Lamon v.Lytle, et al

Filing 317

ORDER signed by Chief Circuit Judge Alex Kozinski on 3/25/10 ORDERING that deft's 304 Motion to Vacate the ad testificandum is DENIED; pltf's 305 Subpoena request is DENIED as untimely; pltf's 311 Request to make a computer available at trial is GRANTED. The court will consider deft's 312 Motion re habit evidence at trial. (cc: Sacramento IT) (Owen, K)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA * * * * * * * * * * * * * * * * ** * BARRY LAMON, * * Plaintiff, * * v. * * D. LYTLE, et al., * * Defendants. * * * * * * * * * * * * * * * * * * * ** No. 2:03-cv-00423-AK ORDER Defendants have filed a sworn affidavit by one of plaintiff's incarcerated witnesses stating that the witness does not remember the events at issue and does not wish to testify. Defendants therefore ask that I vacate the writ of habeas corpus ad testificandum issued for this witness. Defendants have known the identity of this witness, and that he would be called to testify, since at least July of 2008. Moreover, although defendants obtained the witness's affidavit on March 11, they waited to file their motion until March 17, less than two weeks before trial. This motion is therefore denied as untimely. The motion is also denied on the merits. If the witness has nothing relevant to say, he can testify to that effect under oath and page 2 subject to cross examination. Plaintiff's request for a subpoena is likewise denied as untimely. Plaintiff seeks documentary evidence of the type that would ordinarily be obtained through discovery, and a trial subpoena may not be used to continue discovery after the time for discovery has closed. See Integra Lifesciences I, Ltd. v. Merck KGaA, 190 F.R.D. 556, 561 (S.D. Cal. 1999). Plaintiff's request that the court make a computer available at trial is granted. The court will consider defendants' motion concerning habit evidence at the time of trial. March 25, 2010 A ___________________________ ALEX KOZINSKI Chief Circuit Judge Sitting by designation

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