth of matter. this may be used Ms. Simonds for refreshing can recollection. authenticate. If the Not remote in highlighting time; but was placed showing the there by continuous issue counsel, then in the timeframe replace with and specifically clean version. relevant to the existence of First Amendment protected activities. P15 Case Calendar Federal Rules of Not hearsay as SUSTAINED. Event Evidence 802 there are no Irrelevant, and Summary with (hearsay), 401 assertions. Rule even if relevant handwriting (relevance), 403 803(6), (8) in some (confusing to the provide manner, too jury), and 901 exceptions to confusing to (annotations are Rule 802. the jury, so not excluded under authenticated). Can provide a Rule 403. clean copy. Annotations to zero in on the relevant area. P16 8-27- 2019 Federal Rules of Not hearsay SUSTAINED. Emails from Evidence 802 since this is a The emails that Mr. Simonds (hearsay), 401 request not an concern RE: Footage (relevance – it assertion. litigation holds Preservation was sent after and Email the incident Not remote in preservation occurred), 403 time, this is notices are (confusing to the within a day of irrelevant, and jury), and 106 the incident. may not be (there is no used. To the indication of Agreed this is extent that who this email incomplete. Will Plaintiff lays a was sent to; it supplement foundation that appears to be a under Rule 106. any witness part of a larger who received a thread). hold notice engaged in some type of spoliation, then Plaintiff may use the email notice to impeach. P17 8-27-19 Axon Federal Rules of Not offered for OVERRULED Body 2 Photo of Evidence 802 the truth, but for (provisionally). Phone (hearsay), 401 notice of ongoing But Plaintiff (relevance), and parking lot shall be 403 (confusing issues prior to prepared to to the jury). charges being provide a better filed and proffer at the contextualizing pre-trial the BWC (from conference. which this is taken). P18 November 16, Federal Rules of Not offered for OVERRULED. 2017- February Evidence 802 the truth, the Emails are 12, 2018 Email (hearsay), 401 exhibit contains relevant and thread between (relevance), 403 requests as not hearsay as Mr. Simonds, (confusing to the opposed to they go to and A. Stock Re jury and assertions. Rule course of 5-2-36 Lot Use cumulative), 803(3) provides dealings, not and 901 exceptions for truth of matter. (annotations are plans Ms. Simonds not (“Furthermore can authenticated). Vera Holdings is authenticate. If not willing…at the This exhibit this time and highlighting appears to be a will proceed with was placed portion of P13 closing the there by and P14 and/or lot…”). May also counsel, then duplicative of be used to replace with P13 and P14. refresh clean version. recollections.

Not remote in time; but showing the continuous issue in the timeframe and specifically relevant to the existence of first amendment protected activities. Can provide a clean copy. The highlights were for things like date and recipients.

This is not duplicative since it expands on (via replies to) P13/14. P19 1-25-18 Marsha Federal Rules of Rule 803(2) OVERRULED. email to Stock Evidence 802 provides Emails are Re Parking Lot (hearsay), 401 exception for relevant and (relevance), 403 Rule 802. not hearsay as (confusing to the (“…both of us they go to jury), 901 are in absolute course of (annotations are shock.”). dealings, not not truth of matter. authenticated). Not remote in Ms. Simonds time; but can showing the authenticate. If continuous issue the in the timeframe highlighting and specifically was placed relevant to the there by existence of first counsel, then amendment replace with protected clean version. activities.

Can provide a clean copy if deemed necessary. P20 12-23-19 Federal Rules of Agree this is SUSTAINED. DeMarco and Evidence 802 incomplete. Will Irrelevant. Todd Emails (hearsay), 401 supplement (relevance), 403 under Rule 106 (confusing to the and potentially jury), and 106 concede on (this email has a cut off initial relevance email from grounds. Attorney Demarco at the beginning of the thread).

Additionally, please see Defendants’ Motion in Limine and Brief in Support at ECF Nos. 131, 132. P21 8-27-19 Federal Rule of Only to refresh OVERRULED, Williams Evidence 802 recollection as subject to only Supplemental (hearsay) needed. being used to Report refresh recollection. P22 9-18-19 Matt Federal Rules of Only to refresh OVERRULED, Email to Todd Evidence 802 recollection as subject to only Re Charges (hearsay), 401 needed. being used to (relevance), 403 refresh (confusing to the recollection.. jury), and 106 (this exhibit appears to have a cut off email from Mr. Simonds at the bottom).

This exhibit also contains attorney- client privileged information between Mr. Simonds and Attorney Hollis. P23 12-21-19 Todd Federal Rules of Agree this is SUSTAINED. Email to Evidence 802 incomplete. Will Irrelevant Demarco Body (hearsay), 401 supplement Cam Photos (relevance), 403 under Rule 106 (confusing to the and potentially jury), 901 concede on (annotations are relevance not grounds. authenticated); 106 (incomplete).

This exhibit also contains irrelevant photos. Additionally, it contains discussion of litigation strategy between Attorney Hollis and Attorney Perlow.

Finally, please see Defendants’ Motion in Limine and Brief in Support at ECF Nos. 131, 132. P24 12-19-19 Todd Federal Rules of Only to refresh OVERRULED, Email to Leslie Evidence 802 recollection as subject to only Re Discovery (hearsay), 401 needed. being used to Request (relevance), 403 refresh (confusing to the Rule P25 is the recollection jury); and 106 second page of (this email P24. thread says it is page 1 of 2, but 2 is not included). Additionally, this exhibit contains discussion of litigation strategy between Attorneys Hollis and Perlow. P25 2-16-20 Todd Federal Rules of Only to refresh OVERRULED, Discovery Evidence 802 recollection as subject to only Request Email (hearsay), 401 needed. being used to (relevance), 403 refresh (confusing to the Rule P24 is the recollection jury); and 106 first page of P25. (this is an incomplete email with one line of text and a signature block). P26 8-27-19 Federal Rules of Officer Thimons OVERRULED. Thimons Evidence 802 reports are Rule Investigative (hearsay). opposing party 803(8)(A)(iii). Report statements. Additionally, This purports to Plaintiff but not the statements be Officer Thimons can use within the Thimons’ report, them. report are by but contains the Officer SRR from We can provide Thimons or Michael Burns. clean copies if based on his deemed personal Plaintiff necessary. knowledge. objected to the See Rule inclusion of this 801(2)(c). And on Defendants’ for the exhibit list and statements by it was removed. witnesses in the report, those statements appear to go to Officer Thimons’s knowledge and his reaction, not to the truth of the matter. P27 12-21-19 Todd Federal Rules of Only to refresh OVERRULED, Email to Evidence 802 recollection as subject to only DeMarco Re (hearsay), 401 needed. being used to Commonwealth (relevance), 403 refresh v. Simonds (confusing to the recollection jury); and 106 (this thread says it is page 1 of 4, but only 1 page is provided). P28 9-3-19 Merkle Gen. Objs. 2, Rule SUSTAINED. Supplemental Fed. R. Evid. 803(8)(A)(iii) While the Report Follow 802 (Hearsay) provides a Rule report itself Up with Boyer 802 exception. may not be Also can be used hearsay, it to refresh contains recollection. “hearsay within hearsay” of other witnesses’ statements in which the officer otherwise did not have personal knowledge. No hearsay exception has been proffered for those statements. P29 PGH Police Federal Rules of This is a picture SUSTAINED. Plate Photo Evidence 401 of a police Plaintiff has (relevance) and vehicle in the not provided a 901 parking lot at sufficient (authentication). issue. The proffer as to foundational relevance or There is no information who would information on would be authenticate when this photo presented by a the photo. was taken, who witness at trial. took it, or how it relates to any issue in this case. P30 8-29-25 Todd Federal Rules of Only to refresh OVERRULED, Email to Evidence 802 recollection as subject to only Emergency (hearsay), 401 needed. being used to Services (relevance), 403 refresh (confusing to the recollection jury); and 106 (this thread says it is page 1 of 2, but only 1 page is provided). P31 1-6-20 Todd Federal Rules of Only to refresh OVERRULED, Email to Evidence 802 recollection as subject to only DeMarco Re (hearsay), 401 needed. being used to Dash Cam (relevance), 403 refresh Videos (confusing to the recollection jury); and 106 (this appears to be the middle of a thread of . emails, with multiple emails cut off. It says it is page 2/6, but only 1 page is provided).

Additionally, please see Defendants’ P32 12-20-19 Leslie Federal Rules of Only to refresh OVERRULED, Email to Todd Evidence 802 recollection as subject to only Re (hearsay), 401 needed. being used to Preservation (relevance), 403 refresh Request Folder (confusing to the recollection jury); and 106 (this thread says it is page 1 of 7, but only 1 page is provided). P33 8-27-19 Burns Federal Rules of We can remove OVERRULED. Supplemental Evidence 802 page 2. It looks Rule Report (hearsay) and like an errant 803(8)(A)(iii). 902 note. Officer’s (annotations are recitation also not all appears to authenticated). be based on personal knowledge. To the extent there are witness statements, those appear not to be proffered for truth of matter, but knowledge and reaction of the officers. P34 12-23-19 Todd Federal Rules of Agree this is SUSTAINED. Email to Evidence 802 incomplete. Will Irrelevant. DeMarco on (hearsay), 401 supplement Appearance (relevance), 403 under Rule 106 (confusing to the and potentially jury); and 106 concede on (this thread relevance says it is page 4 grounds. of 4, but only 1 page is provided).

Additionally, please see Defendants’ Motion in Limine and Brief in Support at ECF Nos. 131, 132. P35 8-27-19 Not included on Not included on OVERRULED. Thimons joint exhibit list joint exhibit list Dispatch but submitted to but submitted to Report the Court. the Court. P36 1-6-20 DeMarco Federal Rules of Not offered for SUSTAINED. Email to Todd Evidence 802 truth, but to Irrelevant. Re Dash Cam (hearsay), 401 show chain of Videos (relevance), 403 custody and (confusing to the course of jury); and 106 conduct through (this thread Defendant’s says it is page 1 commander. of 6, but only 1 Thus, not remote page is in time. provided). “Quoted text Additionally, hidden” is the please see previous email Defendants’ in the thread at Motion in the top of the Limine and page. Brief in Support P37 1-6-20 DeMarco Federal Rules of Not offered for SUSTAINED. Email to Todd Evidence 802 the truth but as Irrelevant. Re Merkle (hearsay), 401 additional Footage (relevance), 403 evidence under (confusing to the Rule 1004 (Mr. jury); and 106 DeMarco’s (this thread description of says it is page 3 the video), and of 6, but only 1 the silence in the page is face of Mr. provided). Hollis’ observation Additionally, regarding the please see expectation of Defendants’ footage from the Motion in camera which Limine and was turned on. Brief in Support at ECF Nos. Agree to 131, 132. supplement under Rule 106. P38 8-27-19 Merkle Federal Rule of The photos Photos: There Supplemental Evidence 802 should be does not appear Report (hearsay). separate from to be an the report. objection to the This document photos. purports to be Sgt. Merkel’s Supplemental supplemental Report: report (which is SUSTAINED. on page 10 and There are 11), but it also witness contains statements numerous that are photos that are hearsay within not part of the hearsay. report. P39 Burns Subject Not included on Not included on OVERRULED. Resistance joint exhibit list joint exhibit list Report but submitted to but submitted to the Court. the Court. P40 8-27-19 Federal Rules of Rule 803(3), OVERRULED. Williams Evidence 802 (8)(A)(iii) Rule 803(8). Narrative (hearsay); 106 provide Report (incomplete exceptions to police report); Rule 802. Can be and 901 used to refresh (annotations are or impeach as not appropriate. authenticated). A clean copy can be provided if deemed necessary

This appears to be complete. P41 8-29-19 Vehicle This document The BWC photo OVERRULED Photos purports to be is inadvertent (provisionally). vehicle photos, for this exhibit. But Plaintiff but it also shall be contains a prepared to screenshot from The objections provide a better Liz Merkel’s were addressed proffer at the BWC, and in P17. pre-trial the document conference. depicted is inadmissible hearsay.

There is no information on when these photos were taken, who took them, or how it relates to any issue in this case P42 Prelim Federal Rule of Rule 803(6) SUSTAINED, Transcript Evidence 802 provides an due to not Invoices (hearsay). exception to being produced Rule 802. in discovery. These were not provided in This exhibit discovery. Ms. would Simonds was supplement that asked about a answer. calculation of damages in her interrogatories and mentioned “legal expenses,” without a calculation or description. P43 Gillespie Federal Rule of Mr. Gillespie SUSTAINED. Transcript Pgs. Evidence 802 will be testifying No basis 9-26 (hearsay). live. This would provided for not be an exhibit allowing in that event. testimony from another proceeding to be admitted. P44 8-27-19 Audio Federal Rules of Plaintiff will SUSTAINED; Visual Evidence 403 respond to the for reasons Surveillance (confusing for motion when it provided in Video + 911 the jury; is filed. resolving Call Overlay prejudicial) and Generally, motion in 901 foundation can limine. (authentication). be laid at trial. It is unclear what Please see the Rule 403 Defendants’ basis is at this Motion in time. Limine and Brief in Support at ECF Nos. 127, 128.

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Dated: October 8, 2025 BY THE COURT:

/s/ J. Nicholas Ranjan United States District Judge