United States of America v. Sierra Pacific Industries et al

Filing 255

STIPULATION and ORDER 254 to resolve Discovery disagreement signed by Magistrate Judge Edmund F. Brennan on 8/1/2011. Parties agree that number of percipient depositions Sierra Pacific and other defendants may take in federal action shall be increased by 5 from that which was previously ordered by Court. All depositions in defendants' allotment will be completed by pending Discovery deadline of 8/15/2011. (Marciel, M)

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DOWNEY BRAND LLP
WILLIAM R. WARNE (Bar No. 141280)
MICHAEL J. THOMAS (Bar No. 172326)
ANNIE S. AMARAL (Bar No. 238189)
621 Capitol Mall, 18th Floor
Sacramento, CA 95814-4731
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Defendant/Cross-Defendant
SIERRA PACIFIC INDUSTRIES

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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UNITED STATES OF AMERICA,

Case No. 2:09-CV-02445-KJM-EFB

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Plaintiff,

STIPULATION AND ORDER TO
RESOLVE DISCOVERY
DISAGREEMENT

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v.
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SIERRA PACIFIC INDUSTRIES, et al.
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Defendants.
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AND RELATED CROSS-ACTIONS

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Defendant Sierra Pacific Industries (“Sierra Pacific”), and Plaintiff the United States of

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America (“United States”), by and through their respective counsel, hereby submit the following

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Stipulation as notice to the Court that they have resolved the discovery disagreement currently set

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for hearing on August 3, 2011.

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RECITALS

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1.

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The above-captioned action arises out of a wildfire known as the “Moonlight

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Fire,” which ignited in Plumas County on September 3, 2007 (the “Federal Action”). There are

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six cases pending in Plumas County Superior Court that also arise out of the Moonlight Fire (the

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“State Actions”).
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STIPULATION AND [PROPOSED] ORDER

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2.

On May 31, 2011, Sierra Pacific filed a Notice of Motion and Motion For Leave to

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Take Additional Depositions; For Additional Time For the Depositions of Special Agent Diane

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Welton and Battalion Chief Ron Heinbockel; to Compel the Production of Special Agent Marion

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Matthews For the Conclusion of Her Deposition; and to Compel Production of Documents

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(“Motion”). Sierra Pacific noticed its Motion for hearing on June 22, 2011.

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explained that the parties’ joint statement was still due on June 15, 2011.

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On June 2, the Court continued the hearing on the Motion to June 29, 2011, but

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On June 15, 2011, the parties filed a Joint Statement Re Discovery Dispute (“Joint

Statement”) and various documents in support of their respective positions.

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5.

On June 24, 2011, the Court continued the hearing on the Motion to July 13, 2011,

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and ordered the parties to meet and confer in person and to make all reasonable compromises

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necessary to resolve their disputes. If the parties did not settle their disputes, the Court ordered

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them to file a revised joint statement by July 6, 2011.

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6.

On June 29, 2011, counsel for Sierra Pacific, the United States, and Defendants

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W.M. Beaty and Associates (“Beaty”) and the Landowner Defendants met and conferred in the

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Court’s jury room for approximately two and a half hours. Counsel did not reach an agreement.

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7.

Between June 30, 2011, and July 6, 2011, the parties continued to meet and confer

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telephonically in an effort to reach an agreement. For reasons which the parties do not agree

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upon, the Court dropped the Motion from its July 13 calendar. On July 13, 2011, Sierra Pacific

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re-noticed the motion and set it for hearing on August 3, 2011 (“August 3 Motion”).

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8.

On July 27, 2011, the parties appeared before the Court for a hearing (the

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“Hearing”). At the Hearing, the parties, with the Court’s guidance, reached the following

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stipulation to resolve the August 3 Motion.

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Now therefore, in consideration of the foregoing recitals, the United States and Sierra
Pacific hereby STIPULATE as follows:

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STIPULATION

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1.

The parties agree that the number of percipient depositions Sierra Pacific and the

other defendants (collectively, “Defendants”) may take in the Federal Action shall be increased
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STIPULATION AND [PROPOSED] ORDER

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by five (5) from that which was previously ordered by the Court. This brings the total remaining

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depositions that Defendants may notice in the Federal Action to eight (8) (the “Allotment”).1 On

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July 15, 2011, Sierra Pacific noticed seven of the eight depositions comprising the Allotment,

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and will notice the additional witness’s deposition by close of business on July 27, 2011.

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2.

The United States agrees that transcripts of the following depositions to be taken

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in the State Actions shall be treated as if taken in the Federal Action, but will not count towards

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Defendants’ Allotment:

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1. Nick Beecham

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2. Kelly Holt

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3. Dennis Burns

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4. Walt Darran

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5. Danny Rackley

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6. Joe Waterman

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7. William Molumby

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8. Kent Swartzlander

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3.

The United States’ objections to questions posed during the depositions of

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Beecham, Holt, Burns, Darran, Rackley, and Waterman shall be preserved and Defendants’

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response to any such objections shall be preserved. Sierra Pacific agrees to coordinate with the

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United States when scheduling Mr. Molumby’s and Mr. Swartzlander’s depositions, as the

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United States anticipates defending the depositions of these former federal employees. To the

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extent the United States does defend Mr. Molumby and Mr. Swartzlander, all objections must be

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made on the record. The Parties agree to cooperate in good faith to schedule and conduct the

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depositions of Mr. Molumby and Mr. Schwartzlander by August 30, 2011.

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4.

When the Molumby and Swartzlander depositions are noticed in the State

Actions, they will be noticed to occur at a location that complies with the California Code of

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The outstanding deposition notices for Alan Carlson and Maria Garcia, and the continued deposition notice of
Diane Welton, have already been applied to Defendants’ number of available notices and shall not count against the
Allotment.
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STIPULATION AND [PROPOSED] ORDER

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Civil Procedure. The United States has the right to attend the Beecham, Holt, Burns, Darran,

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Rackley, and Waterman depositions by phone or live feed.

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5.

All depositions in Defendants’ Allotment will be completed by the pending

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discovery deadline of August 15, 2011. Rule 16 shall apply to any requests to modify the

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discovery deadline set forth in the Court’s scheduling order. The Parties agree that to the extent

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feasible, depositions will not be triple tracked, but in no event will more than three people be

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deposed simultaneously.

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
DATED: July 27, 2011

U.S. ATTORNEY’S OFFICE

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By:

/s/ Kelli Taylor (as authorized on 7/27/11)
KELLI TAYLOR
Attorneys for Plaintiff
UNITED STATES OF AMERICA

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DATED: July 27, 2011

DOWNEY BRAND LLP

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By:

/s/ Michael J. Thomas
MICHAEL J. THOMAS
Attorneys for Defendant/Cross-Defendant
SIERRA PACIFIC INDUSTRIES

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DATED: July 27, 2011

MATHENY SEARS LINKERT AND JAIME

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By: /s/ Richard S. Linkert (as authorized on 7/27/11)
RICHARD S. LINKERT
Attorneys for Defendant
W.M. BEATY AND ASSOCIATES, INC. AND
LANDOWNER DEFENDANTS

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STIPULATION AND [PROPOSED] ORDER

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DATED: July 27, 2011

RUSHFORD AND BONOTTO, LLP

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By: /s/ Phil Bonotto (as authorized on 7/27/11)
PHIL BONOTTO

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Attorneys for Defendant
EUNICE HOWELL, INDIVIDUALLY AND D/B/A
HOWELL’S FOREST HARVESTING PRODUCTS

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ORDER

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Pursuant to the stipulation of the parties and good cause appearing, IT IS SO ORDERED.

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DATED: August 1, 2011

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STIPULATION AND [PROPOSED] ORDER