LeFay et al v. LeFay et al
Filing
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Order Modifying Scheduling Order to Allow Late Disclosure of Experts and Order Denying Motion to Compel, signed by Magistrate Judge Michael J. Seng on 11/18/2014. (Yu, L)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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SHARRON LEFAY, et al.,
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Plaintiffs, ORDER MODIFYING SCHEDULING ORDER
TO ALLOW LATE DISCLOSURE OF
v.
EXPERTS AND ORDER DENYING MOTION
TO COMPEL
WILLIAM CHARLES LEFAY, et al.,
(ECF Nos. 38-40)
Defendants.
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1:13-cv-01362 AWI MJS HC
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I.
INTRODUCTION
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This is a 42 U.S.C. § 1983 civil rights action, with multiple supplemental state law
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claims, arising out of Defendants’ actions in seeking and obtaining a medical
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commitment of Sharron LeFay against her will under California Welfare and Institutions
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Code § 5150. (See generally, 1st Am. Compl., ECF No. 17.) Plaintiffs Sharron LeFay
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and her sons, Jeff Wall and Scott Wall, seek monetary damages from Sharron LeFay’s
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estranged husband, Defendant William LeFay, and from the City of Fresno and various
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named Fresno police officers who were involved in investigating matters giving rise to
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the commitment and the commitment itself. (Id.) Sharron LeFay also seeks equitable
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relief to, in effect, expunge the record of her commitment. (Id. at 11-12.)
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This action was initiated in this Court on August 24, 2013. (Compl., ECF No. 1.) A
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First Amended Complaint was filed February 22, 2014. (ECF No. 17.) All parties have
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been served and appeared. Plaintiff’s Sharron LeFay and her two sons are represented
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by attorney Kevin Little. Defendant William Le Fay is represented by attorney J. David
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Petrie. Defendant City of Fresno and Defendant police officers are represented by
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attorneys Erica Camarena and Tamara Bogosian.
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A Scheduling Conference was held on December 13, 2013, and on December
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16, 2013, a Scheduling Order was issued directing the parties to disclose expert
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witnesses on or before July 18, 2014, with supplementation, if any, of the disclosures to
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be made on or before August 18, 2014. (Sched. Order, ECF No. 15.) The parties were
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ordered to complete all discovery by September 19, 2014. (Id.)
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Upon stipulation of the parties, the Court extended the expert designation date to
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August 18, 2014, and the supplemental designation deadline to September 1, 2014.
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(Order, ECF No. 30.) A pretrial conference remains scheduled for January 7, 2015, and
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a nine day jury trial is set to begin February 17, 2014. (Sched. Order.)
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Reportedly, Plaintiffs fully complied with the expert disclosure requirements.
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Defendants did not. They timely identified their expert witnesses in accordance with the
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Court’s Order, but they did not provide reports of those experts as required by Fed. R.
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Civ. P. 26(a)(2).1
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Specifically, Plaintiffs’ counsel identified Darrel York as a police practices expert
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and served Mr. York’s Curriculum Vitae and written report on Defendants’ counsel on
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August 18, 2014. Counsel for Defendant City of Fresno timely designated Joe Callanan
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as a police practices expert and Dwight Sievert, M.D., as a psychiatric expert. However
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service of the reports of these two experts was not made until August 29, 2014, and
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September 17, 2014, respectively. Defendant William LeFay timely designated a
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psychiatrist, Howard Terrell, M.D., but to date has not submitted a report from Dr. Terrell.
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Plaintiffs objected to Defendants’ failure to fully comply with Rule 26(a)(2).
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Defendants then requested, and on September 8, 2014, the Court held, a Telephonic
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All further references to "Rule" shall refer to the Federal Rules of Civil Procedure, unless
otherwise designated.
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Discovery Dispute Conference in which all parties discussed and debated the reasons
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for and effect of Defendants failure to provide expert reports. (See ECF No. 36.) Plaintiffs
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sought relief. The matter was not resolved in the informal conference. Instead, the Court
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authorized the filing of appropriate motions for relief. (Id.) On September 19, 2014,
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Defendants filed three separate motions. Defendants, the City of Fresno and police
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officers Gleim, Gomez, Vandeursen, and Panabaker (collectively, the "City"), and
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Defendant William LeFay separately moved for an order modifying the Scheduling Order
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to allow additional time for expert disclosure and discovery of Defendant’s experts. (Mot.,
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ECF No. 38, 40.) Plaintiffs' opposition to such motions was filed October 9, 2014. (Opp'n,
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ECF No. 45.) Defendants filed replies to the opposition on October 17, 2014. (ECF Nos.
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46-47.) The matter was argued October 24, 2014. It is now ready for resolution.
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In addition to the motions to amend the scheduling order, the City filed a motion to
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compel Plaintiffs' discovery responses, but noted that if the dispute was not resolved, it
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would provide supporting briefing before the October 24, 2014 hearing date. (ECF No.
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39.) Defendant City did not provide further briefing or raise issues regarding Plaintiffs'
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discovery responses at the hearing. As the matter was not properly raised and argued
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before the Court, the Court is not able to address the issues raised in the motion. The
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Motion to Compel is hereby DENIED without prejudice.
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II.
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THE PARTIES' FACTUAL CONTENTIONS
The essential elements of the parties’ primary factual claims in support of and
opposition to the instant motions may be summarized as follows:
The City’s Factual Claims
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A.
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Defendants attribute their failure to fully disclose experts by the designated
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deadline to delays by Plaintiffs.
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Specifically the City argues it was not in a position to obtain and produce Dr.
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Sievert’s report until it had secured all of Sharron LeFay’s medical records and then
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deposed her and forwarded the results to Dr. Sievert for his review. (Memo. P&A at 7-8,
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ECF No. 38-2) It points out that the mental health facilities where Ms. LeFay was seen in
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connection with the subject of the emergency psychiatric detention hold under Cal. Welf.
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& Inst. Code § 5150 would not produce her records without a signature from Ms. LeFay
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on the facility's own release form. (Id.) That release was not signed and provided until
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March 14, 2014, and not accepted by the medical facility (and the records not provided)
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until August, 2014. (Id. at 4.)
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Counsel for the City notes she expressed concern about the foregoing delays in a
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July 9, 2014, telephonic discovery dispute conference with the Court and, based
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thereon, secured an extension of the expert disclosure deadline from July 18, 2014, to
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August 18, 2014. (Memo. P&A at 4.) Since she made it clear that the City sought the
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extension to ensure it would have relevant records and have deposed knowledgeable
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witnesses before the expert designation deadline, it was necessarily understood that
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securing the records and taking the depositions would have to predate the expert
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designation. Because the formal extended deadline approached and passed without that
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discovery having been completed, she “understood” the designation deadline would not
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be strictly construed, at least insofar as providing written reports from the experts.
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The City then attributes continuing delays in deposing Ms. LeFay to Plaintiffs'
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counsel’s scheduling unavailability. The City notes Plaintiffs' counsel was available only
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one day in July and one day in August prior to the designation deadline, and the
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deposition was not begun until September 4, 2014. (Camarena Decl. at ¶ 4, ECF No. 38-
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1.)
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Further, the City blames its failure to produce Mr. Callanan’s report on delay in
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securing records from the Sacramento sheriff’s office relating to Plaintiffs Jeff and Scott
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Wall. The Walls are both Sacramento sheriff office employees who allegedly: were
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critical of the actions of the Fresno police during the dispute between Sharron Lefay,
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their mother, and William Lefay, their stepfather; used their professional positions to try
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to influence the actions of the Fresno police and others in the case; and, had their jobs
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and reputations negatively impacted by retaliatory actions taken by Fresno police. The
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City sought discovery of the Walls’ internal affairs flies to investigate these issues before
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taking their depositions. The City also wanted its police practices expert to review them
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and the depositions in order to evaluate the propriety of the Wall’s actions and their
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criticism of Fresno police actions.
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The Walls were not deposed until after the August 18, 2014, extended expert
designation deadline.
William LeFay’s Factual Claims
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B.
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Counsel for William LeFay submits an exceedingly detailed chronology of his
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attempts to conduct discovery in this case. The chronology focuses on counsel’s
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January 13, 2014, subpoenas of Ms. LeFay’s medical records and failure to receive
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complete responses to them until August 2014.
(ECF No. 40-1 at 2-13.) Defense
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counsel attributes the delay to alleged foot-dragging by Plaintiffs' counsel and Plaintiffs'
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objection to producing, and interference with the production of, medical records to Ms.
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LeFay. Similar problems reportedly were experienced in setting and taking the
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depositions of each of the Plaintiffs.
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In short, counsel for Mr. LeFay argues that he needed all of Ms. LeFays’ medical
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records, and those relating to the examination of her at the time of the psychiatric hold in
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particular, for his expert, Dr. Terrell, to consider in forming and reporting his opinions.
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The record production was not complete until August 12, 2014, i.e., less than a week
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before the designation deadline.
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Dr. Terrell also needed to consider the deposition testimony of Ms. LeFay. Her
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deposition was not begun until September 4, 2014, and as of the date of briefing this
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motion, had not been concluded
Plaintiffs’ Responses
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C.
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Plaintiffs do not really dispute that there have been obstacles and some delays in
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this case, which they at least impliedly attribute to the unique interrelationships of the
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parties (and the fact Sharron and William LeFay are now embroiled in a contested
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marital dissolution and property division action in state court).
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counsel argues:
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However, Plaintiffs'
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that Defendants themselves delayed instituting discovery relative to these
issues until June 2014 and delayed requesting supplemental discovery responses;
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that the discovery obstacles which generated the delays of which
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Defendants complain predated the discovery extension which was given because of,
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and to compensate for, those delays;
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that Defendants have had possession of the mental health records and
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sworn statement of Ms. LeFay necessary to inform their medical experts since before the
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case began;
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that Defendants did not seek to take Ms. LeFay’s deposition (which they
now claim was essential to their expert) until after the designation deadline; and
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that the Walls had stipulated that there is nothing in their Internal Affairs
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files relating to this case and that they will not offer expert testimony, so there is no need
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for defense experts to rebut their testimony.
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D.
Defendants' Reply:
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1)
Defendants did not delay, but instead spent the early months of this very
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complex case investigating it in preparation for taking depositions;
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The long history of discovery disputes pushed back the discovery
necessary for the expert designations and the designations themselves;
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Though a City police investigator did obtain many, but not necessarily all,
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of Ms. LeFay’s medical records informally and with her consent before the litigation was
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filed, her counsel’s withdrawal of that consent meant that the City could not share that
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material with its experts or others without risk of violating Ms. LeFay’s health information
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privacy rights under HIPAA, and so it did not do so. Counsel for William LeFay confirms
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that he did not in fact have access to the crucial medical records until a few short days
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before the expert designation deadline. Further, Ms. LeFay’s early voluntary statement
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was wholly uninformative and unproductive given her distressed state of mind at the time
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it was given; and
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It was clear Defendants could not properly, and would not, take Ms.
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LeFay’s deposition until all relevant medical records were produced and she was made
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available for deposition.
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III.
APPLICABLE LAW
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This Court’s December 16, 2013, Scheduling Order directed the parties to file
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written designations of experts in accordance with Rule 26(a)(2)(A) and (B), to include all
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information required under those rules, and to do so on or before July 18, 2014. (ECF
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No. 15.) The deadline later was extended to August 18, 2014. (ECF No. 30.) The parties
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were warned that failure to comply with that direction and the applicable deadline could
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result in exclusion of their expert opinion evidence. (ECF No. 15 at 2.)
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As is conceded and described above, the Defendants did not fully comply with the
terms of the Scheduling Order and Federal Rule.
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Rule 37(c)(1) provides, in effect, that where a party fails to comply with the
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witness disclosure requirements of Rule 26, he or she may not use the witness to supply
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evidence at trial, hearing or motion unless the failure to comply “was substantially
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justified or is harmless”. See also Yeti by Molly v. Deckers Outdoor Corp., 259 F.3d.
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1101, 1106 (9th Cir. 2001). The burden is on the party who failed to comply to prove
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substantial justification or harmlessness. Id. at 1107.
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"Among the factors that may properly guide a district court in determining whether
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a violation of a discovery deadline is justified or harmless are: (1) prejudice or surprise to
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the party against whom the evidence is offered; (2) the ability of that party to cure the
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prejudice; (3) the likelihood of disruption of the trial; and (4) bad faith or willfulness
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involved in not timely disclosing the evidence." Lanard Toys, Ltd. v. Novelty, Inc., 375
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Fed. App'x 705, 713 (9th Cir. 2010) (citing David v. Caterpillar, Inc., 324 F.3d 851, 857
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(7th Cir. 2003)).
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In making this analysis and determination, the Court is to consider: 1) the public’s
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interest in expeditious resolution of litigation; 2) the public policy favoring disposition of
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cases on their merits; 3) the Court’s need to manage its docket; 4) the risk of prejudice to
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an opposing party; and, 5) the availability of sanctions less drastic than witness or
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evidence preclusion. See Wendt v. Host Int'l, Inc., 125 F.3d 806, 814 (9th Cir. 1997)
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(citing Wanderer v. Johnston, 910 F.2d 652, 656 (9th Cir. 1990)).
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Defendant William LeFay directs the parties’ and the Court’s attention to Rule
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16(b)’s provision for modification of a scheduling order for good cause and with the
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consent of the Court. The Court reads Rule 16 and the related authorities cited by Mr.
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LeFay to be directed more appropriately toward a request for modification of a
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scheduling deadline before the deadline passes. Rule 37’s specific provisions for relief
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from a failure to disclose are more appropriately considered here. See Fed. R. Civ. P.
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37(c).
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Plaintiffs' counsel refers us to Hogan v. Robinson, 2007 U.S. Dist. LEXIS 39555
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(E.D. Cal. 2007) (affirmed on reconsideration by Hogan v. Robinson, 2007 U.S. Dist.
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LEXIS 39555 (E.D. Cal. 2007) (O’Neill, J., presiding)), in which the Honorable Lawrence
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J. O’Neill, U.S. District Judge of this Court, affirmed the decision to preclude evidence
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from a not-properly disclosed expert on the ground that prejudice to the opposing parties
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was unavoidable and undeniable where a late disclosed expert would have had the
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benefit of reviewing the opposing experts’ already-disclosed opinions and shaping expert
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opinions to respond. Plaintiffs note, correctly, that the Hogan decision should be given
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considerable weight by this court since it was issued by a fellow judge from this very
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district and on the same issue. Plaintiffs cite a long line of supporting authority to this
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end. (See, ECF No. 45 at 5.)
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IV.
ANALYSIS
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The Court, having carefully considered the relevant pleadings and argument of
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counsel, finds on the basis thereof that to the extent any prejudice might otherwise have
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resulted from Defendants' failure to timely disclose experts, it may be remedied by the
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provisions of this Order so as to render the failure harmless. Accordingly, to the extent
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and in the manner provided here, the Court grants Defendants’ motions to amend the
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Scheduling Order.
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Addressing the factors set forth in Lanard Toys and Wendt, above:
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The Court finds that inasmuch as the pretrial conference is still some two months
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away and trial more than three months away, granting a modification of the expert
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disclosure deadline will not disrupt the Court’s docket and should not delay or disrupt
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trial.
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The law always favors disposition of cases on their merits. See, e.g., Dreith v. Nu
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Image, Inc., 648 F.3d 779, 788 (9th Cir. 2011). The Court wants to see both sides
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present to the finder of fact all relevant and material evidence not foreclosed by other
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rules; it looks with disfavor on sanctions which might prevent all the facts and authorized
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opinions from being presented. This is particularly so where other remedies are available
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to compensate for a failure to follow rules and schedules.
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Significantly, nothing presented to the Court suggests a willful failure to comply
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with the rules or bad faith on the part of either of the Defendants in making less than the
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required full disclosure by the deadline. Indeed it appears the City Defendants undertook
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to secure and exchange the required information as soon as they came to conclude that
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Plaintiffs had expected and would insist upon timely exchange. (It is concerning that
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Defendant LeFay did not do likewise.)
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There have, indeed, been innocent, good faith delays on both side of the table in
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this case, to include Plaintiffs' delayed response to overlooked written discovery, delays
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in consenting to disclosure of medical records, and Plaintiffs' medical facility’s insistence
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upon a particular form of release and delay in releasing the records. To the undersigned
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it is significant that notwithstanding the delays and frustrations these opposing parties
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continued to work together and, when necessary, with the Court, to resolve disputes
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arising therefrom without formal law and motion activity. It seems to the Court that there
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was, as there should be, particularly in a relatively small, local legal community such as
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this, a good deal of give and take among the parties. And that, to the undersigned, is
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significant in that it could lead a reasonable litigant under such circumstances
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reasonably to believe, like the City’s attorney claims, that the strict deadlines and rules
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would not be literally enforced where there was substantive compliance with them and
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obvious prerequisites to compliance had not been met. Certainly, City's counsel should
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have undertaken to confirm her belief in that regard. Certainly, the Court would not
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enforce such an unconfirmed “understanding” against an opposing party. However,
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these circumstances support the Court’s conclusion that there was no bad faith or
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gamesmanship on the part of the Defendants' in failing to exchange their experts written
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reports.
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So the Court then turns to the question of harmlessness, or its corollary,
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prejudice, and, if there is prejudice, to whether it can be relieved or dealt with via less
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drastic sanctions than evidence preclusion sanctions.
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The Court agrees with the holding and principal espoused in Hogan to the effect
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that where ones party’s expert has the benefit of reviewing an opposing party’s expert
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report before having to prepare his or her own, there necessarily is prejudice — the latter
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expert is not going to be able to expunge from his mind that which he learned from the
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other, and it would be impossible to say that what he learned did not influence his
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opinions.
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But here, while both sets of Defendants have designated medical experts,
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Plaintiffs have not, and so Defendants' medical experts will not have the benefit of
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reviewing opinions from Plaintiffs' experts.
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Defendant City has indeed named a police practices expert and his report was not
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provided to Plaintiffs until after Plaintiffs' expert had published and provided a copy of his
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report to Defendant. However, City and its expert have declared under penalty of perjury
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that the report as belatedly exchanged was drafted without City’s expert having
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considered the Plaintiffs' police practices expert’s report. There is nothing before the
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Court to cause it to question the validity of this representation. Further, the City proposes
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that if any sanction is to be imposed, it will be sufficient to limit its expert, Joe Callanan,
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to the opinions reflected in that earlier report and not otherwise respond to or comment
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on the opinions expressed by Mr. York. The Court is satisfied that such procedures will
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protect Plaintiffs from the prejudice the Hogan court recognizes would otherwise
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necessary ensue from the late disclosure.
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Extending the designation date so as to allow a party to make a delayed
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exchange will necessarily inconvenience a party who proceeded on the reasonable
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assumption that all parties would meet specified deadlines. It may be particularly so
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where a party has scheduled other post-deadline litigation activities in the subject case
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and other cases, especially where, as here, major holidays intervene. However,
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Inconvenience falls shy of prejudice. Schedule juggling, regrettably, is all too common in
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the litigation arena. Plaintiffs' attorney is recognized as a seasoned and accomplished
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litigator. His opponents, or if necessary the Court, allowing him reasonable leeway in
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scheduling and conducting discovery of the late-designated experts should overcome
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any prejudice to him or his client. If events prove otherwise, Plaintiffs may seek
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appropriate relief from this Court.
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Accordingly, the Court concludes that under all the facts of this case, Defendants’
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failures to timely designate experts in accordance with the provisions of Rule 26(A) was
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not and will not be prejudicial to Plaintiffs if: (1) Defendants make such experts available
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for Plaintiffs' discovery at times reasonably available to Plaintiffs' counsel; and, City
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Defendant’s expert on police practices, Joseph Callanan, opinions and testimony be
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limited to that reflected in his written report provided to Plaintiffs' counsel on or about
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August 29, 2014, and he not respond otherwise to opinions or other statements made by
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Plaintiffs' expert York in his written report exchanged on or about August 18, 2014.
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As noted, the Court is concerned with the fact that Defendant LeFay, unlike
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Defendant City, did not produce a written report immediately upon learning of Plaintiffs'
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intent to rely on the exchange deadline. The Court anticipates Defendant LeFay's
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argument that it could not do so with having completed the deposition of Plaintiff. That
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argument, if made, would be met with skepticism. Nevertheless, for the reasons set forth
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above, including the fact Plaintiffs apparently have not designated a retained medical
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expert, the Court is unable to see how Plaintiffs will be prejudiced if the scheduling order
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is amended to allow a later disclosure deadline. Plaintiffs retain the right to move to
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demonstrate actual prejudice and seek relief therefrom.
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V.
ORDER
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The Court hereby ORDERS:
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1) that the Scheduling Order is amended so that Defendant City's disclosure of
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experts Sievert and Callanan and their reports by on or about September 19, 2014, shall
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be deemed timely;
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2) that Defendant LeFay’s disclosure of expert Terrell shall be deemed timely if
his full report is provided within 10 days of the date of this Order;
3) that Defendants shall cooperate fully with Plaintiffs' reasonable proposals for
scheduling depositions of these experts;
4) that Defendants shall pay Plaintiffs their reasonable attorney fees incurred in
bringing and arguing these motions; and
5) that Defendant City's Motion to Compel is DENIED without prejudice.
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IT IS SO ORDERED.
Dated:
November 18, 2014
/s/
Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
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