Coleman, et al v. Schwarzenegger, et al

Filing 7961

ORDER signed by Chief District Judge Kimberly J. Mueller on 09/25/2023 GRANTING the 7948 Motion in Limine as to the admissibility of excerpts from the deposition of Paul Burton, M.D., DENYING without prejudice as to the admissibility of excerpts f rom the depositions of Alexandra David, M.D., Shelley Minor, Ph.D., and Kelley Franceschi, Psy. D., and DENYING as moot as to out-of-court statements by union representatives. The 7949 Motion in Limine is DENIED as moot as to the admissibility of e xcerpts from the deposition of Paul Burton, M.D., and DENIED without prejudice as to the admissibility of excerpts from the depositions of Alexandra David, M.D., Shelley Minor, Ph.D., and Kelley Franceschi, Psy.D. Plaintiffs' designations of exc erpts from the deposition of Dr. Burton due by 9/28/2023. Defendants' counter-designations together with any objections to plaintiff's designations due by 10/2/2023. Plaintiffs' objections to defendants' counter-designations due by 10/5/2023. Parties shall also file a copy of Dr. Burton's deposition transcript annotated to reflect the designations and counter-designations as well as objections, if any, to specific excerpts. (Spichka, K.)

Case 2:90-cv-00520-KJM-DB Document 7961 Filed 09/25/23 Page 1 of 3
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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RALPH COLEMAN, et al.,

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No. 2:90-cv-0520 KJM DB

Plaintiffs,

ORDER

v.
GAVIN NEWSOM, et al.,

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Defendants.

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In advance of the hearing set to begin September 29, 2023, the parties filed motions in

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limine on September 15, 2023, some of which the court addresses here. ECF No. 7948

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(plaintiffs’ motion); ECF No. 7949 (defendants’ motion). The motions are opposed. ECF No.

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7955 (defendants’ opposition); ECF No. 7959 (plaintiffs’ opposition). After review, and good

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cause appearing, the motions are denied as explained below.

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With one limited exception,1 the motions center on whether plaintiffs may introduce into

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evidence depositions of four individuals who, at the time of their depositions, were employed by

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Plaintiffs also moved to exclude certain out-of-court statements made by union
representatives. ECF No. 7948 at 2,4. Defendants do not oppose this part of plaintiffs’ motion
and have removed the challenged documents from their exhibit list. ECF No. 7955 at 1 n.1.

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Case 2:90-cv-00520-KJM-DB Document 7961 Filed 09/25/23 Page 2 of 3
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the California Department of Corrections and Rehabilitation (CDCR).2 Defendants contend

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Federal Rule of Civil Procedure 32 controls use of the deposition excerpts at hearing and that

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plaintiffs have not established the necessary prerequisites under that rule to permit them to offer

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the excerpts into evidence. Plaintiffs contend admission of the excerpts is authorized under

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Federal Rule of Evidence 801(d)(2)(D), Rule 801 is an independent basis for admitting

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depositions at hearing and, in any event, they have met the relevant requirements of Rule 32.

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The parties now agree Dr. Burton’s testimony may be presented via deposition to

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streamline the hearing, see ECF No. 7955 at 3, though defendants contend Dr. Burton’s

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deposition testimony is “not automatically admissible as substantive evidence” and “[p]laintiffs

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must lay a proper foundation for each statement they seek to admit as evidence.” Id. at 3 & n.3.

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Given the general agreement to present Dr. Burton’s testimony through deposition, the court will

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follow the procedure it followed for admission of excerpts of the deposition of Dr. Kevin Kuich

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into evidence at the evidentiary hearing in 2019 on issues arising from the Golding Report and the

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Neutral Expert Report. Specifically, on or before September 28, 2023, plaintiffs shall file their

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designations from the deposition of Dr. Burton. On or before October 2, 2023, defendants shall

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file their counter-designations from the deposition of Dr. Burton together with any objections to

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plaintiffs’ designations. On or before October 5, 2023, plaintiffs shall file any objections to

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defendants’ counter-designations and the parties shall file a copy of the deposition transcript

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annotated to reflect the designations and counter-designations as well as objections, if any, to

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specific excerpts. Cf. ECF No. 6406 (Annotated Transcript of Deposition Testimony of Kevin

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Kuich, M.D.). The court will resolve objections, if any, by written order. Cf. October 21, 2019

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Order, ECF No. 6357 (resolving objections to admissibility of Kuich deposition excerpts).

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The other three CDCR employees are all designated as plaintiffs’ witnesses at hearing.

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ECF No. 7941 at 3. It is not clear from the record why plaintiffs would seek to offer excerpts
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The four employees are Alexandra David, M.D., Chief of Mental Health at California
Medical Facility (CMF); Shelley Minor, Ph.D., Chief Psychologist for the intermediate
Psychiatric Inpatient Program (PIP) at California Health Care Facility (CHCF); Paul Burton,
M.D., Chief Psychiatrist at San Quentin State Prison; and Kelley Franceschi, Psy.D, Chief of
Mental Health at California State Prison—Sacramento (CSP-Sacramento). See Exs. A through D
to Decl. of Gourse, ECF No. 7948-1.
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Case 2:90-cv-00520-KJM-DB Document 7961 Filed 09/25/23 Page 3 of 3
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from their depositions as evidence separately from live testimony of the witnesses. For that

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reason, the court will not resolve the parties’ dispute over the admissibility of these excerpts and

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both motions will be denied without prejudice as to the admission of deposition excerpts from

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these three witnesses.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiffs’ September 15, 2023 motion in limine, ECF No. 7948 is GRANTED as to the

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admissibility of excerpts from the deposition of Paul Burton, M.D., DENIED without prejudice as

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to the admissibility of excerpts from the depositions of Alexandra David, M.D., Shelley Minor,

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Ph.D., and Kelley Franceschi, Psy.D, and DENIED as moot as to out-of-court statements by

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union representatives.
2. Defendants’ September 15, 2023 motion in limine, ECF No. 7949 is DENIED as moot

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as to the admissibility of excerpts from the deposition of Paul Burton, M.D., and DENIED

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without prejudice as to the admissibility of excerpts from the depositions of Alexandra David,

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M.D., Shelley Minor, Ph.D., and Kelley Franceschi, Psy.D.

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3. On or before September 28, 2023, plaintiffs shall file their designations of excerpts

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from the deposition of Dr. Burton. On or before October 2, 2023, defendants shall file their

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counter-designations together with any objections to plaintiffs’ designations. On or before

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October 5, 2023, plaintiffs shall file any objections to defendants’ counter-designations and the

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parties shall file a copy of Dr. Burton’s deposition transcript annotated to reflect the designations

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and counter-designations as well as objections, if any, to specific excerpts.

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DATED: September 25, 2023.

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