Calloway v. Warden Corcoran State Prison et al
Filing
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ORDER granting in part and denying in part 145 Motion to reopen Discovery signed by Magistrate Judge Barbara A. McAuliffe on 3/27/2014. (Lundstrom, T)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JAMISI JERMAINE CALLOWAY,
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Plaintiff,
v.
A. K. SCRIBNER, et al.,
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Defendants.
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Case No.: 1:05-cv-01284-BAM PC
ORDER GRANTING IN PART AND DENYING IN
PART PLAINTIFF’S MOTION TO REOPEN
DISCOVERY
(ECF No. 145)
SIXTY-DAY DEADLINE
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I.
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Plaintiff Jamisi Jermaine Calloway (“Plaintiff”) is a state prisoner proceeding with counsel in
Background
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this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s first amended
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complaint, filed on December 13, 2007, against Defendants Montgomery, Babb and Bhatt for
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violation of the Eighth Amendment. Discovery in this action has closed and the parties’ cross-motions
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for summary judgment have been denied. The parties have consented to the jurisdiction of the United
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States Magistrate Judge.
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On December 4, 2013, the Court issued an Amended Second Scheduling Order. Pursuant to
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that Order, the Court set a telephonic trial confirmation hearing for January 16, 2014, and a jury trial
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for February 25, 2014. The Court also set pretrial dates related to the filing of pretrial statements and
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the procedures for obtaining the attendance of incarcerated and unincarcerated witnesses. (ECF No.
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127.)
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On December 16, 2013, Plaintiff’s pro bono counsel filed a notice of appearance in this action.
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(ECF Nos. 130, 131.) On November 19, 2013, Defendants designated new counsel from the Attorney
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General’s office, and terminated prior counsel. (ECF No. 133.)
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On December 20, 2013, Plaintiff filed a motion to continue the jury trial and pretrial deadlines
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set by the Amended Second Scheduling Order for 120 days. (ECF No. 135.) On January 14, 2014,
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the Court granted the motion to modify the Amended Second Scheduling Order and set this matter for
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a telephonic trial confirmation hearing on May 7, 2010. Additionally, the Court ordered Plaintiff to
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file any motion to reopen discovery within fifteen days. (ECF No. 144.)
On January 29, 2014, Plaintiff filed the instant motion to reopen discovery. (ECF No. 145.)
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Defendants opposed the motion on February 18, 2014, and Plaintiff replied on February 21, 2014.
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(ECF Nos. 146, 147.) The motion is deemed submitted. Local Rule 230(l).
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II.
Legal Standard
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Pursuant to Rule 16(b), a scheduling order “may be modified only for good cause and with the
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judge’s consent.” Fed. R. Civ. P. 16(b)(4). The “good cause” standard “primarily considers the
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diligence of the party seeking the amendment.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604,
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609 (9th Cir. 1992). The court may modify the scheduling order “if it cannot reasonably be met
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despite the diligence of the party seeking the extension.” Id. If the party was not diligent, the inquiry
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should end. Id.
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Courts have permitted the reopening of discovery where a state prisoner proceeding pro se
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moved to reopen discovery following the appointment or retention of counsel after the discovery cut-
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off date. In so doing, courts have considered not only the diligence of the prisoner in pursuing
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discovery, but also the necessity of additional discovery for trial preparation and for resolution of the
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matter on the merits. See, e.g., Draper v. Rosario, 2013 WL 6198945, at *1-2 (E.D. Cal. Nov. 27,
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2013) (court permitted pro se prisoner to reopen discovery when he acquired pro bono counsel after
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the discovery cut-off date; counsel alone did not entitle plaintiff to additional discovery, but limited
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additional discovery would serve the ultimate resolution of case on the merits); Woodard v. City of
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Menlo Park, 2012 WL 2119278, at *1-2 (N.D. Cal. June 11, 2012) (discovery reopened for pro se
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plaintiff who obtained counsel after the discovery cut-off date, noting that additional fact discovery
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would serve the interest of justice and the public policy of adjudicating cases on the merits);
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Henderson v. Peterson, 2011 WL 441206, at *2 (N.D. Cal. Feb. 3, 2011) (court noted that despite pro
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se plaintiff’s discovery efforts, he was unable to gain access to evidence that he might have obtained
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had he been represented by counsel).
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III.
1. Plaintiff’s Position
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Discussion
Plaintiff moves for a court order (1) modifying the current scheduling order to reopen
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discovery until May 7, 2014; (2) permitting Plaintiff to serve each defendant with up to 25
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interrogatories beyond what has already been served; (3) deposing Defendants Montgomery, Babb and
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Bhatt; (3) propounding written discovery of 18 new witnesses disclosed in Defendants’ pretrial
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statement; and (4) deposing the newly identified witnesses.
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Plaintiff argues that good cause exists to modify the scheduling order and reopen discovery.
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First, Plaintiff contends that he diligently pursued discovery in this matter, but because of his pro se
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status and limited resources he was unable to gain access to evidence and information pertinent to his
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claims, such as the identity of witnesses with discoverable information, documents related to
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Defendants’ searches of Plaintiff, including the forcible enema on March 14, 2013, and documents
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Defendants intend to use in support of their defenses. Plaintiff further contends that because he
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proceeded pro se and was incarcerated, he was unable to obtain initial disclosures required by Federal
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Rule of Civil 26(a) and was unable to take any depositions.
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Second, Plaintiff asserts that he was not dilatory in conducting discovery in this matter, having
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attempted to obtain discovery as best as he could. For instance, Plaintiff served requests for
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production of documents on all defendants, which included pertinent medical records. Plaintiff’s
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counsel now reports that Plaintiff only received a portion of the medical files and requested
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documents. (ECF No. 145-1, Declaration of Jason H. Tokoro (“Tokoro Dec.”), Ex. B.) Plaintiff also
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served requests for admissions and interrogatories, but did not receive meaningful responses. (Id.,
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Exs. C, D.)
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Third, Plaintiff asserts that good cause exists to reopen discovery based on the 18 new
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witnesses identified in Defendants’ pretrial statement, including 10 expert witnesses. Although
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Defendants have clarified that they intend to call 11 witnesses at trial, many of them were not
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identified until the pretrial statement. (ECF No. 145-1, Tokoro Dec. ¶ 5.) Based on the recent
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disclosure, Plaintiff believes that Defendants cannot now complain about the reopening of discovery.
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As a final matter, Plaintiff believes that additional discovery will not prejudice Defendants or
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delay the proceedings because there is no trial date set in this matter and Defendants will have
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adequate time to respond to discovery.
2. Defendants’ Opposition
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Defendants respond that Plaintiff failed to diligently pursue discovery while proceeding pro se
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and he is not entitled to additional time simply because he is now represented by counsel. With regard
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to depositions, Defendants argue that Plaintiff took no steps to depose any witnesses in this case prior
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to the close of discovery. Although Defendants explained the logistics of scheduling a deposition,
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Plaintiff was not prevented from conducting deposition discovery. (ECF No. 146, pp. 2-3.) In other
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words, Plaintiff did not unsuccessfully attempt to conduct deposition discovery prior to the relevant
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deadline.
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With regard to written discovery, Defendants also argue that Plaintiff did not diligently pursue
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his motion to compel. On June 7, 2012, Plaintiff filed a motion to compel, which the Court denied as
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procedurally deficient on July 24, 2012. (ECF No. 93.) Although the Court extended the deadline to
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file a motion to compel, Plaintiff did not re-file his motion. He also did not request to serve additional
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written discovery or to exceed the discovery limits imposed by the Federal Rules of Civil Procedure.
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Thus, Defendants contend that Plaintiff has not established good cause to reopen discovery in this
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matter.
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Defendants further argue that the requested discovery is excessive and unnecessary. First,
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Defendants indicate that documents from Plaintiff’s central file, including his medical records have
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been provided to Plaintiff’s counsel. (ECF No. 146, p. 4.) Defendants also report that the testimony
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of 8 witnesses (CDCR Chief Deputy Warden V. Yamamoto, CDCR Correctional Officer A. Pyle,
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CDCR Correctional Officer P. Tome, CDCR Sgt. V. Rangel, CDCR Correctional Officer W. Alford,
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CDCR Psychological Technician R. Dowling, CDCR R. Garrison, LCSW, and CDCR R. Gibson,
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MSW) likely would be limited to the content of documents they authored. As result, their depositions
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would not be necessary. (ECF No. 146, pp. 4-5.)
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Defendants next argue that the requested depositions and interrogatories will significantly add
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to the expense of litigating this matter, causing Plaintiff’s attorneys’ fees and costs to increase beyond
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the value of Plaintiff’s claimed injury. As a practical matter, the increased litigation costs would
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remove any motivation on the part of Defendants to resolve this case on a “cost of defense” basis.
3. Plaintiff’s Reply
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Plaintiff replies that he has demonstrated due diligence in pursuing discovery. He actively
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pursued written discovery, but was hampered by his pro se and indigent status. Plaintiff asserts that
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despite his efforts he was unable to gain access to crucial evidence and information that he would have
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received had he been represented. He also did not have the financial means to pursue depositions in
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this matter.
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With regard to the requested discovery, Plaintiff contends that his request related to the newly
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disclosed witnesses is not excessive or surprising. Per Plaintiff, there is no dispute that these witnesses
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possess relevant information and there is no indication that their testimony would be limited to the
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documents that they authored. As a final matter, Plaintiff essentially asserts that Defendants’
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arguments regarding settlement are unavailing since Defendants have not demonstrated any
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motivation to resolve this case.
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4. Analysis
Having considered the parties’ arguments, the Court finds good cause to reopen discovery in
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this action as it will assist in resolution of this matter on its merits. Plaintiff diligently pursued
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discovery to the best of his ability given his pro se and indigent status. In particular, Plaintiff served
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written discovery, but was unsuccessful in his efforts to compel further responses due to his pro se
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status. Such difficulty is evident by his procedurally deficient motion to compel. (ECF Nos. 90, 93.)
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Plaintiff also was unsuccessful in conducting depositions given his indigent status. Although
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Defendants contend that Plaintiff was not diligent in pursuing depositions because he took no steps to
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depose any witnesses, Defendants do not identify what steps Plaintiff could have taken to schedule
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such depositions. In the absence of financial means, Plaintiff could not have secured an appropriate
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deposition officer or obtained copies of any deposition transcript. See Fed. R. Civ. P. 30(b)(5), (f)(3).
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However, once Plaintiff secured representation in this matter, counsel diligently sought to modify the
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relevant deadlines and to reopen discovery. (ECF Nos. 135, 145.)
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The Court does not find that Defendants will be prejudiced by the reopening of discovery. A
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trial date has not been scheduled in this matter and Defendants will be afforded sufficient time to
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respond to any permitted discovery. Moreover, the Court finds that the proposed scope of discovery
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should be narrowed.
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Written Discovery
With regard to written discovery, it appears from Defendants’ representations that Plaintiff’s
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counsel has been provided with central file documents and medical records relevant to Plaintiff’s
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claims in this action. There is no indication that further document requests are warranted. Plaintiff
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also has not established to the Court’s satisfaction that an additional 25 interrogatories for each
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defendant is warranted in conjunction with written discovery propounded on any newly identified
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witness. Plaintiff previously propounded written discovery on each defendant and any further written
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discovery should be narrowly tailored to the remaining issues in this matter, namely Plaintiff’s
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allegations that Defendants subjected him to an unnecessary and painful enema procedure in violation
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of the Eighth Amendment. As such, the Court finds it appropriate to permit Plaintiff to propound ten
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(10) additional interrogatories to each defendant in this action.
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Deposition Discovery
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With regard to deposition discovery, the Court will permit Plaintiff to conduct depositions of
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Defendants Montgomery, Babb and Bhatt. This additional fact discovery will assist in resolving this
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matter on its merits. However, conducting depositions of all percipient and expert witnesses identified
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in Defendants’ pretrial statement is excessive.
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Percipient Witnesses
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In addition to Defendants Montgomery, Babb and Bhatt, Defendants have identified 12
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additional percipient witnesses, which include 2 custodians of records. Plaintiff does not need to
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depose the custodians of records. Further, Defendants have indicated that 8 other percipient witnesses
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(CDCR Chief Deputy Warden V. Yamamoto, CDCR Correctional Officer A. Pyle, CDCR
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Correctional Officer P. Tome, CDCR Sgt. V. Rangel, CDCR Correctional Officer W. Alford, CDCR
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Psychological Technician R. Dowling, CDCR R. Garrison, LCSW, and CDCR R. Gibson, MSW)
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likely will testify only to the content of documents they authored. These documents have been
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provided to Plaintiff’s counsel. Accordingly, there are only two remaining percipient witnesses
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appropriate for deposition: (1) CDCR Sgt. T. Gonzalez, and (2) CDCR Sgt. J. Torres. Defendants
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will be granted leave to conduct the depositions of Sgt.Gonzalez and Sgt. Torres.
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Expert Witnesses
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Defendants have identified 9 expert witnesses.1 As discussed above, the Court has granted
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Plaintiff leave to depose Sgt. Gonzalez, who is listed as both a percipient and an expert witness. The
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remaining eight (8) expert witnesses proposed by Defendants appear to be providing duplicative or
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cumulative testimony.
According to Defendants’ pretrial statement, proposed experts CDCR Bruce Barnett, M.D., and
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CDCR P. Zuckerman, M.D., are expected to “testify concerning the injuries and treatment caused by
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the incident of March 14, 2003, documented in the Calloway’s medical records, Calloway’s pre-
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existing injuries and conditions, and Calloway’s subsequent injuries and conditions.” (ECF No. 140,
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p. 12.) Similarly, proposed experts CDCR Shama Chaiken, Ph.D, CDCR Bret McLaughlin, Ph.D,
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CDCR B. Becich, Ph.D, CDCR B. Wagner, Ph.D, CDCR R. Garrison, LCSW, and CDCR R. Gibson,
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MSW, are expected to “testify concerning the injuries and treatment caused by the incident of March
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14, 2003, documents in the Calloway’s medical records, Calloway’s pre-existing injuries and
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conditions, and Calloway’s subsequent injuries and conditions.” (ECF No. 140, pp. 12, 13.)
The Court will not permit cumulative testimony at trial. Fed. R. Evid. 403 (court may exclude
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relevant evidence if its probative value is substantially outweighed by a danger of needlessly
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presenting cumulative evidence). As such, the parties are directed to meet and confer in good faith to
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narrow the number of Defendants’ experts to be used at trial and to be deposed by Plaintiff. If the
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parties are unable to reduce the number of Defendants’ experts, then Plaintiff shall be given leave to
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Defendants originally identified 10 expert witnesses. However, they subsequently clarified
that Sgt. Torres would testify solely as a percipient witness. (ECF No. 146, p. 5.)
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depose all of Defendants’ proposed experts listed in the January 3, 2014 pretrial statement. In that
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event, however, the Court may exercise its discretion to preclude the trial testimony of those expert
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witnesses not properly identified or limited by Defendants during meet and confer discussions.
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IV.
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Based on the above, Plaintiff’s motion to reopen discovery is GRANTED IN PART and
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DENIED IN PART as follows:
1. Plaintiff is granted leave to propound ten (10) additional interrogatories to each defendant
in this action;
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Conclusion and Order
2. Plaintiff is granted leave to conduct the following depositions: (1) Defendant
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Montgomery; (2) Defendant Babb; (3) Defendant Bhatt; (4) Sgt. Gonzalez; and (5) Sgt.
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Torres.
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3. Within ten (10) days of the date of this order, the parties are directed to meet and confer in
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good faith to reduce the number of Defendants’ experts to be called at trial and to be
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deposed by Plaintiff. If the parties cannot reduce the number of Defendants’ experts, then
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Plaintiff is granted leave to conduct the depositions of all proposed experts identified in
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Defendants’ pretrial statement; and
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4. The limited discovery outlined above shall be completed within sixty (60) days of the date
of this order.
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IT IS SO ORDERED.
Dated:
/s/ Barbara
March 27, 2014
A. McAuliffe
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UNITED STATES MAGISTRATE JUDGE
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