Butler v. Onyejie et al

Filing 79

SECOND SCHEDULING ORDER; ORDER DIRECTING Clerk's Office to Send Local Rule 281 to Plaintiff signed by Magistrate Judge Michael J. Seng on 2/17/2014. Telephonic Pretrial Conference set for 3/21/2014 at 09:30 AM in Courtroom 6 (MJS) before Magistrate Judge Michael J. Seng; Jury Trial set for 4/29/2014 at 08:30 AM in Courtroom 6 (MJS) before Magistrate Judge Michael J. Seng. (Attachments: # 1 ELP Forms, # 2 ELP Forms, # 3 ELP Forms, # 4 Local Rule 281)(Sant Agata, S)

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ATTACHMENT “B” to Preliminary Discovery and Scheduling Order

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Perry C. Butler,
Plaintiff,

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v.

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No. 1:11-cv-0723-MJS (PC)

EXPEDITED LITIGATION

Dr. O. Onyejie, et al.,

AGREEMENT

Defendants.

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AND
ORDER THEREON1

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In order to lessen the time and cost of litigation, the parties to this case hereby

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stipulate and agree to those terms below which they have followed with entry of their
initials or the initials of their counsel of record. Each party shall strike any term(s) it is
unwilling voluntarily to be bound to. A party’s initials below a provision will be deemed a
request by that party that the Court accept, adopt and order compliance with that term.
However, no Expedited Litigation Procedures (hereinafter “ELP”) initialed by a party will
be implemented unless and until accepted by all parties and approved by the Court or
otherwise made the order of the Court.
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Revised December 23, 2013

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AGREEMENT

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1. Consent to Magistrate Judge Jurisdiction. The party whose initials appear

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immediately below consents to the jurisdiction of a Magistrate Judge for all purposes in

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accordance with 28 U.S.C. § 636(c)(1).

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Plaintiff_____

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2. Early trial date.

Defendant ____

The party whose initials appear immediately below asks the

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Court to assign a firm trial date no more than one hundred eighty days from the date of
filing this ELP Agreement with the Court. The parties acknowledge and agree that once

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assigned no continuance of the trial date will be considered except in unforeseeable and

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extraordinary circumstances.

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Plaintiff_____

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Defendant ____

3. Discovery

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A. Initial exchanges – Within ____ days2 of the Court’s adoption of an

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ELP Agreement, the parties shall informally, and without further order of the Court, make

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available to one another the following information and documents which are not subject

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to a valid work product or attorney-client privilege:

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1. The names and last known whereabouts of any person believed

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to be a percipient witness to the event giving rise to the claim in

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the operable complaint (the ”event”) along with a brief (not to

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exceed 100 word) description of what it is believed the witness
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perceived.

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Plaintiff_____

Defendant ____

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The Court strongly recommends that initial disclosures be made within 30 days.

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2.

Medical records reflecting treatment related to the event.

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Plaintiff_____

Defendant ____

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3. Other “writings” (as defined in F.R.E. § 1001), if any, relating to

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the event, to include, but not be limited to, writings reflecting;

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a. disciplinary action initiated against any party to the

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litigation related to the event.

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b. administrative claims proceedings and appeals relating to

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the event.

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Plaintiff_____

Defendant ____

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4. Statements made or attributed to any party or witness relating to

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the event.

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Plaintiff_____

Defendant ____

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5. The identities of no more than ___

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non-party percipient

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witnesses (included in section 3.A.1, above) whom each party
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wishes to call as witnesses at trial.

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The Court finds that except in very unique cases, the calling of more than two percipient witnesses to
testify is redundant and wasteful, particularly where one or more of the parties also describe the event.

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Plaintiff_____

Defendant ____

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6. A list of facts believed by each party not to be in dispute (e.g.,
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date, location, parties, witnesses, etc., to the event).

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Plaintiff_____

Defendant ____

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7. Each party shall have an ongoing mandatory obligation to update
and

exchange

this

information

voluntarily

as

the

case

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progresses.

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Plaintiff_____

Defendant ____

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8. Each party reserves the right to seek an order of the Court
relieving, for good cause shown, that party of the obligation to

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exchange

specified

information

otherwise

designated

for

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exchange in this section.

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Plaintiff_____

Defendant ____

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9. A party seeking leave to call more than two percipient witnesses
to testify at trial shall provide the information called for in section

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3..A. 1, 4 and 5, above, as to each said proposed witness.
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Plaintiff_____

Defendant ____

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B. Discovery Limits
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1. Percipient witness depositions - Each party may, at its own

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option and expense, depose an opposing party and each of the

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percipient witnesses identified in accordance with section 3.A.4.,

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above. Absent order of the Court for good cause shown, no other

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percipient witness depositions will be allowed.

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Plaintiff_____

Defendant ____

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2. Expert witness discovery - Fourteen days before the pretrial
conference provided for in Section VII, below, each party shall

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make a written disclosure to the other of the identity and
qualifications of each non-percipient witness expected to be

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called to give expert opinion testimony at trial and include a

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written summary of the facts and opinions to which the expert is

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expected to testify at trial.

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No expert’s testimony will be

permitted to extend beyond the bounds of the summary. Absent

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order of the Court for good case shown, no expert depositions
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shall be allowed. The Court will determine at the time of the

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pretrial conference provided for in Section 5, below, whether any

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party may call more than one expert witness to testify at trial.
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Plaintiff_____

Defendant ____

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3. No written discovery – Other than as provided herein or on

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order of the Court for good cause shown, there shall be no
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written discovery.

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Plaintiff_____

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Defendant ____

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4. Discovery deadline – Other than the continuing voluntary

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exchange of information called for in Section 3.A., above, all

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discovery provided for under the EPL Agreement or otherwise by

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order of the Court shall be concluded not later than thirty days

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prior to the date set for the pretrial conference called for in

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Section 5., below.

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Plaintiff_____

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Defendant ____

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4. Motions
A. Non-dispositive motions – A discovery or other non-dispositive motion
shall be in a written narrative form, typed in twelve point type or clearly hand-printed, on

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not more than three double spaced 8.5 by 11 inch pages. Legal authorities need not be
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specifically cited or summarized. A party opposing such a motion shall have no more

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than seven days following service of the motion to respond in a writing of the same style

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and length or less. No reply or other papers shall be filed. Unless the Court determines
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that other procedures are necessary, it shall rule on the motion by minute order and

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without oral argument. There shall be no reconsideration or review of rulings on non-

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dispositive motions.

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Plaintiff_____

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Defendant ____

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B. Dispositive motions – The case having

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Magistrate Judge in accordance with

been screened by the

28 U.S.C. § 1915A(a) and found suitable for

expedited litigation, no dispositive motions may be filed except on order of the Court for
good cause shown. Discovery, after a screening order has issued, of a potential Heck4

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bar or failure to exhaust defense in the action, may constitute good cause.

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Plaintiff_____

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Defendant ____

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5. Pretrial Conference

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The Court shall schedule a telephonic pretrial conference no less than three

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weeks or more than four weeks prior to the trial date.
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No later than ten days before the pretrial conference, each of the parties shall file

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with the Court a Pretrial Memorandum containing the following information:

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A. A brief narrative summary of the claims and defenses.

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B. A list of facts believed not in dispute.

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C. A list of all witnesses expected to be called to present evidence on

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direct by each party.

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Heck v. Humphery, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed. 2d. 383 (1994).

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D. A narrative summary of the direct testimony of each party and each

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non-party witness, lay and percipient, to be called by a party.

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E. Identification by inclusive page and line numbers of all deposition

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testimony a party wishes to introduce into evidence.
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F. Identification of anticipated trial evidentiary or procedural disputes.

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G. Proposed jury instructions.

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Plaintiff_____

Defendant ____

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Prior to or orally during the pretrial conference the parties shall make all
reasonably foreseeable motions in limine . The Court shall rule on them during the

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pretrial conference, in the pretrial order or at the start of trial, as it deems appropriate.
This provision shall not foreclose the bringing of additional unforeseeable motions in
limine.

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Plaintiff_____

Defendant ____

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For Plaintiff ________________::

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__________________________

______________________________

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Date

Signature of Plaintiff or his counsel

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______________________________

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Printed name of signatory for Plaintiff

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For Defendant(s)________________________________________________:

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__________________________
Date

______________________________
Signature of Defendant or his counsel

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______________________________

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Printed name of signatory for Defendants(s)

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For Defendant(s)________________________________________________:
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__________________________
Date

______________________________
Signature of Defendant or his counsel

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______________________________
Printed name of signatory for Defendants(s)

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ORDER
Good cause appearing, the above ELP Agreement is accepted, adopted and
made the order of the Court.

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Date: _______________

_____________________________
U.S. Magistrate Judge

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