Ibrahim v. Department of Homeland et al

Filing 616

FINAL PRETRIAL ORDER, Motions terminated: 604 MOTION in Limine No. 1 to Exclude Proferred Expert Testimony filed by Tom Ridge, National Counterterrorism Center, Eric H. Holder, Jr., Department of State, Arthur M. Cummings, II, J anet Napolitano, Hilary Clinton, Federal Bureau of Investigation, Michael E. Leiter, Michael Chertoff, Department of Homeland Security, Terrorist Screening Center, Leonard C. Boyle, Robert Mueller, Donna A. Bucella, 595 MOTION in Limin e Plaintiff's Motion in Limine No. 2 to Exclude Witnesses Not Permitted to be Deposed by Plaintiff filed by Rahinah Ibrahim, 606 MOTION in Limine No. 3 to Exclude Proffered Exhibits filed by Tom Ridge, National Counterterr orism Center, Eric H. Holder, Jr., Department of State, Arthur M. Cummings, II, Janet Napolitano, Hilary Clinton, Federal Bureau of Investigation, Michael E. Leiter, Michael Chertoff, Department of Homeland Security, Terrorist Screening Ce nter, Leonard C. Boyle, Donna A. Bucella, Robert Mueller, 605 MOTION in Limine No. 2 to Exclude Proffered Fact Witnesses filed by Tom Ridge, National Counterterrorism Center, Eric H. Holder, Jr., Department of State, Arthur M. Cummi ngs, II, Janet Napolitano, Hilary Clinton, Federal Bureau of Investigation, Michael E. Leiter, Michael Chertoff, Department of Homeland Security, Terrorist Screening Center, Leonard C. Boyle, Donna A. Bucella, Robert Mueller, 594 MOTIO N in Limine Plaintiff's Motion in Limine No. 1 to Exclude Evidence Submitted Ex Parte by Defendants and Not Ordered Produced to Plaintiff filed by Rahinah Ibrahim.. Signed by Judge Alsup on November 15, 2013. (whalc1, COURT STAFF) (Filed on 11/15/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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RAHINAH IBRAHIM,

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For the Northern District of California

United States District Court

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Plaintiff,

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No. C 06-00545 WHA

v.

FINAL PRETRIAL ORDER

DEPARTMENT OF HOMELAND
SECURITY, et al.,
Defendants.

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FOR GOOD CAUSE and after a final pretrial conference, the following constitutes the
final pretrial order and rulings on motions in limine:
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This case shall go to a BENCH TRIAL on DECEMBER 2, at 7:30 A.M., and shall

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continue until completed on the schedule discussed at the conference. The issues to be tried shall

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be those set forth in the joint proposed pretrial order except to the extent modified by order in

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limine. This final pretrial order supersedes all the complaint, answer and any counterclaims,

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cross-claims or third-party complaints, i.e., only the issues expressly identified for trial remain in

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the case.

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2.

For the reasons stated at the November 15 pretrial conference, this order rules as

follows on the motions in limine submitted by plaintiff and defendants:
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Plaintiff’s MIL #1: This motion raises two issues. First, the motion to exclude
defendants from relying on evidence submitted ex parte under the state secrets
doctrine for the merits of this action is DENIED. Defendants’ have made

on any of the evidence submitted ex parte for which there has been a state secrets

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privilege assertion for the merits of this action. Additionally, defendants have

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waited until mere weeks before trial (after this action has been pending since 2006)

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to raise for the first time an argument that information submitted ex parte may be

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relied upon to dismiss the case. Defendants’ state secrets privilege arguments (if

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any) may be entertained on a case by case basis when appropriate during trial.

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Second, this order construes plaintiff’s suggestion that the undersigned judge

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consider recusal as a motion. As stated at the pretrial conference, the Court (and

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the undersigned judge in its experience on the bench) reviews materials ex parte

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For the Northern District of California

representations in the record no less than three times that it does not intend to rely

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United States District Court

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and in camera for discovery purposes from time to time. This review is routinely

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completed without recusal. Here too recusal is not warranted. The undersigned

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judge is able to compartmentalize its review of the documents submitted ex parte

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for discovery purposes and subsequently excluded in this action. Accordingly, this

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motion is DENIED.

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Plaintiff’s MIL #2: Plaintiff is permitted to depose John Bondanella and Lee

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Korman each for one day where the witnesses reside before trial. This motion is

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otherwise DENIED.

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Defendants’ MIL #1: The motion to exclude the testimony of Professors Kahn

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and Sinnar is DENIED, subject to the guidance as stated at the pretrial conference.

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Professor Sinnar shall not testify anecdotally regarding her experiences as a civil

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rights attorney. Such testimony is cloaked in privilege, of minimal probative

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value, and may contain inadmissible hearsay.

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Defendants’ MIL #2: The motion to exclude Eric Holder and James Clapper is
GRANTED. The remainder of the motion is DENIED WITHOUT PREJUDICE.

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Defendants’ MIL #3: The motion to exclude categories of plaintiff’s proffered

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exhibits is DENIED WITHOUT PREJUDICE. The undersigned judge will consider

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timely raised objections in due course.

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3.

Except for good cause, each party is limited to the witnesses and exhibits disclosed

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in the joint proposed final pretrial order (Dkt. No. 601) less any excluded or limited by an order

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in limine. Materials or witnesses used solely for impeachment need not be disclosed and may be

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used, subject to the rules of evidence.

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The stipulations of facts set forth in the joint proposed final pretrial order are

approved and binding on all parties.
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As agreed, each side shall have TEN HOURS to examine witnesses (counting direct

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For the Northern District of California

United States District Court

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examination, cross-examination, re-direct examination, re-cross examination, etc.).

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Opening statements and closing arguments shall not count against the limit. If, despite being

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efficient, non-duplicative, and non-argumentative in the use of the allotted time, one side runs out

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of time and it would be a miscarriage of justice to hold that side to the limit, then more time will

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be allotted. As agreed, each side shall have 45 MINUTES for opening statements. The time

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allotted for closings shall be decided after the evidence is heard.

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6.

During adverse examination of a witness, the side proffering the witness shall not

communicate with said witness, except for resolving privilege issues.
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Each side shall come prepared with relevant discovery correspondence related to

discovery disputes raised during trial.
8.

The parties should limit themselves to one or two three-ring exhibit binders for use

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by the undersigned judge as explained at the pretrial conference. Exhibits should be clearly

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marked with privilege objections where appropriate.

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9.

The trial will proceed in an open courtroom accessible to the public to the

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maximum extent possible. The undersigned judge will entertain timely raised appropriate

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privilege objections on a case by case basis.

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The parties shall follow the Court's current Guidelines for Trial and Final Pretrial

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Conference, separately provided and available on the Internet at http://www.cand.uscourts.gov,

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which guidelines are incorporated as part of this order.

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IT IS SO ORDERED.

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Dated: November 15, 2013.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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