David A. Estrada v. Macias et al

Filing 28

SCHEDULING ORDER, and ORDER DIRECTING Clerk to Send Plaintiff a Copy of Local Rule 281(b) and to Serve a Copy of This Order on the Litigation Coordinator at Pelican Bay State Prison, signed by Magistrate Judge Erica P. Grosjean on 8/29/17. Telep honic Discovery Status Conference: January 29, 2018, Time: 2:30 p.m. Courtroom 10 (EPG); Non-expert Discovery Cut-off: February 23, 2018; Expert Disclosure Deadline: March 23, 2018; Rebuttal Expert Disclosure Deadline: April 20, 2018; Expert Discover y Cut-off: May 11, 2018; Dispositive Motion Filing Deadline: June 15, 2018; Telephonic Trial Confirmation Hearing: April 18, 2019 Time: 8:15 a.m. Courtroom 4 (LJO); Jury Trial: June 18, 2019 Time: 8:30 a.m. Courtroom 4 (LJO). (Copy of this order sent via email to litigation coordinator at PBSP). (Attachment: # 1 Local Rule 281) (Marrujo, C).

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IN THE UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DAVID A. ESTRADA,

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Plaintiff,

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v.

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OLGA BEREGOVSKAYA, et al.,
Defendants.

CASE NO. 1:15-cv-01335-LJO-EPG (PC)
SCHEDULING ORDER, AND ORDER
DIRECTING CLERK TO SEND PLAINTIFF
A COPY OF LOCAL RULE 281(b) AND TO
SERVE A COPY OF THIS ORDER ON THE
LITIGATION COORDINATOR AT PELICAN
BAY STATE PRISON
Telephonic Discovery
Status Conference:
January 29, 2018
Time: 2:30 p.m.
Courtroom 10 (EPG)
Non-expert
Discovery Cut-off:

February 23, 2018

Expert Disclosure
Deadline:

March 23, 2018

Rebuttal Expert
Disclosure Deadline:

April 20, 2018

Expert Discovery
Cut-off:

May 11, 2018

Dispositive Motion
Filing Deadline:

June 15, 2018

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Telephonic Trial
Confirmation Hearing: April 18, 2019
Time: 8:15 a.m.
Courtroom 4 (LJO)

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Jury Trial:

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June 18, 2019
Time: 8:30 a.m.
Courtroom 4 (LJO)

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This Court conducted a scheduling conference on August 22, 2017. Plaintiff David

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Estrada telephonically appeared on his own behalf.

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appeared on behalf of Defendants. Pursuant to Federal Rule of Civil Procedure 16(b), this Court

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now sets a schedule for this action.
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Counsel David Carrasco telephonically

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I.

DISCOVERY PROCEDURES

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The parties are now granted leave to serve discovery in addition to that provided as part of

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initial disclosures. Pursuant to Federal Rules of Civil Procedure 1, 16, and 26-36, discovery shall

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proceed as follows:

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1. 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 filed

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with the Court unless required by Local Rules 250.2, 250.3, or 250.4 (providing that

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discovery requests shall not be filed unless or until there is a proceeding in which the

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document or proof of service is at issue). A party may serve on any other party no

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more than 15 interrogatories, 15 requests for production of documents, and 10 requests

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for admission. On motion, these limits may be increased for good cause.

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2. Responses to written discovery requests shall be due forty-five (45) days after the

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request is first served. Boilerplate objections are disfavored and may be summarily

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overruled by the Court. Responses to document requests shall include all documents

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

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are 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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3. If any party or third party withholds a document on the basis of privilege, that party or

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third party shall provide a privilege log to the requesting party identifying the date,

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author, recipients, general subject matter, and basis of the privilege within thirty (30)

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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 party

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disputes whether a document is privileged, it can raise that issue to the Court's

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attention via a motion to compel (see below). If a party or third party withholds a

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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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document on the basis of the official information privilege, the requesting party may

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

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can 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 in

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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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4. 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 Plaintiff,

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including monetary sanctions and/or dismissal of this case. Pursuant to Federal Rule

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of Civil Procedure 30(b)(4), the parties may take any deposition under this section by

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video conference without a further motion or order of the Court. Due to security

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concerns and institutional considerations not applicable to Defendant(s), Plaintiff must

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seek leave from the Court to depose incarcerated witnesses pursuant to Federal Rule of

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Civil Procedure 30(a)(2). Nothing herein forecloses a party from bringing a motion

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for protective order pursuant to Federal Rule of Civil Procedure 26(c)(1) if necessary.

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5. With the Court’s permission, Plaintiff may serve third party subpoenas, including on

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the California Department of Corrections and Rehabilitation and/or the Office of the

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Inspector General, if Plaintiff seeks documents from entities that are not presently

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defendants in this case. To issue a subpoena on these entities, or any other third

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parties, Plaintiff must file a request for the issuance of a subpoena duces tecum with

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the Court. If the Court approves the request, it may issue Plaintiff a subpoena duces

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tecum, commanding the production of documents from a non-party, and may

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command service of the subpoena by the United States Marshal Service. Fed. R. Civ.

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P. 45; 28 U.S.C. 1915(d). However, the Court will consider granting such a request

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only if the documents sought from the non-party are not equally available to Plaintiff
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and are not obtainable from Defendant(s) through a request for production of

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documents. Fed. R. Civ. P. 34. In any request for a subpoena, Plaintiff must: (1)

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identify with specificity the documents sought and from whom; and (2) make a

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showing in the request that the records are only obtainable through that third party.

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The documents requested must also fall within the scope of discovery allowed in this

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action. See Fed. R. Civ. P. 26(b)(1).

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6. 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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7. A discovery conference has been set for January 29, 2018, at 2:30 p.m. Parties have

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leave to appear by phone. To join the conference, each party is directed to call the

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toll-free number (888) 251−2909 and use Access Code 1024453. Up until four weeks

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before the discovery conference, the parties may file motions to compel further

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discovery responses. No later than two weeks before the discovery conference, the

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responding party may file response(s) to motion(s) to compel. The motion should

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include a copy of the request(s) and any response to the request(s) at issue. Unless

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there is a need for discovery prior to the discovery conference, motions to compel will

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not be considered until the discovery conference. Motions to compel will not be

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permitted after the discovery conference absent good cause. The parties should be

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prepared to address all discovery disputes at the discovery conference.

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8. Plaintiff shall make arrangements with staff at his or her institution of confinement for

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his or her attendance at the discovery conference.

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confinement shall make Plaintiff available for the conference at the date and time

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indicated above. To the extent possible, prior to the conference defense counsel shall

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confirm with Plaintiff’s institution of confinement that arrangements have been made

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for Plaintiff’s attendance. The Clerk of Court shall send a copy of this order to the

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litigation coordinator at Pelican Bay State Prison.
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Plaintiff’s institution of

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II.

PAGE LIMITS AND COURTESY COPIES

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The parties are advised that unless prior leave of the Court is obtained before the filing

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deadline,2 all moving and opposition briefs or legal memoranda filed in civil cases before

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Magistrate Judge Erica P. Grosjean shall not exceed twenty-five (25) pages. Reply briefs by the

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moving party shall not exceed ten (10) pages. These page limits do not include exhibits.

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Defendant(s) shall mail or deliver courtesy hard-copies of all motions over 10 pages in

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length to the court at 2500 Tulare St., Room 1501, Fresno, CA 93721. Courtesy hard-copies

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shall reflect the CM/ECF document numbers and pagination.

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III.

NON-EXPERT DISCOVERY DEADLINE

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The deadline for the completion of all non-expert discovery is February 23, 2018. All

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non-expert discovery must be provided by this date, including discovery compelled following the

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discovery conference.

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IV.

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EXPERT DISCOVERY DEADLINES
The deadline for all parties to serve their expert disclosures is March 23, 2018. Parties

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have until April 20, 2018, to serve their rebuttal expert disclosures.

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completion of all expert discovery is May 11, 2018.

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V.

The deadline for the

DISPOSITIVE MOTIONS DEADLINE

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The deadline for filing all dispositive motions pursuant to Fed. R. Civ. P. 56 is June 15,

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2018. Failure to raise the exhaustion of administrative remedies issue by this deadline will result

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in waiver of the defense. See Albino v. Baca, 747 F.3d 1162, 1170 (9th Cir. 2014) (providing that

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the exhaustion question should be decided as early as feasible).

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VI.

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MAGISTRATE JUDGE JURISDICTION
The parties have declined the jurisdiction of a magistrate judge pursuant to 28 U.S.C. §

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636(c). (ECF No. 25).

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VII.

TELEPHONIC TRIAL CONFIRMATION HEARING

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A Telephonic Trial Confirmation Hearing is set for April 18, 2019, at 8:15 a.m., in

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Courtroom 4, before District Judge Lawrence J. O’Neill. Counsel for Defendant(s) is required to

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Parties may seek leave by filing a short motion.

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arrange for the participation of Plaintiff in the Telephonic Trial Confirmation Hearing and to

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initiate the telephonic hearing by arranging a one line conference call and telephoning the Court

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at [phone].

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In addition to the matters already required to be addressed in the pretrial statement in

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accordance with Local Rule 281, Plaintiff will be required to make a particularized showing in

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order to obtain the attendance of witnesses. The procedures and requirements for making such a

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showing are outlined in detail below.

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procedures set forth below may result in the preclusion of any or all witnesses named in his

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pretrial statement.

Plaintiff is advised that failure to comply with the

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At the trial of this case, Plaintiff must be prepared to introduce evidence to prove each of

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the alleged facts that support the claims raised in the lawsuit. In general, there are two kinds of

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trial evidence: (1) exhibits and (2) the testimony of witnesses. It is Plaintiff’s responsibility to

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produce all of the evidence to prove his case, whether that evidence is in the form of exhibits or

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witness testimony.

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procedures to ensure that the witnesses will be at the trial and available to testify.

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If Plaintiff wants to call witnesses to testify, he must follow certain

Procedures for Obtaining Attendance of Incarcerated Witnesses Who Agree to

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Testify Voluntarily - An incarcerated witness who agrees voluntarily to attend trial to give

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testimony cannot come to court unless this Court orders the warden or other custodian to permit

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the witness to be transported to court. This Court will not issue such an order unless it is satisfied

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that: (a) the prospective witness is willing to attend; and (b) the prospective witness has actual

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knowledge of relevant facts.

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A party intending to introduce the testimony of incarcerated witnesses who have agreed to

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voluntarily attend the trial must serve and file a written motion for a court order requiring that

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such witnesses be brought to court at the time of trial. The motion must: (1) state the name,

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address, and prison identification number of each such witness; and (2) be accompanied by

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declarations showing that each witness is willing to testify and that each witness has actual

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knowledge of relevant facts.

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Incarcerated Witnesses.”

The motion should be entitled “Motion for Attendance of

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The willingness of the prospective witness can be shown in one of two ways: (1) the party

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himself can swear by declaration under penalty of perjury that the prospective witness has

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informed the party that he or she is willing to testify voluntarily without being subpoenaed, in

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which declaration the party must state when and where the prospective witness informed the party

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of this willingness; or (2) the party can serve and file a declaration, signed under penalty of

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perjury by the prospective witness, in which the witness states that he or she is willing to testify

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without being subpoenaed.

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The prospective witness’s actual knowledge of relevant facts can be shown in one of two

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ways: (1) if the party has actual firsthand knowledge that the prospective witness was an

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eyewitness or an ear-witness to the relevant facts (e.g., if an incident occurred in Plaintiff’s cell

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and, at the time, Plaintiff saw that a cellmate was present and observed the incident, Plaintiff may

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swear to the cellmate’s ability to testify), the party himself can swear by declaration under penalty

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of perjury that the prospective witness has actual knowledge; or (2) the party can serve and file a

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declaration signed under penalty of perjury by the prospective witness in which the witness

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describes the relevant facts to which the prospective witness was an eye- or ear witness. Whether

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the declaration is made by the party or by the prospective witness, it must be specific about the

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incident, when and where it occurred, who was present, and how the prospective witness

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happened to be in a position to see or to hear what occurred at the time it occurred.

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2.

Procedures for Obtaining Attendance of Incarcerated Witnesses Who Refuse to

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Testify Voluntarily - If a party seeks to obtain the attendance of incarcerated witnesses who

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refuse to testify voluntarily, the party should serve and file a written motion for a court order

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requiring that such witnesses be brought to court at the time of trial. Such motion should be in

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the form described above. In addition, the party must indicate in the motion that the incarcerated

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witnesses are not willing to testify voluntarily.

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The Court will review and rule on the motion(s) for attendance of incarcerated witnesses,

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specifying which prospective witnesses must be brought to court. Subsequently, the Court will

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issue the order necessary to cause the witness’s custodian to bring the witness to court.

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Motion(s) for the attendance of incarcerated witnesses, if any, must be filed on or before
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February 18, 2019. Oppositions, if any, must be filed on or before March 18, 2019.
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Procedures for Obtaining Attendance of Unincarcerated Witnesses Who Agree to

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Testify Voluntarily - It is the responsibility of the party who has secured an unincarcerated

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witness’s voluntary attendance to notify the witness of the time and date of trial. No action need

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be sought or obtained from the Court.

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4.

Procedures for Obtaining Attendance of Unincarcerated Witnesses Who Refuse to

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Testify Voluntarily - If a prospective witness is not incarcerated, and he or she refuses to testify

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voluntarily, the witness must be served with a subpoena. Fed. R. Civ. P. 45. In addition, the

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party seeking the witness’s presence must tender an appropriate sum of money for the witness.

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Id. In the case of an unincarcerated witness, the appropriate sum of money is the daily witness

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fee of $40.00 plus the witness’s travel expenses. 28 U.S.C. § 1821.

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If Plaintiff wishes to obtain the attendance of one or more unincarcerated witnesses who

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refuse to testify voluntarily, Plaintiff must first notify the Court in writing of the name and

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location of each unincarcerated witness. The Court will calculate the travel expense for each

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unincarcerated witness and notify Plaintiff of the amount(s). Plaintiff must then, for each witness,

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submit a money order made payable to the witness for the full amount of the witness’s travel

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expenses plus the daily witness fee of $40.00. The subpoena will not be served upon the

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unincarcerated witness by the United States Marshal unless the money order is tendered to the

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Court. Because no statute authorizes the use of public funds for these expenses in civil cases, the

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tendering of witness fees and travel expenses is required even if Plaintiff was granted leave to

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proceed in forma pauperis.

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If Plaintiff wishes to have the Marshal serve any unincarcerated witnesses who refuse to

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testify voluntarily, Plaintiff must submit the money orders to the Court no later than March 18,

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2019. In order to ensure timely submission of the money orders, Plaintiff must notify the Court

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of the names and locations of his witnesses, in compliance with step 4 above, no later than

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February 18, 2019.

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Plaintiff shall file and serve a pretrial statement as described in this order on or before

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February 18, 2019. Defendant(s) shall file and serve a pretrial statement as described in this
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order on or before March 18, 2019.

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The parties are advised that failure to file pretrial statements as required by this order may

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result in the imposition of appropriate sanctions, which may include dismissal of the action or

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entry of default.

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The Clerk is DIRECTED to send Plaintiff a copy of Local Rule 281(b).
VIII. TRIAL DATE

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A trial is set for June 18, 2019, at 8:30 a.m., in Courtroom 4, before

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District Judge Lawrence J. O’Neill.

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IX.

EFFECT OF THIS ORDER

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This order represents the Court and the parties’ best estimated schedule to complete this

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case. Any party unable to comply with the dates outlined in this order shall immediately file an

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appropriate motion or stipulation identifying the requested modification(s).

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The dates set in this order are considered to be firm and will not be modified absent a

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showing of good cause, even if a stipulation to modify is filed. Due to the impacted nature of the

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civil case docket, this Court disfavors requests to modify established dates.

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Failure to comply with this order may result in the imposition of sanctions.

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IT IS SO ORDERED.
Dated:

August 29, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

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