LEGAL_US_W # 91806882.3
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TARGET’S OBJECTIONS TO
DECLARATION OF DAVID G. SPIVAK
U.S.D.C., C.D. CAL., NO. 5:17-CV-00155-ODW-SP
JEFFREY D. WOHL (Cal. State Bar No. 096838)
JULLIE Z. LAL (Cal. State Bar No. 279067)
ANDREA B. DICOLEN (Cal. State Bar No. 305555)
PAUL HASTINGS LLP
101 California Street, 48th Floor
San Francisco, California 94111
Telephone: (415) 856-7000
Facsimile: (415) 856-7100
jeffwohl@paulhastings.com
jullielal@paulhastings.com
andreadicolen@paulhastings.com
Attorneys for Defendant
Target Corporation
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
NEDA FARAJI, on behalf of herself and
all others similarly situated, and as an
“aggrieved employee” on behalf of other
“aggrieved employees” under the Labor
Code Private Attorneys General Act of
2004,
Plaintiff(s),
vs.
TARGET CORPORATION, a Minnesota
corporation; and DOES 1 through 50,
inclusive,
Defendant(s).
No. 5:17-cv-00155-ODW-SP
DEFENDANT TARGET
CORPORATION’S OBJECTIONS TO
AND MOTION TO STRIKE
DECLARATION OF DAVID G.
SPIVAK SUBMITTED IN SUPPORT
OF PLAINTIFF’S MOTION FOR
CLASS CERTIFICATION
Date: January 19, 2018
Time: 10:00 a.m.
Courtroom: 5D, First Street
Courthouse
350 W. 1st St., 5th Flr.
Los Angeles, CA 90012
Judge: Hon. Otis D. Wright II
Complaint filed: November 28, 2016
Trial date: None Set
Case 5:17-cv-00155-ODW-SP Document 70 Filed 11/01/17 Page 1 of 31 Page ID #:4981
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LEGAL_US_W # 91806882.3
TARGET’S OBJECTIONS TO
DECLARATION OF DAVID G. SPIVAK
U.S.D.C., C.D. CAL., NO. 5:17-CV-00155-ODW-SP
I. INTRODUCTION
Defendant Target Corporation (“Target”) submits the following evidentiary
objections to the Declaration of David Spivak in Support of plaintiff Neda Faraji’s
Motion for Class Certification, lodged as ECF 49-3.
Target respectfully requests that the Court sustain its objections, and exclude
and/or strike as inadmissible specific portions of the Spivak Declaration, as set forth in
section II below. C.D. Cal. Civil L.R. 7-7 (“Declarations shall contain only factual,
evidentiary matter and shall conform as far as possible to the requirements of F.R.Civ.P.
56(c)(4).”); see also United States v. Dibble, 429 F.2d 598, 601-02 (9th Cir. 1970)
(improper declarations are subject to a timely objection and may be stricken). As
detailed below, the Spivak declaration is replete with argument, not statements of fact
(Mr. Spivak argues what the evidence shows, instead of saving that for his memorandum
in support of plaintiff’s motion); hearsay (he characterizes what witnesses say and
documents show, rather than just relying on the testimony and documents themselves);
conclusions that lack foundation (he opines what Target intended); and other
objectionable and inadmissible matters.
II. TARGET’S OBJECTIONS TO DECLARATION OF DAVID G. SPIVAK
SPIVAK DECLARATION
Testimony Objections
1. “On April 12, 2017, this Court
implicitly acknowledged that class
certification could depend on the
existence of questions about whether
the executive team leader in asset
protection (“ETL-AP”) job duties are
exempt or not. Ex. 6, 6:15-22
(“Plaintiff must obtain class
members’ contact information,
communicate with the estimated
3,391 members, and conduct
interviews with a statistically
significant and representative sample
about eighty-three different job duties
Improper legal argument. The declarant’s
statements are legal arguments, not facts.
Arguments are not the proper subject of a
declaration.
Lacks foundation, conclusory,
speculation (Fed. R. Evid. 702, 901). The
declarant’s statements regarding what the
Court allegedly “implicitly acknowledged”
and the Court’s supposed intention are
taken out of context and are speculative
mischaracterizations. In fact, the Court did
not opine on the merits of plaintiff’s theory
of the case and did not acknowledge that
certification could depend on the existence
Case 5:17-cv-00155-ODW-SP Document 70 Filed 11/01/17 Page 2 of 31 Page ID #:4982
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LEGAL_US_W # 91806882.3
-2-
TARGET’S OBJECTIONS TO
DECLARATION OF DAVID G. SPIVAK
U.S.D.C., C.D. CAL., NO. 5:17-CV-00155-ODW-SP
SPIVAK DECLARATION
Testimony Objections
to determine whether Defendant
mischaracterized the duties it
assigned to all class members as
exempt.”). Despite the Court’s Order,
Defendant refused to produce the
names and contact information of the
putative class members. On April 17,
2017, Plaintiff filed an Ex Parte
Application for an Order for
Defendant Target Corporation to
Provide Putative Class Members’
Contact Information based on the
arguments stated in Plaintiff’s
Memorandum of Points and
Authorities. On April 28, 2017, this
Court found that Plaintiff made a
prima facie showing that “the class
contact information will enable
plaintiff to contact class members to
gather evidence to show
commonality and predominance,
among the other elements.” Id., Ex. 7,
p. 7.
. . .
Accordingly, the Court ordered
Defendant to produce to Plaintiff the
names, addresses and telephone
numbers of the ETL-APS for the
period of November 28, 2012 to the
present. Id.” Spivak Decl., ¶ 9.
of questions about whether ETL-AP job
duties are exempt.
Inadmissible hearsay (Fed. R. Evid. 801).
The declarant’s characterizations of the
Court’s April orders are inadmissible
hearsay. The orders speak for themselves.
Irrelevant and immaterial (Fed. R. Evid.
401). The nature of prior discovery
disputes between the parties is irrelevant to
the issue of whether there is a common
policy or practice, or whether Target is
liable for a wage-and-hour violation that
gives rise to class certification.
2. “Defendant’s Director of Employee
Relations Michael Brewer testified
that, to his knowledge, this is a list of
information of the ETL-APs
Defendant employed since November
28, 2012 that it prepared in response
to Plaintiffs request. See, infra, ¶ 16,
MB, 194:5-19.” Spivak Decl., ¶ 13.
Inadmissible hearsay (Fed. R. Evid. 801).
The declarant’s statement regarding what
Michael Brewer testified is inadmissible
hearsay, given that Mr. Brewer’s testimony
can be introduced in the first instance.
3. “According to Defendant, Director of
Employee Relations Michael Brewer
is experienced and knowledgeable in
Lacks personal knowledge (Fed. R. Evid.
602); Lacks foundation, conclusory,
speculation (Fed. R. Evid. 702, 901). The
Case 5:17-cv-00155-ODW-SP Document 70 Filed 11/01/17 Page 3 of 31 Page ID #:4983
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LEGAL_US_W # 91806882.3
-3-
TARGET’S OBJECTIONS TO
DECLARATION OF DAVID G. SPIVAK
U.S.D.C., C.D. CAL., NO. 5:17-CV-00155-ODW-SP
SPIVAK DECLARATION
Testimony Objections
its wage and hour practices. See Ex.
3. Pursuant to Federal Rule of Civil
Procedure 30(b)(6), Defendant
named Mr. Brewer as the person
most qualified to testify on its behalf
about subjects related to Plaintiffs
claims.
. . . As such, his statements are
binding on Defendant. Defendant
testified that Asset Protection (“AP”)
is “a function,” a part of the
“corporate risk” “pyramid” rather
than a department or recognized
subdivision of Target. Id, 24:9-24.
Even though Defendant classifies
Target Protection Specialists
(“TPSs”) and Asset Protection
Specialists (“APSs”) as subordinates
to ETL-APs, Defendant provides the
ETL-APs with little to no control
over them. Defendant’s corporate
office directly assigns them daily
routines and new tasks every day. See
Ex. 13; see, infra,¶ 17, NF, 44 3: 5-
16; see, infra,’¶ 18, EA, 172:1-7.
Defendant does not permit the ETL-
APs to order the TPSs and APSs to
deviate from the routines or assigned
tasks. See Declaration of Neda Faraji
(“DNF”), ¶ 11; DEA, ¶ 9; RH, ¶ 10;
SL, ¶ 10; NR, ¶ 9; SS, ¶ 10; AS, ¶ 10;
MS, ¶ 10. ETL-APs merely follow
Defendant’s policies and procedures.
Even if the Court finds that the ETL-
Aps “manage” Defendant’s AP, they
do not qualify as executives since
Defendant testified that AP is not a
department or division but rather a
“function” within a “pyramid.” MB,
24:9-24.” Spivak Decl., ¶ 16.
declarant—who is plaintiff’s counsel of
record and has never worked as an ETL-AP
for Target—has no personal knowledge and
lacks sufficient basis to speak to the duties
of ETL-APs and the degree of “control”
that ETL-APs have in performing their jobs.
The declarant’s statements on those matters
are conclusory. Moreover, the declarant’s
statements regarding Michael Brewer’s
testimony and what Mr. Brewer supposedly
meant by his testimony are taken out of
context, lack foundation, and are
speculative mischaracterizations.
Inadmissible hearsay (Fed. R. Evid. 801).
The declarant’s statements regarding
Michael Brewer’s testimony and what he
supposedly meant by his testimony are
mischaracterizations and inadmissible
hearsay, given that Mr. Brewer’s testimony
can be introduced in the first instance.
Irrelevant and immaterial (Fed. R. Evid.
401). The declarant’s subjective
interpretations of Michael Brewer’s
testimony, Target’s organizational structure,
and how ETL-APs perform their duties are
irrelevant to the issue of whether Target in
fact has a common policy or practice, or is
liable for some wage-and-hour violation
that would give rise to class certification.
Improper legal argument and conclusion.
The declarant’s statements regarding the
degree of “control” that ETL-APs
supposedly have, their alleged duties, and
how they perform their jobs are
argumentative and state legal conclusions
rather than facts based on the declarant’s
personal knowledge. Such argumentative
statements are not the proper subject of a
declaration.
4. “Mr. Brewer testified that, to his
knowledge, this is the 2014 version
Lacks personal knowledge (Fed. R. Evid.
602); Lacks foundation, conclusory,
Case 5:17-cv-00155-ODW-SP Document 70 Filed 11/01/17 Page 4 of 31 Page ID #:4984
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LEGAL_US_W # 91806882.3
-4-
TARGET’S OBJECTIONS TO
DECLARATION OF DAVID G. SPIVAK
U.S.D.C., C.D. CAL., NO. 5:17-CV-00155-ODW-SP
SPIVAK DECLARATION
Testimony Objections
of Defendant’s exempt team member
handbook that was made available to
Defendant’s employees on its
intranet. See MB, 151:18-152:12. In
spite of the expectations outlined in
Plaintiff’s Memorandum of Points
and Authorities (Section II(D)-II(F)),
Defendant informs its ETL-APs that
it is “critical” that they “continually”
spend substantially more than 50% of
their time on leadership
responsibilities instead of hourly
tasks. Ex. 18, TARGET_NF-82-83.
Defendant lists “managing
performance,” “rewarding
excellence,” and “managing guest
issues” as examples of “managerial”
and “leadership” responsibilities
while listing zoning, stocking,
cashiering, and unloading trailers and
moving boxes as examples of
“hourly” duties. Id., TARGET_NF-
83. Defendant also advises the ETL-
APs in writing that it expects them to
immediately clean up spills, pick up
objects on the floor, and keep the
floor clean and dry. Id.,
TARGET_NF-109. Defendant fails
to indicate whether it views these
tasks as “hourly,” “leadership,” or
“managerial.” Id.” Spivak Decl.,
¶ 20.
speculation (Fed. R. Evid. 702, 901). The
declarant’s statements regarding what
Target allegedly “informs” and “advises”
ETL-APs through its policies are taken out
of context and mischaracterizations. The
declarant fails to establish sufficient basis
and lacks personal knowledge of what and
how Target may have communicated to
their ETL-APs regarding their various
duties. The declarant’s statements
regarding Target’s supposed expectations of
ETL-APs thus lack foundation and are
speculative conclusions. Similarly, to the
extent the declarant suggests that ETL-APs
were personally responsible for performing
certain hourly tasks, the declarant’s
statement lacks foundation and is
speculative.
Inadmissible hearsay (Fed. R. Evid. 801).
The declarant’s statements regarding what
Target says in its policy documents are
mischaracterizations and inadmissible
hearsay. The documents speak for
themselves. Likewise, the declarant’s
statement regarding Michael Brewer’s
testimony is inadmissible hearsay, given
that Mr. Brewer’s testimony can be
introduced in the first instance.
Irrelevant and immaterial (Fed. R. Evid.
401). The declarant’s subjective
interpretation of Target’s supposed
expectations of ETL-APs—which lacks
personal knowledge and foundation—is
irrelevant to the issue of whether Target in
fact has a common policy or practice, or is
liable for some wage-and-hour violation
that would give rise to class certification.
Improper legal argument. To the extent
the declarant is attempting to persuade the
Court that ETL-APs were personally
responsible for performing certain hourly
tasks, the declarant makes a legal argument
(which lacks foundation and is speculative)
Case 5:17-cv-00155-ODW-SP Document 70 Filed 11/01/17 Page 5 of 31 Page ID #:4985
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LEGAL_US_W # 91806882.3
-5-
TARGET’S OBJECTIONS TO
DECLARATION OF DAVID G. SPIVAK
U.S.D.C., C.D. CAL., NO. 5:17-CV-00155-ODW-SP
SPIVAK DECLARATION
Testimony Objections
rather than stating facts based on the
declarant’s personal knowledge. Such
argumentative statements are not the proper
subject of a declaration.
5. “Defendant advises the ETL-APs that
it will not subject them to “adverse
action” for their self-audit responses.
See Ex. 31. However, it does not
indicate whether their Store Team
Leaders (“STLs”) may be subjected
to adverse actions for their responses.
Further, Defendant instructs the ETL-
APs that failure to spend the majority
of their worktime on “managerial”
and “leadership” duties is cause for
an immediate report to their
supervisor. Ex. 18, TARGET_NF-83.
Defendant repeatedly cautions their
ETL-APs in writing (and all other
ETLs for that matter) that they are at-
will employees and therefore it can
terminate their employments at any
time for any reason. Ex. 18,
TARGET_NF-69, TARGET_NF-80.
Specifically, it warns,
Target will not, and team members
should not, interpret any verbal or
written statement, policies, practices
or procedures, including this
handbook, as altering their at-will
status. In addition, Target practices or
procedures do not guarantee
employment for any particular length
of time or limit how that employment
may end.
Id. Defendant also advises its ETL-
APs that it will extend promotion
opportunities to those who “perform
consistent with our expectations of
excellence.” See Ex. 18,
TARGET_NF-81 (emphasis added).”
Spivak Decl., ¶ 21.
Lacks personal knowledge (Fed. R. Evid.
602); Lacks foundation, conclusory,
speculation (Fed. R. Evid. 702, 901). The
declarant establishes no personal knowledge
or basis for knowing what Target may or
may not have indicated to its STLs. To the
extent the declarant invites the Court to
infer that STLs are subject to adverse action
for how ETL-APs respond in their self-
audits and, from that, to further infer that
ETL-APs may have responded untruthfully,
the declarant’s statements are unfounded
and wildly speculative.
Inadmissible hearsay (Fed. R. Evid. 801).
The declarant’s statements regarding what
Target says in its policy documents are
inadmissible hearsay. The documents speak
for themselves.
Irrelevant and immaterial (Fed. R. Evid.
401). The declarant’s subjective
interpretation of Target’s policy documents
is irrelevant to the issue of whether Target
in fact has a common policy or practice, or
is liable for some wage-and-hour violation
that would give rise to class certification.
Improper legal argument. To the extent
the declarant is attempting to persuade the
Court that ETL-APs were not honest in
their self-audits, the declarant makes a legal
argument (which lacks foundation and is
speculative) rather than stating facts based
on the declarant’s personal knowledge.
Such argumentative statements are not the
proper subject of a declaration.
Case 5:17-cv-00155-ODW-SP Document 70 Filed 11/01/17 Page 6 of 31 Page ID #:4986
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LEGAL_US_W # 91806882.3
-6-
TARGET’S OBJECTIONS TO
DECLARATION OF DAVID G. SPIVAK
U.S.D.C., C.D. CAL., NO. 5:17-CV-00155-ODW-SP
SPIVAK DECLARATION
Testimony Objections
6. “Plaintiff completed two self-audits
as an ETL-AP in which she stated she
spent (1) no time performing many of
the managerial tasks, (2) significantly
different portions of her worktime
performing different managerial tasks
year to year, and (3) absolutely no
time on nonmanagerial tasks. See
Exs. 23, 24. Plaintiff also stated in
both audits to have spent no time
“managing store facilities as [leader-
on-duty (“LOD”)].” See Exs. 23, 24.
Defendant did not follow up with
Plaintiff about any of these
irregularities, nor did Defendant
subject her to counseling or
discipline. See DNF, ¶ 14. Defendant
does not investigate such
irregularities. See MB, 105:3-107:7.”
Spivak Decl., ¶ 22.
Lacks personal knowledge (Fed. R. Evid.
602); Lacks foundation, conclusory,
speculation (Fed. R. Evid. 702, 901). The
declarant lacks personal knowledge and
fails to establish sufficient basis for his
statements regarding what actions Target
did or did not take with respect to plaintiff’s
self-audit answers, and what actions Target
typically does or does not take with respect
to self-audits responses. The declarant’s
statements thus lack foundation and are
conclusory.
Inadmissible hearsay (Fed. R. Evid. 801).
The declarant’s statements regarding what
plaintiff stated in her self-audits are
inadmissible hearsay.
Irrelevant and immaterial (Fed. R. Evid.
401). How Target responds to information
provided in an employee self-audit on any
particular occasion is irrelevant to the issue
of whether Target has a common policy or
practice, or is liable for some wage-and-
hour violation that would give rise to class
certification.
Improper legal argument. The declarant’s
statements regarding what Target
supposedly did or did not do with respect to
self-audit responses are argumentative and
not the proper subject of a declaration.
7. “Defendant instructs its ETL-APs
that it expects them to spend more
than 50% of their time on
“managerial” tasks and duties. In the
same vein, Defendant instructs its
ETL-APs that it is “critical” that they
“continually” spend substantially
more than 50% of their time on
leadership responsibilities instead of
hourly tasks. However, Defendant
provides very little explanation of
what it means by “managerial” and
Lacks personal knowledge (Fed. R. Evid.
602); Lacks foundation, conclusory,
speculation (Fed. R. Evid. 702, 901). The
declarant lacks personal knowledge and
offers no basis for his conclusion that
Target “provides very little explanation of
what it means by ‘managerial’ and
‘leadership’.” The declarant’s statements
thus lack foundation and are conclusory.
Similarly, his assessment of certain terms as
“ambiguous” is based on his subjective
belief and conclusory.
Case 5:17-cv-00155-ODW-SP Document 70 Filed 11/01/17 Page 7 of 31 Page ID #:4987
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LEGAL_US_W # 91806882.3
-7-
TARGET’S OBJECTIONS TO
DECLARATION OF DAVID G. SPIVAK
U.S.D.C., C.D. CAL., NO. 5:17-CV-00155-ODW-SP
SPIVAK DECLARATION
Testimony Objections
“leadership,” other than to offer
additional ambiguous terms such as
“managing performance,” “rewarding
excellence,” “managing guest
issues.” Ex. 18, TARGET_NF-83.
Defendant tasks at least one category
of hourly employee, the TLs, with a
host of LOD tasks that they share
with the ETL-APs and that ETL-APs
perform for most of their worktime.
Defendant trains all of its ETL-APs
to perform LOD work and expects
them to perform such work “as
trained.” Ex. 18, TARGET_NTF-
108. Whether hourly work is
considered exempt or nonexempt
work depends on its purpose. See
Plaintiff’s Memorandum of Points
and Authorities, Section VI(C)(2)(b).
However, Defendant does not explain
or limit the purpose of the ETL-APs
performing hourly work. Rather,
Defendant implies that it expects all
of its leaders to have the freedom to
perform hourly or manual work as
the need arises and to the extent they
deem necessary. Further, Defendant
does nothing to eliminate the
confusion that must result from these
contrary statements.” Spivak Decl.,
¶ 23.
The declarant also fails to establish personal
knowledge or any other basis for his
statements regarding the team leaders’
supposed LOD duties, what ETL-APs
“perform for most of their worktime,” and
how Target trains its ETL-APs.” Those
statements are unfounded and speculative
conclusions. In fact, the declarant’s
statement regarding the team leaders’
alleged LOD duties is directly contradicted
by the testimony of Michael Brewer.
Brewer Tr. 47:6-19.
The declarant also lacks personal
knowledge and offers no basis for his
statement that Target “implies” certain
expectations or that “confusion” “must
result” from Target’s allegedly “contrary”
policy statements. His statement is
unfounded, conclusory, and speculative.
Inadmissible hearsay (Fed. R. Evid. 801).
The declarant’s statements regarding what
Target says in its policy documents are
inadmissible hearsay. The documents speak
for themselves.
Irrelevant and immaterial (Fed. R. Evid.
401). The declarant’s subjective belief
regarding the sufficiency of Target’s
explanation of ETL-AP duties and the
purpose of their tasks, is irrelevant to the
issue of whether Target in fact has a
common policy or practice, or is liable for
some wage-and-hour violation that would
give rise to class certification.
Improper legal argument and conclusion.
The declarant’s claim that “[w]hether
hourly work is considered exempt or
nonexempt work depends on its purpose” is
an improper legal conclusion, not a fact.
Moreover, to the extent the declarant
attempts to persuade the Court that the
purpose of ETL-AP hourly work is not
clearly defined and, from that, to infer some
Case 5:17-cv-00155-ODW-SP Document 70 Filed 11/01/17 Page 8 of 31 Page ID #:4988
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LEGAL_US_W # 91806882.3
-8-
TARGET’S OBJECTIONS TO
DECLARATION OF DAVID G. SPIVAK
U.S.D.C., C.D. CAL., NO. 5:17-CV-00155-ODW-SP
SPIVAK DECLARATION
Testimony Objections
wage-and-hour violation that would give
rise to class certification, the declarant’s
statements are improper legal arguments
and not the proper subject of a declaration.
8. “Defendant’s statements appear to be
at odds with its instruction to its
ETL-APs to occasionally perform
“hourly” tasks and duties. Again,
Defendant provides little explanation
of what it means by “hourly” other
than four examples: zoning, stocking,
cashiering, and unloading trailers and
moving boxes. Ex. 18,
TARGET_NF-83. Does “hourly”
refer to duties that Defendant tasks its
hourly TLs with performing such as
the duties of Defendant’s LODs?
Defendant does not say, though there
is no dispute that Defendant requires
its ETL-APs to perform such hourly
TL duties throughout most of the
workweek. See Ex. 27; DNF, ¶¶ 4-5,
AA, ¶¶ 3-4, DEA, ¶¶ 3-4, RH, ¶¶ 3-4,
DJ, ¶¶ 3-4, SL, ¶¶ 3-4, NR, ¶¶ 3-4,
SS, ¶¶ 3-4, AS, ¶¶ 3-4, MS, ¶¶ 3-4.
Defendant also advises the ETL-APs
in writing that it expects them to
immediately clean up spills, pick up
objects on the floor, and keep the
floor clean and dry. Ex. 18,
TARGET_NF-109. Defendant does
not explain, however, how they can
avoid performing these functions
themselves when there are
insufficient hourly employees
available to delegate them to. Hence,
whether Defendant views
“immediately cleaning spills” and
like duties as exempt or nonexempt is
at best unclear. The Court must make
a determination of Defendant’s
expectations for these duties for an
ETL-AP who contends she is not-
Improper legal argument and conclusion.
To the extent the declarant attempts to
persuade the Court that Target’s
expectations of its ETL-APs are unclear and
contradictory and, from that, to infer some
wage-and-hour violation that would give
rise to class certification, the declarant’s
statements are improper legal arguments
and not the proper subject of a declaration.
Lacks personal knowledge (Fed. R. Evid.
602); Lacks foundation, conclusory,
speculation (Fed. R. Evid. 702, 901). The
declarant lacks personal knowledge and
does not establish any basis for his
assumption that Target “instruct[s]” ETL-
APs “to occasionally perform ‘hourly’ tasks
and duties.” The declarant similarly fails to
establish personal knowledge or sufficient
basis for asserting that Target “provides
little explanation of what it means by
‘hourly’,” and that Target “requires its
ETL-APs to perform such hourly TL duties
throughout most the workweek.” By
making such statements, the declarant
assumes “facts” not in evidence—such as
that team leaders perform LOD duties, and
that ETL-APs perform hourly team leader
duties. In fact, these assumptions are
directly contradicted by the testimony of
Michael Brewer. Brewer Tr. 47:6-19. The
declarant also improperly assumes, without
any foundation, that “there are insufficient
hourly employees available to delegate
[certain tasks] to.”
Inadmissible hearsay (Fed. R. Evid. 801).
The declarant’s statements regarding what
Target says in its policy documents are
inadmissible hearsay. The documents speak
Case 5:17-cv-00155-ODW-SP Document 70 Filed 11/01/17 Page 9 of 31 Page ID #:4989
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LEGAL_US_W # 91806882.3
-9-
TARGET’S OBJECTIONS TO
DECLARATION OF DAVID G. SPIVAK
U.S.D.C., C.D. CAL., NO. 5:17-CV-00155-ODW-SP
SPIVAK DECLARATION
Testimony Objections
exempt.” Spivak Decl., ¶ 24. for themselves.
Irrelevant and immaterial (Fed. R. Evid.
401). The declarant’s subjective
assessments of what Target “appears” to
state in its policies, whether Target’s
policies are “at odds,” and the sufficiency of
what Target does or does not explain to its
ETL-APs, are irrelevant to the issue of
whether Target in fact has a common policy
or practice, or is liable for some wage-and-
hour violation that would give rise to class
certification.
9. “There is no doubt that Defendant
informs its ETL-APs that failure to
spend the majority of their worktime
on “managerial” and “leadership”
duties is cause for an immediate
report to their supervisor. Ex. 18,
TARGET_NF-83. Whether
Defendant’s characterization of the
duties as “managerial” or
“leadership” equates to exempt or
non-exempt is the primary issue
before this Court. Regardless,
Defendant makes abundantly clear to
its ETL-APs that it expects them to
state in the self-audits that they
perform what Defendant deems
“managerial” duties most of the time
– whether or not they agree with
Defendant’s depictions of duties as
“managerial” and whether they
perform exempt duties more often
than not. To ensure the ETL-APs
assign most of their time to the vague
“managerial” duties listed in the self-
audit, Defendant offers a powerful
incentive: In the Exempt Employee
Handbook, Defendant cautions the
ETL-APs:
Target can terminate the employment
relationship at anytime.
Improper legal argument and conclusion.
To the extent the declarant attempts to
persuade the Court that the self-audits are
not accurate reflections of how ETL-APs
spend their time and, from that, to infer
some wage-and-hour violation that would
give rise to class certification, the
declarant’s statements are legal arguments
and conclusions, not facts. Moreover, the
declarant’s assertion that the “primary issue
before this Court” is “[w]hether
Defendant’s characterization of the duties
as ‘managerial’ or ‘leadership’ equates to
exempt or non-exempt” is a legal argument,
not a fact. Such argumentative statements
are not the proper subject of a declaration.
Lacks personal knowledge (Fed. R. Evid.
602); Lacks foundation, conclusory,
speculation (Fed. R. Evid. 702, 901). The
declarant lacks personal knowledge and
establishes no basis for knowing how ETL-
APs understand their duties and whether or
not ETL-APs feel pressured to answer the
self-audits a certain way. The declarant
likewise lacks personal knowledge and does
not establish any basis for his statements
regarding the intentions behind Target’s
policies, how they are communicated, and
how they are received by ETL-APs. The
declarant’s statements thus lack foundation
Case 5:17-cv-00155-ODW-SP Document 70 Filed 11/01/17 Page 10 of 31 Page ID #:4990
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LEGAL_US_W # 91806882.3
-10-
TARGET’S OBJECTIONS TO
DECLARATION OF DAVID G. SPIVAK
U.S.D.C., C.D. CAL., NO. 5:17-CV-00155-ODW-SP
SPIVAK DECLARATION
Testimony Objections
Target can terminate the employment
relationship for any reason.
Target verbal and written statements
do not prevent Target from
terminating the employment
relationship at any time or for any
reason.
Target’s procedures do not guarantee
employment or how Target will end
it.
See Ex. 18 (TARGET_NF-000069).
Defendant also advises its ETL-APs
that it will extend promotion
opportunities to those who “perform
consistent with our expectations of
excellence.” Ex. 18, TARGET_NF-
81 (emphasis added). These
statements eliminate any faith that an
ETL-AP may place in the assurance
of Defendant’s self-audit cover letter
that Defendant will not take “adverse
action” against him for his self-audit
responses. Ex. 31. An ETL-AP would
be a fool to assign any significant
amount of time to “hourly” tasks in
the self-audit whether or not he
agrees with Defendant’s depiction of
tasks as “hourly” and “managerial.”
Ex. 18, TARGET_NF-69,
TARGET_NF-80.” Spivak Decl.,
¶ 25.
and are speculative conclusions.
Inadmissible hearsay (Fed. R. Evid. 801).
The declarant’s statements regarding what
Target says in its policy documents are
inadmissible hearsay. The documents speak
for themselves.
Irrelevant and immaterial (Fed. R. Evid.
401). The declarant’s subjective opinions
of how ETL-APs understand their duties
and what ETL-APs think or feel as they
complete their self-audits—which lack
foundation and are speculative—are
irrelevant to the issue of whether Target in
fact has a common policy or practice, or is
liable for some wage-and-hour violation
that would give rise to class certification.
10. “While Defendant offers protection
from adverse action to the ETL-APs,
there is no evidence of assurances to
their STL supervisors that Defendant
will not punish them for their
subordinates’ responses to the audit.
Therefore, the wise STL will
encourage his subordinate ETL-AP to
assign higher percentages of
worktime to the self-audits
“managerial” tasks than to the
Improper legal argument and conclusion.
To the extent the declarant attempts to
persuade the Court that the self-audits are
not accurate reflections of how ETL-APs
spend their time and, from that, to infer
some wage-and-hour violation that would
give rise to class certification, the
declarant’s statements are legal arguments
and conclusions. Such argumentative
statements are not the proper subject of a
Case 5:17-cv-00155-ODW-SP Document 70 Filed 11/01/17 Page 11 of 31 Page ID #:4991
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LEGAL_US_W # 91806882.3
-11-
TARGET’S OBJECTIONS TO
DECLARATION OF DAVID G. SPIVAK
U.S.D.C., C.D. CAL., NO. 5:17-CV-00155-ODW-SP
SPIVAK DECLARATION
Testimony Objections
“hourly” tasks. It can be no surprise
that Defendant obtained audit results
that ETL-APs spend most of their
time on “managerial” duties. See MB,
108:18-109:4.” Spivak Decl., ¶ 26.
declaration.
Lacks personal knowledge (Fed. R. Evid.
602); Lacks foundation, conclusory,
speculation (Fed. R. Evid. 702, 901). The
declarant lacks personal knowledge of
Target’s operations and establishes
absolutely no basis for his suggestion that
Target will “punish” STLs for how ETL-
APs respond to their self-audits. Likewise,
he does not establish personal knowledge
and fails to offer any foundation for his
assumption that STLs “encourage” ETL-
APs to respond to the self-audits a certain
way. These statements lack any foundation
and are wildly speculative conclusions.
Irrelevant and immaterial (Fed. R. Evid.
401). The declarant’s subjective theories of
what STLs think and how they behave—
which lack foundation and are
speculative—are irrelevant to the issue of
whether Target in fact has a common policy
or practice, or is liable for some wage-and-
hour violation that would give rise to class
certification.
11. “There are additional reasons why the
self-audit results are not reliable
proof of Defendant’s expectations.
The tasks Defendant lists in the
audits are often generic and lacking
explanation. The audit format does
not permit the ETL-APs to state that
they concurrently perform
“managerial” and “hourly” tasks, e.g.
training subordinates on zoning while
performing zoning duties.
Additionally, in the self-audits,
Defendant directs the ETL-APs to
state their “managerial” duties in
advance of the non-managerial
duties.” Spivak Decl., ¶ 27.
Improper legal argument and conclusion.
The declarant’s assertion that the “self-audit
results are not reliable proof of Defendant’s
expectations,” and the so-called “reasons”
he offers in support of that conclusion are
improper legal arguments and conclusions,
not facts. Such argumentative statements
are not the proper subject of a declaration.
Lacks personal knowledge (Fed. R. Evid.
602); Lacks foundation, conclusory,
speculation (Fed. R. Evid. 702, 901). The
declarant fails to establish sufficient basis
for his assertion that the “self-audit results
are not reliable proof of Defendant’s
expectations.” The declarant’s so-called
“reasons” are based on unfounded
assumptions of how ETL-APs understand
and respond to the self-audits. The
Case 5:17-cv-00155-ODW-SP Document 70 Filed 11/01/17 Page 12 of 31 Page ID #:4992
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LEGAL_US_W # 91806882.3
-12-
TARGET’S OBJECTIONS TO
DECLARATION OF DAVID G. SPIVAK
U.S.D.C., C.D. CAL., NO. 5:17-CV-00155-ODW-SP
SPIVAK DECLARATION
Testimony Objections
declarant’s statements thus lack foundation
and are conclusory.
Inadmissible hearsay (Fed. R. Evid. 801).
The declarant’s characterizations of the
content of Target’s self-audits and what
they state are inadmissible hearsay. The
documents speaks for themselves.
Irrelevant and immaterial (Fed. R. Evid.
401). The declarant’s subjective opinion
regarding the format of the self-audits, and
his belief that the descriptions listed therein
are “generic and lacking explanation,” are
irrelevant both to how the ETL-APs
received and responded to the self-audits,
and to the larger issue of whether Target is
liable for some wage-and-hour violation
that would give rise to class certification.
12. “Defendant makes no attempt to
check on irregularities in the ETL-AP
self-audits as long as the ETL-APs
state that they spend more than 50%
of their worktimes performing
“MANAGERIAL Job Duties.”
Plaintiff completed two self-audits as
an ETL-AP in which she stated to
have spent (1) no time performing
many of the managerial tasks, (2)
significantly different portions of her
worktime performing different
managerial tasks year to year, (3)
absolutely no time on nonmanagerial
tasks, and (4) no time “managing
store facilities as LOD” (even though
Defendant scheduled all ETL-APs to
perform LOD duties at least three out
of their five workdays). See Exs. 23,
24. Despite her impossible answers,
Defendant did not follow up with
Plaintiff about her self-audits. DNF, ¶
14. Clearly, Defendant’s only interest
in the self-audits is to conjure a
defense of their overtime-exempt
Improper legal argument and conclusion.
The declarant’s assertions regarding
Target’s alleged “interest” in the self-audits,
the accuracy of the audits, what the Court
should or should not consider, and what
Target should or should not be permitted to
present as evidence, are improper legal
arguments and conclusions, not facts. Such
argumentative statements are not the proper
subject of a declaration.
Lacks personal knowledge (Fed. R. Evid.
602); Lacks foundation, conclusory,
speculation (Fed. R. Evid. 702, 901). The
declarant fails to establish any personal
knowledge or sufficient basis for knowing
what Target does or does not do with the
self-audit responses, and Target’s purpose
for requiring the self-audits. The
declarant’s statements thus lack foundation
and are speculative conclusions.
Irrelevant and immaterial (Fed. R. Evid.
401). Whether or not Target follows up
with ETL-APs about their self-audit
responses, and whether or not Target
Case 5:17-cv-00155-ODW-SP Document 70 Filed 11/01/17 Page 13 of 31 Page ID #:4993
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LEGAL_US_W # 91806882.3
-13-
TARGET’S OBJECTIONS TO
DECLARATION OF DAVID G. SPIVAK
U.S.D.C., C.D. CAL., NO. 5:17-CV-00155-ODW-SP
SPIVAK DECLARATION
Testimony Objections
classification of the ETL-APs.
Therefore, the self-audits cannot be
relied upon to accurately represent
how the ETL-APs are spending their
worktime and the Court should not
accept at face-value Defendant’s
depictions of “hourly” and
“managerial.” Further, Defendant
cannot rely on the self-serving self-
audits to show that its
misclassification of the ETL-APs was
not willful, knowing, or intentional.”
Spivak Decl., ¶ 28.
followed up with plaintiff on the two
occasions alleged by the declarant, is
irrelevant to the issue of whether Target is
liable for some wage-and-hour violation
that would give rise to class certification.
Moreover, the declarant’s subjective beliefs
regarding Target’s supposed “interest” in
the self-audits and the accuracy of the
audits—which lack foundation and are
speculative—are irrelevant to the issue of
whether Target in fact has a common policy
or practice that gives rise to class
certification.
13. “Mr. Brewer testified that, to his
knowledge, this is a document that
Defendant defines its leadership
expectations in. See MB, 72:7-16.
The document is made available to
Defendant’s employees on its
intranet, Defendant requires ETLs to
“adapt[] appropriately to competing
demands and shifting priorities”;
“accept[] responsibility for team or
work center performance”; and
“take[] personal responsibility to
make decisions and take action.” Ex.
20. Similarly, Defendant requires
TLs to “deal[] constructively with
mistakes and problems”; “‘confront[]
difficult issues to ensure they are
addressed”; “willingly offer[] help or
assistance to others when needed”;
and “work[] steadily at repetitive or
routine tasks to make sure they are
completed.” Id.” Spivak Decl., ¶ 30.
Inadmissible hearsay (Fed. R. Evid. 801).
The declarant’s characterizations of Mr.
Brewer’s testimony and of the documents
produced by Target are inadmissible
hearsay, given that Mr. Brewer’s testimony
and the documents can be introduced in the
first instance.
Irrelevant and immaterial (Fed. R. Evid.
401). How Target explains the leadership
duties of its employees in one particular
document—especially those of its team
leaders—is irrelevant to the issue of
whether Target is liable for a wage-and-
hour violation that gives rise to class
certification here.
14. “Mr. Brewer testified that, to his
knowledge, this is part of
Defendant’s LOD training material
which is provided to the ETL-APs
during their training. See MB, 185:6-
186:4.” Spivak Decl., ¶ 32.
Inadmissible hearsay (Fed. R. Evid. 801).
The declarant’s statement regarding what
Mr. Brewer testified is inadmissible
hearsay, given that Mr. Brewer’s testimony
can be introduced in the first instance.
Case 5:17-cv-00155-ODW-SP Document 70 Filed 11/01/17 Page 14 of 31 Page ID #:4994
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LEGAL_US_W # 91806882.3
-14-
TARGET’S OBJECTIONS TO
DECLARATION OF DAVID G. SPIVAK
U.S.D.C., C.D. CAL., NO. 5:17-CV-00155-ODW-SP
SPIVAK DECLARATION
Testimony Objections
15. “A true and correct copy of a
spreadsheet prepared by Plaintiff’s
counsel which compares Defendant’s
2015 and 2016 audit documents
concerning Plaintiff (Ex. 23,
TARGET_NF-000010) based on
Plaintiff’s counsel’s review is
attached as Exhibit 23.” Spivak
Decl., ¶ 33.
Irrelevant and immaterial (Fed. R. Evid.
401). The declarant’s subjective assessment
of the plaintiff’s self-audit documents, as
set forth in the spreadsheet (Exhibit 23), is
irrelevant to the issue of whether Target has
a common policy or practice, or is liable for
some wage-and-hour violation that would
give rise to class certification.
Improper legal argument. To the extent
that the declarant is attempting to persuade
the Court through the spreadsheet that the
self-audits do not accurately reflect how
ETL-APs spend their time, or that Target is
liable for some wage-and-hour violation
that would give rise to class certification,
the spreadsheet (Exhibit 23) improperly
presents a legal argument and conclusion,
not facts.
16. “Defendant annually requires its
ETL-APs to complete a survey that
asks them to state the percentage of
their worktime spent on a list of
duties. See Ex. 14, 95:4-8. Defendant
provides the same survey to all ETL-
APs. See Ex. 14, 97:20-25. In 2016,
the list contained 49 duties, of which
35 “MANAGERIAL Job Duties”
were listed first, followed by 14
“NON-MANAGERIAL Job Duties.”
Defendant lists several generic duties
under “MANAGERIAL Job Duties”
which it fails to describe, such as
“Developing and ensuring adherence
to safe and secure programs and
practices (including partnering with
STL and [LOD] regarding premise
and perimeter security, tracking safe
and secure issues, identifying store
safe and secure trends, developing
and implementing response plans,
making sure all team members are
trained and certified for their
Lacks personal knowledge (Fed. R. Evid.
602). The declarant lacks personal
knowledge and fails to establish sufficient
basis for knowing how Target operates, and
what Target requires of its ETL-APs.
Inadmissible hearsay (Fed. R. Evid. 801).
The declarant’s description of the contents
of the self-audits is inadmissible hearsay.
The documents speak for themselves.
Irrelevant and immaterial (Fed. R. Evid.
401). The format of Target’s self-audits is
irrelevant to the issue of whether Target is
liable for some wage-and-hour violation
that would give rise to class certification.
Improper legal argument. To the extent
that the declarant is attempting to persuade
the Court that the self-audits do not
accurately reflect how ETL-APs spend their
time and, from that, to infer some wage-
and-hour violation that would give rise to
class certification, such statements are
improper legal arguments, not facts. Such
argumentative statements are not the proper
Case 5:17-cv-00155-ODW-SP Document 70 Filed 11/01/17 Page 15 of 31 Page ID #:4995
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LEGAL_US_W # 91806882.3
-15-
TARGET’S OBJECTIONS TO
DECLARATION OF DAVID G. SPIVAK
U.S.D.C., C.D. CAL., NO. 5:17-CV-00155-ODW-SP
SPIVAK DECLARATION
Testimony Objections
positions)” and LOD duties. Id.
Under “NON-MANAGERIAL Job
Duties,” Defendant anticipates that
the ETL-APs to will unload, move,
stock, and zone merchandise, serve
guests, ring up sales and handle cash,
clean the store, perform clerical tasks,
and perform non-exempt AP tasks
such as surveillance, apprehension,
affixing alarm tags, locking
peghooks, counting of merchandise,
and installing surveillance cameras.
The audit does not permit the ETL-
APs to state that they concurrently
perform “managerial” and “hourly”
tasks, e.g. training subordinates on
zoning while performing zoning
duties. Id.” Spivak Decl., ¶ 34.
subject of a declaration.
17. “Defendant also requires the ETL-APs to “ensure the goals and
expectations are satisfied”; “quickly
identify and implement solutions to
any in-stock, presentation, pricing,
signing or safety issues”; “Complete
additional duties as needed or
required”; “Model ... The Vibe
service behaviors”; “model ... guest
service behaviors”; “respond quickly
to guest requests”; “ensure all areas
of the store are in stock and zoned to
grow sales”; “Use verbal and
physical de-escalation techniques to
minimize the threats to guests and
team members”; and “Provide a
clean, safe and secure shopping and
working environment.” See Ex. 24.
Defendant does not inhibit the ETL-
APs from performing such duties as
need requires. Id.” Spivak Decl.,
¶ 35.
Lacks personal knowledge (Fed. R. Evid.
602); Lacks foundation, conclusory,
speculation (Fed. R. Evid. 702, 901). The
declarant lacks personal knowledge of what
Target expects of its ETL-APs, and does not
establish sufficient basis for his assertion
that Target “does not inhibit” ETL-APs
from performing certain tasks. The
declarant’s statements lack foundation and
are conclusory.
Inadmissible hearsay (Fed. R. Evid. 801).
The declarant’s statements of what Target
says in its documents are inadmissible
hearsay. Those documents speak for
themselves.
Improper legal argument. To the extent
that the declarant is attempting to persuade
the Court that, based on selected excerpts
from Target’s documents, Target is liable
for a wage-and-hour violation that gives rise
to class certification, the declarant’s
statements are improper legal arguments,
not facts. Such argumentative statements
are not the proper subject of a declaration.
Case 5:17-cv-00155-ODW-SP Document 70 Filed 11/01/17 Page 16 of 31 Page ID #:4996
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LEGAL_US_W # 91806882.3
-16-
TARGET’S OBJECTIONS TO
DECLARATION OF DAVID G. SPIVAK
U.S.D.C., C.D. CAL., NO. 5:17-CV-00155-ODW-SP
SPIVAK DECLARATION
Testimony Objections
18. “Mr. Brewer testified that, to his
knowledge, this document was
updated on February 25, 2016 and
made available to the ETL-APs on
Defendant’s intranet. See MB, 59:13-
61:2.” Spivak Decl., ¶ 37.
Inadmissible hearsay (Fed. R. Evid. 801).
The declarant’s statement regarding what
Mr. Brewer testified is inadmissible
hearsay, given that Mr. Brewer’s testimony
can be introduced in the first instance.
19. “Defendant testified that it expects its
ETL-APs to work at least 10 hours
per workday and about 50 to 60 hours
in a workweek performing the tasks it
assigns to them. See MB, 45:3-7. In
the ETL-AP job descriptions,
Defendant states under
“Availability,” “Flexible work
schedule (e.g., nights, weekends,
holidays, and long hours) and regular
attendance necessary.”; Ex. 26,
TARGET_NF-60. Defendant
uniformly classifies the ETL-APs as
exempt, salaried employees and does
not pay additional wages to any of
them when they work in excess of
eight hours in a day or 40 hours in a
week. See DNF, ¶ 2, AA, ¶ 2, DEA, ¶
2, RH, ¶ 2, DJ, ¶ 2, SL, ¶ 2, NR, ¶ 2,
SS, ¶ 2, AS, ¶ 2, MS, ¶ 2; e.g., Exs.
12, 34. Defendant maintains records
of the ETL-APs’ work schedules
which shows the hours it expects
them to work and the length and
frequency of LOD shifts. See, e.g.,
Exs. 27, 32. Defendant’s work
schedules do not show meal or rest
periods for its ETL-APs. Defendant
has no records of ETL-APs meal and
rest periods. In this policy and
scheduling vacuum, it is no surprise
that ETL-APs take “working” rest
and meal periods.” Spivak Decl.,
¶ 38.
Lacks personal knowledge (Fed. R. Evid.
602); Lacks foundation, conclusory,
speculation (Fed. R. Evid. 702, 901). The
declarant lacks personal knowledge of what
Target expects of its ETL-APs. Similarly,
the declarant lacks personal knowledge and
sufficient basis for knowing how Target
classifies and pays all of its ETL-APs, and
what records Target does or does not
maintain. The declarant’s statements are
conclusory and speculative.
Inadmissible hearsay (Fed. R. Evid. 801).
The declarant’s characterizations of Mr.
Brewer’s deposition testimony, statements
regarding what Target’s documents do or do
not say, and statements based on witness
declarations, are inadmissible hearsay. The
declarant’s statement of what the self-audits
say likewise is inadmissible hearsay. Those
documents speak for themselves.
Irrelevant and immaterial (Fed. R. Evid.
401). That the work schedules of ETL-
APs—who Target maintains are properly
classified as exempt—may or may not show
meal or rest periods, and the number of
hours that Target generally expects its ETL-
APs to work, are irrelevant to the issue of
whether Target is liable for some wage-and-
hour violation that would give rise to class
certification.
Improper legal argument and conclusion.
The declarant’s statement that ETL-APs
must “take ‘working’ rest and meal periods”
because of an alleged “policy and
scheduling vacuum” is an improper and
Case 5:17-cv-00155-ODW-SP Document 70 Filed 11/01/17 Page 17 of 31 Page ID #:4997
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LEGAL_US_W # 91806882.3
-17-
TARGET’S OBJECTIONS TO
DECLARATION OF DAVID G. SPIVAK
U.S.D.C., C.D. CAL., NO. 5:17-CV-00155-ODW-SP
SPIVAK DECLARATION
Testimony Objections
speculative legal conclusion that lacks
foundation. Moreover, to the extent that the
declarant is attempting to persuade the
Court that Target is liable for a wage-and-
hour violation that gives rise to class
certification, such statements are improper
legal arguments, not facts. Such
argumentative statements are not the proper
subject of a declaration.
20. “Plaintiff testified that, to her
knowledge, these are the text
message conversations between
Plaintiff and STL Katherine Clark.
NF, 258:18-259:2.” Spivak Decl.,
¶ 41.
Inadmissible hearsay (Fed. R. Evid. 801).
The declarant’s statement of what plaintiff
testified is inadmissible hearsay.
21. “Mr. Brewer testified that, to his
knowledge, this is an email
Defendant sends out with the self-
audit. See MB, 91:20-92:22.” Spivak
Decl., ¶ 43.
Inadmissible hearsay (Fed. R. Evid. 801).
The declarant’s statement regarding what
Mr. Brewer testified is inadmissible
hearsay, given that Mr. Brewer’s testimony
can be introduced in the first instance.
22. “Ms. Faraji declared that, to her
knowledge, this is the email that she
sent to Natalie Velazquez on
February 29, 2016 with the monthly
Executive Schedule for March of
2016 attached. See DNF, ¶ 24.”
Spivak Decl., ¶ 44.
Inadmissible hearsay (Fed. R. Evid. 801).
The declarant’s statement of what plaintiff
testified is inadmissible hearsay.
23. “Mr. Brewer testified that, to his
knowledge, Defendant lists in this
document the daily tasks that it
expects its ETL-APs and STLs to
perform. See MB, 196:21-197:14.”
Spivak Decl., ¶ 45.
Inadmissible hearsay (Fed. R. Evid. 801).
The declarant’s statement regarding what
Mr. Brewer testified is inadmissible
hearsay, given that Mr. Brewer’s testimony
can be introduced in the first instance.
24. “Plaintiff contends that Defendant
willfully, intentionally, and
knowingly failed to pay the ETL-APs
all final wages and provide them with
accurate wage statements due to its
continued classification of the ETL-
Inadmissible hearsay (Fed. R. Evid. 801).
The declarant’s statement of what the
Gifford declarations say is inadmissible
hearsay.
Irrelevant and immaterial (Fed. R. Evid.
Case 5:17-cv-00155-ODW-SP Document 70 Filed 11/01/17 Page 18 of 31 Page ID #:4998
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LEGAL_US_W # 91806882.3
-18-
TARGET’S OBJECTIONS TO
DECLARATION OF DAVID G. SPIVAK
U.S.D.C., C.D. CAL., NO. 5:17-CV-00155-ODW-SP
SPIVAK DECLARATION
Testimony Objections
APs in the wake of the Gifford
lawsuit and its multiple declarations
of ETLs showing they performed
hourly work most of the time.”
Spivak Decl., ¶ 54.
401). What plaintiff subjectively believes
and contends is irrelevant to the issue of
whether Target in fact is liable for some
wage-and-hour violation that would give
rise to class certification. Moreover, the
Gifford lawsuit and declarations are
completely irrelevant to this present suit,
which relates to the claims of ETL-APs in
California. The Gifford lawsuit purported
to represent a broad class of all ETLs in all
Target work centers—not only ETL-APs—
employed anywhere in the nation, along
with a subclass of ETLs who were
employed in Minnesota. Moreover, the
events pertinent to the Gifford suit occurred
before the relevant time period of plaintiff’s
claims. See Target’s Motion to Strike and
Objections to Gifford Complaint and
Declarations, filed concurrently herewith.
25. “Mr. Brewer testified that, to his
knowledge, this is Defendant’s LOD
check list and is made available to the
positions that can serve as LODs. See
MB, 198:11-20.” Spivak Decl., ¶ 55.
Inadmissible hearsay (Fed. R. Evid. 801).
The declarant’s statement regarding what
Mr. Brewer testified is inadmissible
hearsay, given that Mr. Brewer’s testimony
can be introduced in the first instance.
26. “Defendant outlines and requires
ETL-APs to follow detailed policies
and procedures. See, e.g., Exs. 43, 44.
Although ETL-APs prepare
performance evaluations, Defendant
requires STLs to review each
evaluation, and others at Target
determine their uniform structure and
criteria are dictated by corporate and
uniform across stores. See, e.g., Ex.
19; see MB, 182:1-183:1. ETL-APs
do not have the discretion to change
the form or criteria for the evaluation
of their employees. MB, 182:1-183:1.
Similarly, Defendant’s corporate
office outlines “very specific” AP
policies (referred to as “AP
Directives”) and requires its exempt
Lacks personal knowledge (Fed. R. Evid.
602); Lacks foundation, conclusory,
speculation (Fed. R. Evid. 702, 901). The
declarant lacks personal knowledge and
fails to establish sufficient basis for
knowing what Target requires and expects
of its employees, and how those employees
perform their jobs. The declarant’s
statements regarding what Target
supposedly requires and the amount of
discretion that ETL-APs have in performing
their jobs lack foundation and are
conclusory.
Improper legal argument and conclusion.
The declarant’s statements are an improper
attempt to persuade the Court that Target
misclassifies its ETL-APs. Such statements
are legal arguments, not facts. They are not
Case 5:17-cv-00155-ODW-SP Document 70 Filed 11/01/17 Page 19 of 31 Page ID #:4999
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LEGAL_US_W # 91806882.3
-19-
TARGET’S OBJECTIONS TO
DECLARATION OF DAVID G. SPIVAK
U.S.D.C., C.D. CAL., NO. 5:17-CV-00155-ODW-SP
SPIVAK DECLARATION
Testimony Objections
and nonexempt AP employees to
follow them. MB, 154:13-20, 223:21-
224:2. ETL-APs have little or no
discretion to deviate from the set
procedures in any fashion. Indeed,
Defendant reprimands those who fail
to follow corporate procedures even
when an ETL-AP determines that it is
necessary. See, e.g., Ex. 28. Further,
the STLs and Asset Protection
Business Partners (“APBPs”) closely
monitor the ETL-APs and assign
them specific tasks. See, e.g., Ex. 29,
NF-94; Exs., 49, 50; see DNF, ¶ 9,
AA, ¶ 8, DEA, ¶ 8, RH, ¶ 8, DJ, ¶ 8,
SL, ¶ 8, NR, ¶ 8, SS, ¶ 8, AS, ¶ 8,
MS, ¶ 8.” Spivak Decl., ¶ 58.
the proper subject of a declaration.
27. “Mr. Brewer testified that, to his
knowledge, Defendant lists in this
document “specific items [it] want[s]
[the LOD] to look at” during the sales
floor walk. See MB, 225:22-226:16.”
Spivak Decl., ¶ 60.
Inadmissible hearsay (Fed. R. Evid. 801).
The declarant’s statement regarding what
Mr. Brewer testified is inadmissible
hearsay, given that Mr. Brewer’s testimony
can be introduced in the first instance.
28. “A true and correct copy of a text
message from STL Jennifer Silva,
bates labeled by Eduardo Arvilla as
EA000180, is attached as Exhibit 48.
Mr. Arvilla testified that, to his
knowledge, these are text messages
exchanged between him and Ms.
Silva. EA, 383:12-384:5; 392:12-
393:9.” Spivak Decl., ¶ 62.
Inadmissible hearsay (Fed. R. Evid. 801).
The text message (Exhibit 48) and the
declarant’s statement regarding what
Mr. Arvilla testified are inadmissible
hearsay.
29. “A true and correct copy of an email
from STL Jennifer Silva, bates
labeled by Eduardo Arvilla as
EA000242, is attached as Exhibit 49.
Mr. Arvilla testified that, to his
knowledge, this was an email Ms.
Silva sent to all ETLs in the store.
EA, 399:12-399:17.” Spivak Decl.,
¶ 63.
Inadmissible hearsay (Fed. R. Evid. 801).
The email (Exhibit 49) and the declarant’s
statement regarding what Mr. Arvilla
testified are inadmissible hearsay.
Case 5:17-cv-00155-ODW-SP Document 70 Filed 11/01/17 Page 20 of 31 Page ID #:5000
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LEGAL_US_W # 91806882.3
-20-
TARGET’S OBJECTIONS TO
DECLARATION OF DAVID G. SPIVAK
U.S.D.C., C.D. CAL., NO. 5:17-CV-00155-ODW-SP
SPIVAK DECLARATION
Testimony Objections
30. “To the best of my knowledge,
neither Plaintiff nor I have any
conflicts of interest with the absent
class members in this case.” Spivak
Decl., ¶ 64.
Lacks personal knowledge (Fed. R. Evid.
602); Lacks foundation, speculation (Fed.
R. Evid. 701, 702, 901). The declarant
lacks personal knowledge of whether or not
plaintiff has a conflict of interest with the
putative class members. Similarly, the
declarant does not provide any basis for his
opinion that neither he nor the plaintiff has
any conflicts of interest with the putative
class members.
Improper legal conclusion. Whether the
declarant or plaintiff has any conflicts of
interest with the putative class members is a
legal issue for the Court to decide, not a
fact.
31. “In addition to the duties stated in
Plaintiff’s Memorandum of Points
and Authorities (Section VI(C)), the
Court must also determine whether
the following duties are exempt or
nonexempt:
1) Lead with respect, empathy,
confidence and courage (Ex. 26);
2) Act with integrity and lead by
example (Ex. 26);
3) Be accountable for. your
performance and continuously
improve; invest time in your
development by actively seeking
opportunities to grow and asking for
feedback from team, peers and
leaders (Ex. 26);
4) Be present and on time as
scheduled (Ex. 26);
5) Foster an inclusive, diverse, safe
and secure culture; create an
environment of openness, trust and
recognition and reward great
performance (Ex. 26);
Legal argument and conclusion. Which
questions are before the Court is a legal
issue for the Court to decide, not a fact.
The declarant’s statements are a legal
argument and conclusion, which are not the
proper subject of a declaration.
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LEGAL_US_W # 91806882.3
-21-
TARGET’S OBJECTIONS TO
DECLARATION OF DAVID G. SPIVAK
U.S.D.C., C.D. CAL., NO. 5:17-CV-00155-ODW-SP
SPIVAK DECLARATION
Testimony Objections
6) Help assess, select and retain top
talent at the hourly team member and
team leader level and develop a
talented team; plan for right person,
right place, right time (Ex. 26);
7) Hold team members and team
leaders accountable for completing
required training and assess training
progress (Ex. 26);
8) Invest time in developing and
holding others accountable by
teaching, coaching, training and
delivering performance feedback (Ex.
26);
9) Effectively execute and lead the
team through new initiatives and
change (Ex. 26);
10) Empower the team to make the
right decisions for Target, our guests
and our team (Ex. 26);
11) Analyze schedules to ensure
proper staffing levels to meet
business needs (Ex. 26);
12) Lead and model a compliance
culture that mitigates financial and
legal risk (Ex. 26);
13) Protect confidential guest and
team member information (Ex. 26);
14) Drive a safety culture focused
on incident and injury prevention by
identifying, reporting and responding
to all safety concerns and trends in a
timely manner; modeling safe
behaviors and encouraging team
members through coaching and
recognition; ensuring productivity
isn’t prioritized over safety (Ex. 26);
15) Support well-being initiatives;
drive advocacy and adoption of
wellness for team members, guests
Case 5:17-cv-00155-ODW-SP Document 70 Filed 11/01/17 Page 22 of 31 Page ID #:5002
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LEGAL_US_W # 91806882.3
-22-
TARGET’S OBJECTIONS TO
DECLARATION OF DAVID G. SPIVAK
U.S.D.C., C.D. CAL., NO. 5:17-CV-00155-ODW-SP
SPIVAK DECLARATION
Testimony Objections
and community (Ex. 26);
16) Set challenging goals with clear
outcomes and establish productive
routines to ensure progress (Ex. 26);
17) Evaluate performance through
metrics and financials; identify the
root causes of problems and develop
and implement action plans to
achieve performance goals; hold
team leaders accountable to doing the
same (Ex. 26);
18) Educate team and guests about
our in-store and digital offerings,
services and loyalty programs (Ex.
26);
19) Educate team about Target
policies and processes (Ex. 26);
20) Use all available resources,
including company communication,
to manage and prioritize workload,
provide clear direction to the team,
educate the team about weekly and
seasonal promotions and special
events, and deliver superior execution
through Best Practices (Ex. 26);
21) Champion new technology and
processes to grow sales and
incorporate digital routines into store
culture (Ex. 26);
22) Maintain brand standards in all
areas of the store, including offstage
areas (Ex. 26);
23) Lead the team to follow all
safety guidelines, operating
procedures, and product freshness
and quality standards (Ex. 26);
24) Appropriately use and care for
in-store and personal protective
equipment; ensure all items are
accounted for per equipment control
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LEGAL_US_W # 91806882.3
-23-
TARGET’S OBJECTIONS TO
DECLARATION OF DAVID G. SPIVAK
U.S.D.C., C.D. CAL., NO. 5:17-CV-00155-ODW-SP
SPIVAK DECLARATION
Testimony Objections
guidelines (Ex. 26);
25) Educate the team about key
business focuses and measurements,
and how operational procedures
impact shortage and profitability (Ex.
26);
26) Leverage appropriate escalation
tools to solve process and/or. guest
issues; notify leader as needed (Ex.
26);
27) Be financially responsible;
prioritize and drive continuous
improvement in total store
profitability and company Earnings
Before Interest and Taxes (EBIT)
(Ex. 26);
28) Ensure the team is productive,
providing great service and the store
is meeting brand expectations (Ex.
26);
29) Build and lead a safe and secure
culture, focused on physical security
including key and alarm protected
areas, incident prevention and
incident response by influencing
store team members (Ex. 26);
30) Lead a shortage-awareness
culture and reduce shortage by
resolving my Shortage Dashboard
exceptions and ensuring merchandise
protection equipment is being
appropriately used (Ex. 26);
31) Lead a preventative theft culture
by proper assigning of the TPS Daily
Assignment Cards based on theft
activity and shortage results (Ex. 26);
32) Lead and execute reporting
analysis and intelligence to respond
to theft trends to resolve repetitive
issues of internal and external theft
Case 5:17-cv-00155-ODW-SP Document 70 Filed 11/01/17 Page 24 of 31 Page ID #:5004
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LEGAL_US_W # 91806882.3
-24-
TARGET’S OBJECTIONS TO
DECLARATION OF DAVID G. SPIVAK
U.S.D.C., C.D. CAL., NO. 5:17-CV-00155-ODW-SP
SPIVAK DECLARATION
Testimony Objections
trends (Ex. 26);
33) Conduct apprehensions strictly
adhering to AP Directives (Ex. 26);
34) Lead the execution of safety
programs and best practices to reduce
team member and guest safety
incidents and injuries (Ex. 26);
35) Partner with store and district
leadership during security incidents
or crisis situations to minimize
incident impact (Ex. 26);
36) Lead compliance regulation
programs and assessments as directed
by leadership (Ex. 26);
37) Ensure vendors are adhering to
all check-in guidelines, are wearing
name badges and are operating only
during approved time (Ex. 26);
38) Build partnerships with local
Law Enforcement and Emergency
Management Agencies by
representing and encouraging store
team participation in community
events (Ex. 26);
39) Inspecting and monitoring
(including monitoring sales and/or
payroll, asking team members about
productivity or their tasks, assessing
conditions and opportunities in the
sales floor, backroom or other areas
of the store) (Ex. 24);
40) Analyzing Operational
Performance (including analysis of
MyPerformance and other
operational reporting, development of
action plans to address operational
opportunities, implement follow-up
on DTL and/or leadership visits,
completion of selfassessments) (Ex.
24);
Case 5:17-cv-00155-ODW-SP Document 70 Filed 11/01/17 Page 25 of 31 Page ID #:5005
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LEGAL_US_W # 91806882.3
-25-
TARGET’S OBJECTIONS TO
DECLARATION OF DAVID G. SPIVAK
U.S.D.C., C.D. CAL., NO. 5:17-CV-00155-ODW-SP
SPIVAK DECLARATION
Testimony Objections
41) Instructing and directing
(including prioritizing and assigning
tasks to your teams) (Ex. 24);
42) Training, developing, providing
recognition and coaching your team
members (including team huddles,
chat sessions, team development,
overseeing and participating in
training of new team members,
conducting and facilitating New
Team Member Orientation,
demonstrating skills that team
members need to perform their
duties, instructing and monitoring
team members regarding appropriate
meal periods and rest breaks) (Ex.
24);
43) Participating in leadership
learning groups and training groups
(Ex. 24);
44) Planning and scheduling
(including attending leadership
meetings, statuses, planning for
transitions, key ads and special
events, setting priorities and creation
of task lists, reviewing and analyzing
reports, communications from HQ or
leaders, scheduling of team members)
(Ex. 24);
45) Managing merchandise
transitions and/or adjacencies
(including transition planning,
scheduling, recapping/follow up).
This does not include stocking. (Ex.
24);
46) Managing in-stocks (including
research and DSD store order
responsibilities, pricing and
presentation). This does not include
stocking. (Ex. 24);
47) Managing stocking functions,
Case 5:17-cv-00155-ODW-SP Document 70 Filed 11/01/17 Page 26 of 31 Page ID #:5006
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LEGAL_US_W # 91806882.3
-26-
TARGET’S OBJECTIONS TO
DECLARATION OF DAVID G. SPIVAK
U.S.D.C., C.D. CAL., NO. 5:17-CV-00155-ODW-SP
SPIVAK DECLARATION
Testimony Objections
including out-of-stock issues
(including ensuring timely execution
of replenishment, receiving, reverse
logistics and backroom processes to
ensure the salesfloor is in stock) (Ex.
24);
48) Providing performance feedback
(feedback on completion of daily
assignments, attending contribution
meetings, writing and delivering
reviews, using the counseling and
corrective action process) (Ex. 24);
49) Identifying staffing needs
(including developing a staffing
forecast, recruiting, reviewing
applications, interviewing and
making or participating in decisions
related to hiring, promotions, and
terminations) (Ex. 24);
50) Managing guest issues
(including dealing with guests who
ask to speak to a manager and/or a
guest who is referred by a team
member because of a special issue).
This does not include the serving of
guests. (Ex. 24);
51) Managing vendors (including
communicating space needs and
inventory information) (Ex. 24);
52) LOD managerial
responsibilities/managing store
facilities (including managing guest
expectations, identifying
opportunities and creating solutions)
(Ex. 24);
53) Managing profit (including
controlling payroll) (Ex. 24);
54) Managing special issues
(including conducting investigations)
(Ex. 24);
Case 5:17-cv-00155-ODW-SP Document 70 Filed 11/01/17 Page 27 of 31 Page ID #:5007
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LEGAL_US_W # 91806882.3
-27-
TARGET’S OBJECTIONS TO
DECLARATION OF DAVID G. SPIVAK
U.S.D.C., C.D. CAL., NO. 5:17-CV-00155-ODW-SP
SPIVAK DECLARATION
Testimony Objections
55) Managing legal compliance
(including partnering with STL and
ETLs to ensure that teams are
following meal period and rest break
policy requirements, adhering to all
minor work rules, ensuring all team
members are paid properly and
timely) (Ex. 24);
56) Managing team development
(including ensuring all team members
understand and execute their Core
Roles, fostering a learning
environment by leading training and
development programs, identifying
and supporting potential promotion
candidates) (Ex. 24);
57) Managing “team brand”
presentation (including ensuring three
Team Colors Policy is consistently
applied to all team members and
name badges are worn) (Ex. 24);
58) Managing employee relations
(including responding to team
member concerns and issues
promptly, investigating issues
thoroughly and neutrally, escalating
and partnering with HRBP as
appropriate, administering leave of
absence policies and processes in
partnership with Hewitt, managing
Workers’ Compensation) (Ex. 24);
59) Managing team performance
(including completing accurate
assessments of performance and
potential, aiding development of
personal performance, assisting
leaders with coaching and corrective
action, serving as a third-party
participant in performance
conversations, assisting STL in the
development of ETLs, Team Leaders
and Interns, facilitating Contribution
Case 5:17-cv-00155-ODW-SP Document 70 Filed 11/01/17 Page 28 of 31 Page ID #:5008
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LEGAL_US_W # 91806882.3
-28-
TARGET’S OBJECTIONS TO
DECLARATION OF DAVID G. SPIVAK
U.S.D.C., C.D. CAL., NO. 5:17-CV-00155-ODW-SP
SPIVAK DECLARATION
Testimony Objections
Meetings) (Ex. 24);
60) Ordering supplies (including HR
supplies, New Hire Packets, other
office supplies) (Ex. 24);
61) Retaining Team Members
(including using company retention
programs to monitor store culture and
discussing patterns with HRBP and
STL, analyzing turnover rates and
developing plans to reduce it,
ensuring that teams are giving
recognition, soliciting team member
feedback through surveys, chat
sessions, facilitating open
communication within the store) (Ex.
24);
62) Ensuring all AP teams and
LODs establish and maintain a safe
and secure culture (including training
AP teams on safe and secure
programs, identifying and discussing
safe and secure issues particular to
your store, addressing safe and secure
issues immediately, monitoring all
safety-related equipment to ensure
proper functioning and following-up
on needed repairs, sharing and
establishing partnerships with the AP
mission) (Ex. 24);
63) Minimizing theft and fraud
(including utilizing reports,
protection programs, intelligence and
equipment to identify theft and fraud
issues, develop and implement
solutions that minimize theft and
maximize sales) (Ex. 24);
64) Managing shortage issues
(including identifying shortage issues
and participating in developing a plan
to address them) (Ex. 24);
65) Managing crisis situations
Case 5:17-cv-00155-ODW-SP Document 70 Filed 11/01/17 Page 29 of 31 Page ID #:5009
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LEGAL_US_W # 91806882.3
-29-
TARGET’S OBJECTIONS TO
DECLARATION OF DAVID G. SPIVAK
U.S.D.C., C.D. CAL., NO. 5:17-CV-00155-ODW-SP
SPIVAK DECLARATION
Testimony Objections
(including robberies or violence-
related incidents and communicating
to team members regarding how to
handle these types of situations) (Ex.
24);
66) Impacting store profit by
prioritizing company focus areas
(including providing direction to
team members on focus areas and
opportunities that exist at your
location and how they can impact
profit/shortage) (Ex. 24);
67) Managing merchandise
protection programs to minimize
theft and maximize sales (including
providing direction, researching and
providing answers to LODs to
manage the program and to team
members to properly execute the
program) (Ex. 24);
68) Managing cash (including
researching cash shortages,
conducting investigations as
necessary, partnerships with the Cash
Escalation Team). This does not
include ringing up sales, (Ex. 24);
69) Building relationships necessary
to ensure safety (including partnering
with other store’s AP, local law
enforcement, community agencies
and other retailers to share
intelligence data and minimize or
mitigate investigative issues and
close cases) (Ex. 24);
70) Managing overall store safeness
and security in the store (including
partnering with other ETLs on theft
issues, monitoring alarms, key
control, physical security
compliance) (Ex. 24);
71) Overnight or early mornings to
Case 5:17-cv-00155-ODW-SP Document 70 Filed 11/01/17 Page 30 of 31 Page ID #:5010
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LEGAL_US_W # 91806882.3
-30-
TARGET’S OBJECTIONS TO
DECLARATION OF DAVID G. SPIVAK
U.S.D.C., C.D. CAL., NO. 5:17-CV-00155-ODW-SP
SPIVAK DECLARATION
Testimony Objections
conduct surveillances and work with
the overnight team (including
conducting surveillances as
investigations dictate, conducting
required early morning/overnights to
identify and resolve any safeness or
AP issues that exist directly with the
team and leadership) (Ex. 24); and
72) Managing store facilities as
LOD (including managing guest
expectations of Fast Service and 60
second response time) (Ex. 24).”
Spivak Decl., ¶ 74.
32. “Ms. Faraji declared that, to her
knowledge, this is the time sheet that
she completed and submitted to
Target on December 5, 2014 as an
ETL-AP trainee. See DNF, ¶ 3.”
Spivak Decl., ¶ 87.
Inadmissible hearsay (Fed. R. Evid. 801).
The declarant’s statement of what plaintiff
testified is inadmissible hearsay.
III. CONCLUSION
Based on the foregoing objections and grounds, the Court should sustain Target’s
objections to specific portions of the Declaration of David Spivak as set forth above.
Dated: November 1, 2017. JEFFREY D. WOHL
JULLIE Z. LAL
ANDREA B. DICOLEN
PAUL HASTINGS LLP
By: /s/ Jeffrey D. Wohl
Jeffrey D. Wohl
Attorneys for Defendant Target
Corporation
Case 5:17-cv-00155-ODW-SP Document 70 Filed 11/01/17 Page 31 of 31 Page ID #:5011