Lopez, et al. v. City of Bakersfield, et al.

Filing 36

ORDER After Informal Telephonic Conference re Missing Witnesses, signed by Magistrate Judge Jennifer L. Thurston on 2/20/2015. (Hall, S)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

BERNIE LOPEZ, et al.,

12

Plaintiffs,

13
14
15

v.
CITY OF BAKERSFIELD, et al.,
Defendants.

)
)
)
)
)
)
)
)

Case No.: 1:13-cv-01725 LJO JLT
ORDER AFTER INFORMAL TELEPHONIC
CONFERENCE RE MISSING WITNESSES
(Doc. 34)

16
17

At the request of counsel, on November 6, 2014, the Court held an informal telephonic

18

conference to address several discovery issues. In particular, counsel advised the Court that a

19

number of witnesses identified on the parties’ Rule 26 disclosures had not been located. At the

20

conference, counsel agreed that they would make diligent efforts to locate the witnesses and would

21

provide updated contact information to their opponent immediately upon discovery. Thus, the

22

Court issued the order, dated November 6, 2014, which read:

23
24
25
26
27
28

No later than December 8, 2014, counsel SHALL file a joint statement setting
forth their efforts to locate the 10 witnesses whose whereabouts are currently
unknown. Likewise, Plaintiffs’ counsel SHALL report on the efforts to locate the
plaintiffs. The Court anticipates that in advance of the preparation of the joint
report, defense counsel will have completed a “diligent search” [footnote] for the
witnesses and plaintiffs' counsel will have completed a “diligent search” for the
witnesses and for the plaintiffs. In the event the efforts to locate the plaintiffs are
unsuccessful, counsel SHALL report also as to how they intend to proceed.
(Doc. 25 at 1-2, footnote omitted) The Court clarified, “By “diligent search” the Court means that
all reasonable efforts to locate these individuals have been exhausted. In the event that any witness
1

1

is located in this process or at any other time, the parties are reminded of their continuing

2

obligations to supplement their Rule 26 disclosures and are specifically ORDERED to provide

3

location information to opposing counsel as soon as the information is located.” Id. at 2.

4

On December 8, 2014, the parties submitted a joint report in which Defendants set forth the

5

efforts of their process server to locate the missing witnesses. (Doc. 29 at 3-6) Except as to Jose

6

Sanchez, the process server went to the last known addresses and spoke to the current residents or

7

otherwise confirmed that the witnesses no longer lived at the locations. Id. As to Mr. Sanchez, it

8

appeared that he still lived at the address though he could not be found there. Id. at 5, 12.

9

Plaintiffs reported that because the witnesses were transient, their investigator, Manny

10

Lopez, had been unable to locate them though they offered no details explaining his efforts. (Doc.

11

29 at 3)

12

When the parties filed their joint mid-discovery status conference report on January 8,

13

2015, they continued to note that 10 of the witnesses were still missing. (Doc. 32 at 2) However,

14

the parties reiterated their commitment “to make diligent efforts to locate the 10 missing

15

witnesses.” Id.

16

At counsel’s request, on February 20, 2015, the Court held a further informal conference

17

regarding the missing witnesses. At the hearing, Plaintiffs’ counsel reported that they had

18

attempted to locate the witnesses, though the details as to the efforts that had been made and

19

whether these efforts had been directed toward locating all of the missing witnesses, was not

20

known to counsel. However, they stated an objection to having to expend resources to locate the

21

witnesses in that they were “comfortable” with the witness statements their investigator had

22

received early in the process. Exactly how this translates to admissible evidence was not made

23

clear. Indeed, given the transitory nature of the witnesses’ housing arrangements, memorializing

24

their testimony in admissible format would seem to be of great concern to all of the parties because

25

even if they can be located soon, there can be no confidence they will locatable for trial.

26

Defendants noted they had made diligent efforts—as detailed in the joint report filed in

27

December—and had been able to locate another witness. They requested permission to file a

28

motion to compel to exclude the witnesses at trial.
2

1

The Court authorized a motion to compel but also authorized deferral of the issue to be

2

made as a pretrial motion to allow additional time to locate the witnesses. In the event the witness

3

was found prior to that time, the Court indicated it would allow a motion to seek leave to depose

4

the witnesses beyond the discovery deadline.

5

Alternatively, the parties suggested amendments to the case schedule as a possible solution,

6

though the Court declined to consider it at that time, given the insufficiency of the showing of

7

good cause. In any event, based upon the foregoing, the Court ORDERS:

8
9

1.

Counsel may seek amendment to the case schedule but are reminded of their

obligation to set forth facts in the request to demonstrate that good cause exists to makes the

10

changes. If they will rely upon the failure to locate the witnesses as grounds, they SHALL

11

demonstrate why efforts were not made earlier and why they believe renewed efforts will result in

12

locating them. They are strongly discouraged, if at all possible, from seeking to amend the dates

13

related to dispositive motions, the pretrial conference and the trial;

14

2.

Counsel are strongly urged to make consistent, exhaustive efforts to locate the

15

missing witnesses. It is unlikely the Court will be inclined to allow the testimony of witnesses at

16

trial who have been difficult to locate, if efforts to locate them are delayed until just before trial.

17
18
19
20

IT IS SO ORDERED.
Dated:

February 20, 2015

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

21
22
23
24
25
26
27
28
3