McClintock v. Cooper et al

Filing 47

ORDER signed by Magistrate Judge Kendall J. Newman on 4/7/2020 DENYING 43 Motion to Set Aside his deposition. GRANTING 46 Motion for a 45 days extension of time. The parties may conduct discovery until 6/1/2020, any motions to compel shall be filed by that date. All pretrial motions, except motions to compel discovery, shall be filed on or before 8/24/2020. All other deadlines in the Discovery and Scheduling Order (ECF No. 30 ) remain in effect. (Reader, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN C. McCLINTOCK,

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No. 2: 18-cv-0560 JAM KJN P

Plaintiff,
v.

ORDER

T. COOPER, et al.,
Defendants.

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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

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to 42 U.S.C. § 1983. On April 1, 2020, the undersigned ordered defendants to respond to

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plaintiff’s March 30, 2020 motion requesting that his deposition, set for April 10, 2020, be set

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aside due to the Covid-19 pandemic. (ECF No. 45.) On April 3, 2020, defendants filed a

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response to plaintiff’s motion to set aside his deposition and a motion for an extension of time to

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conduct discovery and to file a dispositive motion. (ECF No. 46.)

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The undersigned discusses these pending motions herein.

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In his motion to set aside his deposition, plaintiff alleges that he suffers from a well-

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documented, pre-existing chronic restrictive pulmonary condition, in addition to asthma. (ECF

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No. 43.) Plaintiff is concerned that attending his deposition, which will be attended by defense

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counsel, a court reporter and prison staff, may cause him to be exposed to Covid-19. (Id.)

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Plaintiff requests that his deposition be rescheduled for a later date. (Id.)

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On April 1, 2020, the undersigned ordered defendants to inform the court of the status of

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plaintiff’s deposition. (ECF No. 45.) If plaintiff’s deposition was scheduled for April 10, 2020,

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defendants were directed to address plaintiff’s health concerns and why the deposition could not

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be scheduled for a later date. (Id.)

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In the April 3, 2020 pleading, defendants state that on March 27, 2020, the California

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Department of Corrections and Rehabilitation (“CDCR”) informed defense counsel that attorneys

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and court reporters were no longer allowed to physically enter any state prisons. (ECF No. 46 at

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3.) Therefore, plaintiff’s deposition scheduled for April 10, 2020 cannot go forward. (Id.)

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Defendants have tentatively rescheduled plaintiff’s deposition to take place on May 7, 2020, via

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video conference. (Id.) However, defendants may need to reschedule plaintiff’s deposition again

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because the Board of Parole Hearings (“BPH”) has first priority over the video conference rooms

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in order to conduct remote parole hearings. (Id.)
Because defendants intend to conduct plaintiff’s deposition via video conference,

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plaintiff’s concerns expressed in the motion to set aside his deposition are largely addressed.

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Defense counsel shall ensure that plaintiff and prison staff who attend the deposition with

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plaintiff maintain appropriate social distancing during the deposition. Accordingly, plaintiff’s

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motion to set aside his deposition is denied as moot.

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Based on plaintiff’s delayed deposition, defendants request that the discovery and

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dispositive motion deadlines be extended by forty-five days. Good cause appearing, this request

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is granted.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion to set aside his deposition (ECF No. 43) is denied;

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2. Defendants’ motion for a forty-five days extension of time (ECF No. 46) is granted;

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3. The parties may conduct discovery until June 1, 2020; any motions to compel shall be

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filed by that date;
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All pretrial motions, except motions to compel discovery, shall be filed on or before

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August 24, 2020. All other deadlines in the Discovery and Scheduling Order (ECF

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No. 30) remain in effect.

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Dated: April 7, 2020

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Mc560.dep(2)
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