Alexander v. Solano County Detention Facility, et al.

Filing 19

DISCOVERY AND SCHEDULING ORDER signed by Magistrate Judge Carolyn K. Delaney on 5/16/14: Discovery due by 9/5/2014. All pretrial motions, except motions to compel discovery, shall be filed on or before 12/1/2014. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMES S. ALEXANDER,

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Plaintiff,

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v.

No. 2:13-cv-2566 GEB CKD P

DISCOVERY AND

SOLANO COUNTY DETENTION
FACILITY, et al.,

SCHEDULING ORDER

Defendants.

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Defendant Conners has answered the complaint. Pursuant to Federal Rules of Civil

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Procedure 1, 16, and 26-36, discovery shall proceed in accordance with paragraphs 1-5 of this

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order. In addition, the court will set a schedule for this litigation.

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Should this matter proceed to trial the court will, by subsequent order, require the parties

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to file pretrial statements. In addition to the matters required to be addressed in the pretrial

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statement in accordance with Local Rule 281, plaintiff will be required to make a particularized

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showing in the pretrial statement in order to obtain the attendance of witnesses at trial. Plaintiff is

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advised that failure to comply with the procedures set forth below may result in the preclusion of

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any and all witnesses named in the pretrial statement.

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

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of 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 the plaintiff’s responsibility

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

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or witness testimony. If the plaintiff wants to call witnesses to testify, plaintiff must follow

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

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I.

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Procedures for Obtaining Attendance of Incarcerated Witnesses Who Agree to
Testify Voluntarily

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An incarcerated witness who agrees voluntarily to attend trial to give testimony cannot

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come to court unless this court orders the warden or other custodian to permit the witness to be

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transported to court. This court will not issue such an order unless it is satisfied that:

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1. The prospective witness is willing to attend;

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and

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2. The prospective witness has actual knowledge of relevant facts.

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With the pretrial statement, a party intending to introduce the testimony of incarcerated

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witnesses who have agreed voluntarily to attend the trial must serve and file a written motion for

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a court order requiring that such witnesses be brought to court at the time of trial. The motion

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must:

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1. State the name, CDC Identification number, and address of each such witness;

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and

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2. Be accompanied by affidavits showing that each witness is willing to testify

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and that each witness has actual knowledge of relevant facts.

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The willingness of the prospective witness can be shown in one of two ways:

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1. The party can swear by affidavit that the prospective witness has informed the

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party that he or she is willing to testify voluntarily without being subpoenaed. The

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party must state in the affidavit when and where the prospective witness informed

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the party of this willingness;

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Or

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2. The party can serve and file an affidavit sworn to by the prospective witness, in

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which the witness states that he or she is willing to testify without being

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

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ways:

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1. The party can swear by affidavit that the prospective witness has actual

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knowledge. However, this can be done only if the party has actual firsthand

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knowledge that the prospective witness was an eyewitness or an ear-witness to the

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relevant facts. For example, if an incident occurred in the plaintiff’s cell and, at

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the time, the plaintiff saw that a cellmate was present and observed the incident,

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the plaintiff may swear to the cellmate’s ability to testify.

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Or

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2. The party can serve and file an affidavit sworn to by the prospective witness in

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which the witness describes the relevant facts to which the prospective witness

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was an eye- or ear-witness. Whether the affidavit is made by the plaintiff or by the

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prospective witness, it must be specific about what the incident was, when and

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where it occurred, who was present, and how the prospective witness happened to

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

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The court will review and rule on the motion 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’ custodian to bring the witness to court.

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II.

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Procedures for Obtaining Attendance of Incarcerated Witnesses Who Refuse to
Testify Voluntarily

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If a party seeks to obtain the attendance of incarcerated witnesses who refuse to testify

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voluntarily, the party should submit with the pretrial statement a motion for the attendance of

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such witnesses. Such motion should be in the form described above. In addition, the party must

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indicate in the motion that the incarcerated witnesses are not willing to testify voluntarily.

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III.

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Procedures for Obtaining Attendance of Unincarcerated Witnesses Who Agree to
Testify Voluntarily

It is the responsibility of the party who has secured an unincarcerated witness’ voluntary

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attendance to notify the witness of the time and date of trial. No action need be sought or

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obtained from the court.

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IV.

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Procedures for Obtaining Attendance of Unincarcerated Witnesses Who Refuse to
Testify Voluntarily

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If a prospective witness is not incarcerated, and he or she refuses to testify voluntarily, not

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earlier than four weeks and not later than two weeks before trial, the party must prepare and

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submit to the United States Marshal a subpoena for service by the Marshal upon the witness.

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(Blank subpoena forms may be obtained from the Clerk of the Court). Also, the party seeking the

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witness’ presence must tender an appropriate sum of money to the witness through the United

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States Marshal. In the case of an unincarcerated witness, the appropriate sum of money is the

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daily witness fee of $40.00 plus the witness’ travel expenses.

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A subpoena will not be served by the United States Marshal upon an unincarcerated

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witness unless the subpoena is accompanied by a money order made payable to the witness for

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the full amount of the witness’ travel expenses plus the daily witness fee of $40.00. As noted

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earlier, 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 the party was granted leave to

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proceed in forma pauperis.

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Good cause appearing, IT IS HEREBY ORDERED that:

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1. Discovery requests shall be served by the party seeking the discovery on all parties to

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the action.1 Discovery requests shall not be filed with the court except when required by Local

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Rules 250.1, 250.2, 250.3 and 250.4.

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2. Responses to written discovery requests shall be due forty-five days after the request is
served.
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If an attorney has filed a document with the court on behalf of any defendant, then plaintiff must
serve documents on that attorney and not on the defendant. See Fed. R. Civ. P. 5(b).
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3. The parties are cautioned that filing of discovery requests or responses, except as

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required by rule of court, may result in an order of sanctions, including, but not limited to, a

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recommendation that the action be dismissed or the answer stricken.

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4. Pursuant to Federal Rule of Civil Procedure 30(a), defendants may depose plaintiff and

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any other witness confined in a prison upon condition that, at least fourteen days before such a

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deposition, defendants serve all parties with the notice required by Fed. R. Civ. P. 30(b)(1).

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5. If disputes arise about the parties’ obligations to respond to requests for discovery, the

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parties shall comply with all pertinent rules including Rules 5, 7, 11, 26, and 37 of the Federal

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Rules of Civil Procedure and Rules 134, 135, 130, 131, 110, 142, and 230(l) of the Local Rules of

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Practice for the United States District Court, Eastern District of California; unless otherwise

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ordered, Local Rule 251 shall not apply. Filing of a discovery motion that does not comply with

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all applicable rules may result in imposition of sanctions, including but not limited to denial of the

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motion.

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6. The parties may conduct discovery until September 5, 2014. Any motions necessary

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to compel discovery shall be filed by that date. All requests for discovery pursuant to Fed. R.

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Civ. P. 31, 33, 34 or 36 shall be served not later than sixty days prior to that date.

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7. All pretrial motions, except motions to compel discovery, shall be filed on or before

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December 1, 2014. Motions shall be briefed in accordance with paragraph 8 of this court’s order

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filed March 21, 2014.

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8. Pretrial conference and trial dates will be set, as appropriate, following adjudication of

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any dispositive motion, or the expiration of time for filing such a motion.

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Dated: May 16, 2014

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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2/mp
Alex2566.41

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