London Luxury LLC v. Walmart Inc.

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
LONDON LUXURY, LLC 	PLAINTIFF/COUNTER-DEFENDANT
V. 	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.
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MOSHE ABEHSERA
Excerpt
No.
Objecting
Party
From 	To 	Basis 	Court’s Ruling
on the Objection
18 	London
Luxury
29:8 	31:05 	Lacks foundation
Assumes facts not in
evidence (29:08- 29:18)
FRE 701
FRE 403
OVERRULED as
to 29:08–29:13;
SUSTAINED as
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 . . .”) (Non-
responsive)
33 	London
Luxury
53:25 	54:16 	Vague
Lacks Foundation
OVERRULED
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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 . . .”) (Non-
responsive)
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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 (97:17-
98:12)
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 (129:06-
129:10)
FRE 403
OVERRULED
86 	London
Luxury
141:8 	142:12 	Vague (141:16-142:12)
FRE 403 (141:16-
142:12)
Assumes facts not in
evidence (141:16-
142:12)
OVERRULED
87 	London
Luxury
142:20 	143:7 	FRE 403 	OVERRULED
88 	London
Luxury
143:12 	144:22 	Vague (143:12-144:10)
Compound (143:12-
144:10)
FRE 403 (143:12-
144:16)
OVERRULED
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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 	Vague
FRE 403
FRE 608
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).)
106A 	Walmart 	174:08 	175:11 	Reputation or Opinion
Evidence (FRE 608(a));
Relevance (FRE 401
and 402)
OVERRULED
(Since Walmart
attacked Mr.
Jason’s character
for (un)
truthfulness, it is
proper under
FRE 608(a) to
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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 (207:16-
208:12)
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 - Non-
Responsive Answer
211:22-212:7 - No
Objection
212:8-214:8 - Non-
Responsive Answer;
Wasting Time (FRE
611(a)); Foundation /
No Personal
Knowledge (FRE
104(b) and FRE 602)
OVERRULED as
to 210:07–
211:21;
SUSTAINED as
to 212:08–214:08
(The testimony
becomes non-
responsive 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.)
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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 	233:18 	Vague
Misstates the exhibit
OVERRULED
148 	London
Luxury
234:12 	235:5 	Vague
Argumentative
OVERRULED
148A 	London
Luxury
235:6 	235:20 	Vague (235:10-235:20)
Argumentative (235:10-
235:20)
Calls for speculation
(235:10-235:20)
OVERRULED
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 - Non-
Responsive Answer;
Wasting Time (FRE
611(a))
OVERRULED
155 	London
Luxury
243:17 	246:23 	Vague (246:09-246:23)
Calls for legal
conclusion (246:09-
246:23)
FRE 802 (244:06-
246:08)
FRE 403
OVERRULED
(The statements
of Ms. Laas, as
sourcing agent
for London
Luxury, are not
hearsay. FRE
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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
OVERRULED
167
168
London
Luxury
257:25
258:15
258:13
258:23
Vague (258:09-258:23)
Lacks foundation
(258:08-258:23)
FRE 403
OVERRULED
169
170
London
Luxury
259:6
159:16
259:11
260:3
Vague
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.)
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192 	Walmart 	286:09 	287:24 	286:9-286:20 - No
Objection
286:21-287:19 - Non-
Responsive 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 non-
responsive)
196
197
London
Luxury
290:18
291:10
291:6
291:17
Vague (290:18-291:06;
291:10-291:17)
Asked and answered
(290:18-291:06)
Misstates facts
(291:10-291:06)
Assumes facts not in
evidence (291:10-
291:17)
FRE 403
SUSTAINED as
to 290:18–291:06
(Non-responsive);
OVERRULED as
to 291:10–291:17
199A 	Walmart 	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;
SUSTAINED as
to 293:25–294:17
(Non-responsive)
202 	Walmart 	295:12 	297:19 	295:12-296:12 - No
Objection
296:13-297:19 - Non-
Responsive Answer;
Wasting Time (FRE
611(a))
SUSTAINED as
to 296:13–297:19
(Non-responsive)
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203 	London
Luxury
297:20 	298:15 	Vague (297:25-298:07)
Assumes facts not in
evidence (298:08-
298:15)
OVERRULED
205 	London
Luxury
299:16 	300:9 	Asked and answered
FRE 403
OVERRULED as
to 299:16–299:20
(through “all the
documents.”);
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 - Non-
Responsive 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 - Non-
Responsive 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 non-
responsive 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 	Lacks foundation
(325:25-236:05)
OVERRULED
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215 	London
Luxury
326:8 	326:24 	Vague
Misstates facts
Assumes facts not in
evidence
OVERRULED
217 	Walmart 	327:05 	328:08 	Non-Responsive
Answer
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 	338:6 	Vague (337:22-228-06)
Lacks foundation
(337:22-338:06)
Assumes facts not in
evidence
SUSTAINED
(FRE 602)
IT IS SO ORDERED on this 24th day of March, 2024.
_______________________________
TIMOTHY L. BROOKS
UNITED STATES DISTRICT JUDGE
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