Valson v. Kelso et al

Filing 35

SCHEDULING ORDER and ORDER Directing Clerk to Send Plaintiff a Copy of Local Rule 281(b), signed by Magistrate Judge Erica P. Grosjean on 3/7/2018. (Attachments: # 1 Local Rule 281(b))(Hellings, J)

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1 2 IN THE UNITED STATES DISTRICT COURT 3 EASTERN DISTRICT OF CALIFORNIA 4 5 SILUS M. VALSON, 6 Plaintiff, 7 8 v. 10 12 SCHEDULING ORDER AND ORDER DIRECTING CLERK TO SEND PLAINTIFF A COPY OF LOCAL RULE 281(b) Deadline for Non-expert Discovery Requests: May 4, 2018 9 11 Case No. 1:14-cv-01420-DAD-EPG (PC) MATTHEW CATE and MARTIN BITER, Defendants. Telephonic Discovery and Status Conference: October 15, 2018 Time: 1:30 p.m. Courtroom 10 (EPG) Non-expert Discovery Cutoff: November 30, 2018 Rebuttal Expert Disclosure Deadline: December 20, 2018 Expert Discovery Cutoff: January 18, 2019 Dispositive Motion Filing Deadline: 14 November 9, 2018 Expert Disclosure Deadline: 13 February 22, 2019 15 16 17 18 19 20 Telephonic Trial Confirmation Hearing: December 16, 2019 Time: 2:30 p.m. Courtroom 5 (DAD) 21 22 23 Jury Trial: 24 February 25, 2020 Time: 8:30 a.m. Courtroom 5 (DAD) 25 26 This Court conducted a scheduling conference on March 5, 2018. Plaintiff Silus Valson 27 telephonically appeared on his own behalf. Counsel Tyler Heath and Michelle Angus 28 telephonically appeared on behalf of Defendants. Pursuant to Federal Rule of Civil Procedure 1 1 16(b), this Court now sets a schedule for this action. 2 I. DISCOVERY PROCEDURES 3 The parties are now granted leave to serve discovery in addition to that provided as part of 4 initial disclosures. Pursuant to Federal Rules of Civil Procedure 1, 16, and 26-36, discovery shall 5 proceed as follows: 6 1. Discovery requests shall be served by the parties pursuant to Federal Rule of Civil 7 Procedure 5 and Local Rule 135. Discovery requests and responses shall not be filed 8 with the Court unless required by Local Rules 250.2, 250.3, or 250.4 (providing that 9 discovery requests shall not be filed unless or until there is a proceeding in which the 10 document or proof of service is at issue). A party may serve on any other party no 11 more than 15 interrogatories, 15 requests for production of documents, and 10 requests 12 for admission. On motion, these limits may be increased for good cause. 13 2. Responses to written discovery requests shall be due forty-five (45) days after the 14 request is first served. Boilerplate objections are disfavored and may be summarily 15 overruled by the Court. Responses to document requests shall include all documents 16 within a party’s possession, custody or control. Fed. R. Civ. P. 34(a)(1). Documents 17 are deemed within a party’s possession, custody, or control if the party has actual 18 possession, custody, or control thereof, or the legal right to obtain the property on 19 demand.1 20 3. If any party or third party withholds a document on the basis of privilege, that party or 21 third party shall provide a privilege log to the requesting party identifying the date, 22 author, recipients, general subject matter, and basis of the privilege within thirty (30) 23 days after the date that responses are due. The privilege log shall also be filed with 24 the Court. Failure to provide a privilege log within this time shall result in a waiver of 25 the privilege. To the extent the requesting party disputes whether a document is 26 1 27 28 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.”). 2 1 privileged, it can raise that issue to the Court's attention via a motion to compel (see 2 below). If a party or third party withholds a document on the basis of the official 3 information privilege, the requesting party may request that the Court conduct an in 4 camera review of such document so that the Court can balance the moving party's 5 need for the document in the litigation against the reasons that are asserted in 6 defending its confidentiality. In any such request for in camera review, the party 7 requesting review shall identify, with specificity, the document(s) for which review is 8 sought. 9 4. Pursuant to Federal Rule of Civil Procedure 30(a)(2)(B), Defendant(s) may depose 10 Plaintiff and any other witness confined in a prison on the condition that, at least 11 fourteen (14) days before such a deposition, Defendant(s) serve all parties with the 12 notice required by Federal Rule of Civil Procedure 30(b)(1). Plaintiff’s failure to 13 participate in a properly noticed deposition could result in sanctions against Plaintiff, 14 including monetary sanctions and/or dismissal of this case. Pursuant to Federal Rule 15 of Civil Procedure 30(b)(4), the parties may take any deposition under this section by 16 video conference without a further motion or order of the Court. Due to security 17 concerns and institutional considerations not applicable to Defendant(s), Plaintiff must 18 seek leave from the Court to depose incarcerated witnesses pursuant to Federal Rule of 19 Civil Procedure 30(a)(2). Nothing herein forecloses a party from bringing a motion 20 for protective order pursuant to Federal Rule of Civil Procedure 26(c)(1) if necessary. 21 5. With the Court’s permission, Plaintiff may serve third party subpoenas, including on 22 the California Department of Corrections and Rehabilitation and/or the Office of the 23 Inspector General, if Plaintiff seeks documents from entities that are not presently 24 defendants in this case. To issue a subpoena on these entities, or any other third 25 parties, Plaintiff must file a request for the issuance of a subpoena duces tecum with 26 the Court. If the Court approves the request, it may issue Plaintiff a subpoena duces 27 tecum, commanding the production of documents from a non-party, and may 28 command service of the subpoena by the United States Marshals Service. Fed. R. Civ. 3 1 P. 45; 28 U.S.C. 1915(d). However, the Court will consider granting such a request 2 only if the documents sought from the non-party are not equally available to Plaintiff 3 and are not obtainable from Defendant(s) through a Rule 34 request for production of 4 documents. In any request for a subpoena, Plaintiff must: (1) identify with specificity 5 the documents sought and from whom; and (2) make a showing in the request that the 6 records are only obtainable through that third party. The documents requested must 7 also fall within the scope of discovery allowed in this action. See Fed. R. Civ. P. 8 26(b)(1). 9 6. The parties are required to act in good faith during the course of discovery and the 10 failure to do so may result in the payment of expenses pursuant to Federal Rule of 11 Civil Procedure 37(a)(5) or other appropriate sanctions authorized by the Federal 12 Rules of Civil Procedure or the Local Rules. 13 7. A discovery and status conference is set for October 15, 2018, at 1:30 p.m. Parties 14 have leave to appear by phone. To join the conference, each party is directed to call 15 the toll-free number (888) 251−2909 and use Access Code 1024453. Up until four 16 weeks before the conference, the parties may file motions to compel further discovery 17 responses. No later than two weeks before the conference, the responding party may 18 file response(s) to motion(s) to compel. The motion should include a copy of the 19 request(s) and any response to the request(s) at issue. Unless there is a need for 20 discovery prior to the conference, motions to compel will not be considered until the 21 conference. Motions to compel will not be permitted after the conference absent good 22 cause. 23 conference. The parties should be prepared to address all discovery disputes at the 24 8. Plaintiff shall make arrangements with staff at his or her institution of confinement for 25 his or her attendance at the discovery and status conference. Plaintiff’s institution of 26 confinement shall make Plaintiff available for the conference at the date and time 27 indicated above. To the extent possible, prior to the conference defense counsel shall 28 confirm with Plaintiff’s institution of confinement that arrangements have been made 4 for Plaintiff’s attendance. 1 2 II. PAGE LIMITS AND COURTESY COPIES 3 The parties are advised that unless prior leave of the Court is obtained before the filing 4 deadline,2 all moving and opposition briefs or legal memoranda shall not exceed twenty-five (25) 5 pages. Reply briefs by the moving party shall not exceed ten (10) pages. These page limits do 6 not include exhibits. 7 Defendant(s) shall mail or deliver courtesy hard-copies of all motions over 10 pages in 8 length to the court at 2500 Tulare St., Room 1501, Fresno, CA 93721. Courtesy hard-copies 9 shall reflect the CM/ECF document numbers and pagination. 10 III. 11 12 NON-EXPERT DISCOVERY DEADLINE The deadline for serving non-expert discovery requests (interrogatories, requests for admissions, and requests for production) is May 4, 2018. 13 The deadline for the completion of all non-expert discovery is November 9, 2018. All 14 non-expert discovery must be provided by this date, including discovery compelled following the 15 discovery and status conference. 16 IV. EXPERT DISCOVERY DEADLINES 17 The deadline for all parties to serve their expert disclosures is November 30, 2018. 18 Parties have until December 20, 2018, to serve their rebuttal expert disclosures. The deadline for 19 the completion of all expert discovery is January 18, 2019. 20 V. 21 22 DISPOSITIVE MOTIONS DEADLINE The deadline for filing dispositive motions is February 22, 2019. VI. TELEPHONIC TRIAL CONFIRMATION HEARING 23 A Telephonic Trial Confirmation Hearing is set for December 16, 2019, at 2:30 p.m., in 24 Courtroom 5, before District Judge Dale A. Drozd. To participate telephonically, the parties must 25 dial into the conference at 877-402-9757, using access code 6966236, at the time of the hearing. 26 Counsel for Defendant(s) is required to arrange for the participation of Plaintiff in the Telephonic 27 Trial Confirmation Hearing. Because the Court may be hearing other matters using the same 28 2 Parties may seek leave by filing a short motion. 5 1 conference line, please wait to state your appearance until your case has been called and 2 appearances are requested. Keep all background noise to a minimum. 3 In addition to the matters already required to be addressed in the pretrial statement in 4 accordance with Local Rule 281, Plaintiff will be required to make a particularized showing in 5 order to obtain the attendance of witnesses. The procedures and requirements for making such a 6 showing are outlined in detail below. 7 procedures set forth below may result in the preclusion of any or all witnesses named in 8 Plaintiff’s pretrial statement. Plaintiff is advised that failure to comply with the 9 At the trial of this case, Plaintiff must be prepared to introduce evidence to prove each of 10 the alleged facts that support the claims raised in the lawsuit. In general, there are two kinds of 11 trial evidence: (1) exhibits and (2) the testimony of witnesses. It is Plaintiff’s responsibility to 12 produce all of the evidence to prove Plaintiff’s case, whether that evidence is in the form of 13 exhibits or witness testimony. If Plaintiff wants to call witnesses to testify, Plaintiff must follow 14 certain procedures to ensure that the witnesses will be at the trial and available to testify. 15 1. Procedures for Obtaining Attendance of Incarcerated Witnesses Who Agree to 16 Testify Voluntarily - An incarcerated witness who agrees voluntarily to attend trial to give 17 testimony cannot come to court unless this Court orders the warden or other custodian to permit 18 the witness to be transported to court. This Court will not issue such an order unless it is satisfied 19 that: (a) the prospective witness is willing to attend; and (b) the prospective witness has actual 20 knowledge of relevant facts. 21 A party intending to introduce the testimony of incarcerated witnesses who have agreed to 22 voluntarily attend the trial must serve and file a written motion for a court order requiring that 23 such witnesses be brought to court at the time of trial. The motion must: (1) state the name, 24 address, and prison identification number of each such witness; and (2) be accompanied by 25 declarations showing that each witness is willing to testify and that each witness has actual 26 knowledge of relevant facts. 27 Incarcerated Witnesses.” 28 The motion should be entitled “Motion for Attendance of The willingness of the prospective witness can be shown in one of two ways: (1) the party 6 1 him or herself can swear by declaration under penalty of perjury that the prospective witness has 2 informed the party that he or she is willing to testify voluntarily without being subpoenaed, in 3 which declaration the party must state when and where the prospective witness informed the party 4 of this willingness; or (2) the party can serve and file a declaration, signed under penalty of 5 perjury by the prospective witness, in which the witness states that he or she is willing to testify 6 without being subpoenaed. 7 The prospective witness’s actual knowledge of relevant facts can be shown in one of two 8 ways: (1) if the party has actual firsthand knowledge that the prospective witness was an 9 eyewitness or an ear-witness to the relevant facts (e.g., if an incident occurred in Plaintiff’s cell 10 and, at the time, Plaintiff saw that a cellmate was present and observed the incident, Plaintiff may 11 swear to the cellmate’s ability to testify), the party can swear by declaration under penalty of 12 perjury that the prospective witness has actual knowledge; or (2) the party can serve and file a 13 declaration signed under penalty of perjury by the prospective witness in which the witness 14 describes the relevant facts to which the prospective witness was an eye- or ear witness. Whether 15 the declaration is made by the party or by the prospective witness, it must be specific about the 16 incident, when and where it occurred, who was present, and how the prospective witness 17 happened to be in a position to see or to hear what occurred at the time it occurred. 18 2. Procedures for Obtaining Attendance of Incarcerated Witnesses Who Refuse to 19 Testify Voluntarily - If a party seeks to obtain the attendance of incarcerated witnesses who 20 refuse to testify voluntarily, the party should serve and file a written motion for a court order 21 requiring that such witnesses be brought to court at the time of trial. Such motion should be in 22 the form described above. In addition, the party must indicate in the motion that the incarcerated 23 witnesses are not willing to testify voluntarily. 24 The Court will review and rule on the motion(s) for attendance of incarcerated witnesses, 25 specifying which prospective witnesses must be brought to court. Subsequently, the Court will 26 issue the writs necessary to cause the witnesses’ custodian(s) to bring the witnesses to court. 27 28 Motion(s) for the attendance of incarcerated witnesses, if any, must be filed on or before October 16, 2019. Oppositions, if any, must be filed on or before November 15, 2019. 7 1 3. Procedures for Obtaining Attendance of Unincarcerated Witnesses Who Agree to 2 Testify Voluntarily - It is the responsibility of the party who has secured an unincarcerated 3 witness’s voluntary attendance to notify the witness of the time and date of trial. No action need 4 be sought or obtained from the Court. 5 4. Procedures for Obtaining Attendance of Unincarcerated Witnesses Who Refuse to 6 Testify Voluntarily - If a prospective witness is not incarcerated, and he or she refuses to testify 7 voluntarily, the witness must be served with a subpoena. Fed. R. Civ. P. 45. In addition, the 8 party seeking the witness’s presence must tender an appropriate sum of money for the witness. 9 Id. In the case of an unincarcerated witness, the appropriate sum of money is the daily witness 10 fee of $40.00 plus the witness’s travel expenses. 28 U.S.C. § 1821. 11 If Plaintiff wishes to obtain the attendance of one or more unincarcerated witnesses who 12 refuse to testify voluntarily, Plaintiff must first notify the Court in writing of the name and 13 location of each unincarcerated witness. The Court will calculate the travel expense for each 14 unincarcerated witness and notify Plaintiff of the amount(s). Plaintiff must then, for each witness, 15 submit a money order made payable to the witness for the full amount of the witness’s travel 16 expenses plus the daily witness fee of $40.00. The subpoena will not be served upon the 17 unincarcerated witness by the United States Marshals Service unless the money order is tendered 18 to the Court. Because no statute authorizes the use of public funds for these expenses in civil 19 cases, the tendering of witness fees and travel expenses is required even if Plaintiff was granted 20 leave to proceed in forma pauperis. 21 If Plaintiff wishes to have the Marshals Service serve any unincarcerated witnesses who 22 refuse to testify voluntarily, Plaintiff must submit the money orders to the Court no later than 23 November 15, 2019. In order to ensure timely submission of the money orders, Plaintiff must 24 notify the Court of the names and locations of his witnesses, in compliance with step 4 above, no 25 later than October 16, 2019. 26 Plaintiff shall file and serve a pretrial statement as described in this order on or before 27 October 16, 2019. Defendant(s) shall file and serve a pretrial statement as described in this order 28 on or before November 15, 2019. 8 1 The parties are advised that failure to file pretrial statements as required by this order may 2 result in the imposition of appropriate sanctions, which may include dismissal of the action or 3 entry of default. 4 5 6 The Clerk of Court is DIRECTED to send Plaintiff a copy of Local Rule 281(b). VII. TRIAL DATE A trial is set for February 25, 2020, at 8:30 a.m., in Courtroom 5, before 7 District Judge Dale A. Drozd. 8 VIII. EFFECT OF THIS ORDER 9 This order represents the Court and the parties’ best estimated schedule to complete this 10 case. Any party unable to comply with the dates outlined in this order shall immediately file an 11 appropriate motion or stipulation identifying the requested modification(s). 12 The dates set in this order are considered to be firm and will not be modified absent a 13 showing of good cause, even if a stipulation to modify is filed. Due to the impacted nature of the 14 civil case docket, this Court disfavors requests to modify established dates. 15 Failure to comply with this order may result in the imposition of sanctions. 16 17 18 IT IS SO ORDERED. Dated: March 7, 2018 /s/ UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 9

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