Ledesma v. Adame et al

Filing 41

ORDER Setting Evidentiary Hearing and Opening Discovery only on the Issue of Exhaustion signed by Magistrate Judge Erica P. Grosjean on 05/04/2017. Evidentiary Hearing set for 7/28/2017 at 10:00 AM in Courtroom 10 (EPG) before Magistrate Judge Erica P. Grosjean. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOSE LEDESMA,

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1:13-cv-01227-AWI-EPG (PC)
Plaintiff,

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v.

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ORDER SETTING EVIDENTIARY
HEARING AND OPENING DISCOVERY
ONLY ON THE ISSUE OF EXHAUSTION
(ECF NO. 30)

ADAME, et al.,

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Defendants.

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Jose Ledesma (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in

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this civil rights action filed pursuant to 42 U.S.C. § 1983. On May 3, 2017, the Court held a

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telephonic conference regarding the setting of an evidentiary hearing on the issue of exhaustion of

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administrative remedies. (ECF No. 39). Plaintiff Jose Ledesma telephonically appeared on his

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own behalf. Counsel Colin Shaff telephonically appeared on behalf of Defendants. The Court

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now sets an evidentiary hearing, and opens discovery only on the issue of exhaustion of

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administrative remedies.

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IT IS HEREBY ORDERED THAT:

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1. An Albino evidentiary hearing regarding the issue of exhaustion of administrative

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remedies is set before Magistrate Judge Erica P. Grosjean on July 28, 2017, at

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10:00 a.m., at the Robert E. Coyle Federal Courthouse, 2500 Tulare Street, Fresno,

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CA 93721, in Courtroom # 10.

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2. The parties are now granted leave to serve discovery only on the issue of
exhaustion of administrative remedies.

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3. Discovery requests may be served up to and including May 18, 2017. Responses

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to discovery requests must be served by June 15, 2017. June 15, 2017, is also the

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last day to take depositions.

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4. Discovery requests shall be served by the parties pursuant to Federal Rule of Civil

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Procedure 5 and Local Rule 135. Discovery requests and responses shall not be

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filed with the Court unless required by Local Rules 250.2, 250.3, or 250.4

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(providing that discovery requests shall not be filed unless or until there is a

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proceeding in which the document or proof of service is at issue). A party may

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serve on any other party no more than 5 interrogatories, 5 requests for production

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of documents, and 5 requests for admission.

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5. Boilerplate objections are disfavored and may be summarily overruled by the

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Court. Responses to document requests shall include all documents within a

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party’s possession, custody or control. Fed. R. Civ. P. 34(a)(1). Documents are

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deemed within a party’s possession, custody, or control if the party has actual

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possession, custody, or control thereof, or the legal right to obtain the property on

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demand.1

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6. If any party withholds a document on the basis of privilege, that party shall

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provide a privilege log to the requesting party identifying the date, author,

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recipients, general subject matter, and basis of the privilege within fourteen (14)

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days after the date that responses are due. Failure to provide a privilege log within

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this time shall result in a waiver of the privilege. To the extent the requesting

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party disputes whether a document is privileged, it can raise that issue in a motion

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to compel further discovery responses. If a party withholds a document on the

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basis of the official information privilege, the requesting party may request that the

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Court conduct an in camera review of such document so that the Court can

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Defendant(s)’ responses should be consistent with their right to request documents pursuant to
California Government Code § 3306.5 (“Each employer shall keep each public safety officers’ personnel file or a true
and correct copy thereof, and shall make the file or copy thereof available within a reasonable period of time after a
request thereof by the officer.”).

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balance the moving party's need for the documents in the litigation against the

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reasons that are asserted in defending their confidentiality. In any such request for

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in camera review, the party requesting review shall identify, with specificity, the

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document(s) for which review is sought.

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7. The parties are required to act in good faith during the course of discovery and the

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failure to do so may result in the payment of expenses pursuant to Federal Rule of

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Civil Procedure 37(a)(5) or other appropriate sanctions authorized by the Federal

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Rules of Civil Procedure or the Local Rules.

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8. Pursuant to Federal Rule of Civil Procedure 30(a)(2)(B), Defendant(s) may depose

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Plaintiff and any other witness confined in a prison on the condition that, at least

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fourteen (14) days before such a deposition, Defendant(s) serve all parties with the

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notice required by Federal Rule of Civil Procedure 30(b)(1). Plaintiff’s failure to

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participate in a properly noticed deposition could result in sanctions against

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Plaintiff, including monetary sanctions and/or dismissal of this case. Pursuant to

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Federal Rule of Civil Procedure 30(b)(4), the parties may take any deposition

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under this section by video conference without a further motion or order of the

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Court. Due to security concerns and institutional considerations not applicable to

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Defendant(s), Plaintiff must seek leave from the Court to depose incarcerated

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witnesses pursuant to Federal Rule of Civil Procedure 30(a)(2). Nothing herein

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forecloses a party from bringing a motion for protective order pursuant to Federal

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Rule of Civil Procedure 26(c)(1) if necessary.

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9. The deadline for filing motions to compel further discovery responses is June 29,

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2017. “A motion to compel must be accompanied by ‘a certification that the

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movant has in good faith conferred or attempted to confer with the party not

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making the disclosure in an effort to secure the disclosure without court action.’

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Fed. R. Civ. P. 37(a)(1). A discovery motion that does not comply with applicable

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rules may be stricken and may result in imposition of sanctions.” (ECF No. 3, pgs.

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4-5). The deadline for filing a response to any motion(s) to compel that are filed is

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July 7, 2017.

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IT IS SO ORDERED.
Dated:

May 4, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

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