Wyckoff et al v. United States of America et al

Filing 288

ORDER RE: BRIEFING SCHEDULE ON SPOILATION MOTION (ts, COURT STAFF) (Filed on 7/9/2009)

Case3:07-cv-03600-SI Document287

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CHAVEZ & GERTLER LLP JONATHAN E. GERTLER (Bar No. 111531) JOSEPH R. IGELMUND (Bar No. 52493) 42 Miller Avenue Mill Valley, California 94941 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiffs WYCKOFF

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA IN JAMS SUSAN WYCKOFF, individually, and as Administratrix of the Estate of PETER WYCKOFF; ALEXANDER WYCKOFF by and through his Guardian ad Litem, SUSAN WYCKOFF, ) ) ) ) ) ) Plaintiffs ) ) vs. ) ) UNITED STATES OF AMERICA; DANIEL ) EARL SPERL and DOES 1 through 10, ) ) Defendants. ) ) CHARLIE EAP, heir at law of decedent Holly ) Annie Eap, ) ) Plaintiff ) ) vs. ) ) UNITED STATES OF AMERICA, DANIEL ) EARL SPERL, ) ) Defendants. ) ) ) Case No. C-07-3600 SI JAMS REF# 1110011990 STIPULATION AND [PROPOSED] ORDER RE EVIDENCE AND BRIEFING OF THE WYCKOFF PLAINTIFFS' MOTION FOR ALLEGED SPOLIATION OF EVIDENCE

Case No. C-07-2301 SI

STIPULATION AND [PROPOSED] ORDER RE SPOLIATION BRIEFING, Case No. C07-3600 SI and C07-2307

Case3:07-cv-03600-SI Document287

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WHEREAS, the motion of Plaintiffs Susan and Alexander Wyckoff ("the Wyckoffs") for sanctions for alleged spoliation of evidence by Defendant United States is set for hearing on August 14, 2009, with Plaintiffs' opening papers due on July 10, 2009; WHEREAS, on July 2, 2009, the Hon. Read Ambler issued Special Master Order No. 9, Granting in Part the Wyckoff Plaintiffs' Motion for Sanctions for Discovery Violations which, among other things, directs each Coast Guard agency counsel involved in the investigation of the December 2005 accident, and all U.S. Attorneys involved in the preparation of the Government's disclosures and discovery responses in this action, to "provide Plaintiffs with separate declarations ... specifically detailing the steps taken to preserve evidence relevant to the issues reasonably evident in this action, including interdiction of any document-destruction program and any ongoing erasures of e-mails, voice mails, and other electronically-recorded material" (Order p. 82, ¶ 2), and said declarations are to be provided "no later than July 10, 2009;" WHEREAS, the Wyckoff Plaintiffs, Plaintiff Charlie Eap, the United States and Defendant Daniel Sperl all wish and presently intend to preserve the existing briefing and hearing schedules in this matter; WHEREAS, Plaintiffs anticipate, and the United States does not dispute, that the declarations to be provided are likely to contain evidence relevant to Plaintiffs' spoliation claims and should be considered by the Court; and WHEREAS, the United States desires to use the deposition testimony to be given by witnesses Michael Walker and Karen Naulty on July 7 and 8 in support of its motion for summary judgment, which is also due to be filed on July 10, 2009; IT IS HEREBY STIPULATED by and between the Wyckoff and Eap Plaintiffs, on the one hand, and Defendants United States and Daniel Sperl on the other, through their respective attorneys of record, that: 1. The Wyckoff Plaintiffs may introduce the declarations ordered by Judge Ambler (Ret.), along with argument based on the evidence contained in the declarations, as part of their reply papers in support of their motion for sanctions for alleged spoliation

STIPULATION AND [PROPOSED] ORDER RE SPOLIATION BRIEFING, Case No. C07-3600 SI and C07-2307

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of evidence, due to be filed on July 31, 2009, notwithstanding that such evidence and argument may go beyond the issues addressed in Plaintiffs' moving papers; 2. Defendant United States and Daniel Sperl waive any objection to the presentation of the declarations and argument based on the content of the declarations in connection with the Wyckoff Plaintiffs' reply papers on the ground that such declarations and argument were raised for the first time in the Wyckoff Plaintiffs' reply papers; 3. Defendant United States may submit a sur-reply memorandum, not to exceed ten pages and limited solely to Plaintiffs' argument, if any, concerning the declarations referenced above, provided such sur-reply is filed on or before August 7, 2009; and 4. Defendant United States may, on or before July 17, 2009, file with the Court one supplemental declaration limited to relevant excerpts from the July 7 and 8 depositions of Mr. Stage and Ms. Walker in support of its motion for summary judgment.

SO STIPULATED.

Dated: July 7, 2009 By:

CHAVEZ & GERTLER LLP /s/ Jonathan E. Gertler Attorney for WYCKOFF Plaintiffs DAVIS LAW OFFICES By: /s/ Andrew J. Davis Attorney for Plaintiff CHARLIE EAP

Dated: July 7, 2009

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Dated: July 7, 2009 OFFICE OF THE UNITED STATES ATTORNEY By: /s/ James A. Scharf Attorney for Defendant USA

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STIPULATION AND [PROPOSED] ORDER RE SPOLIATION BRIEFING, Case No. C07-3600 SI and C07-2307

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Dated: July 7, 2009 By:

CESARI, WERNER & MORIARTY /s/ Kristina Velarde Attorney for Defendant Daniel Sperl

ORDER
IT IS SO ORDERED.

DATE: July __, 2009

__________________________________ The Honorable Susan Illston United States District Court Judge

STIPULATION AND [PROPOSED] ORDER RE SPOLIATION BRIEFING, Case No. C07-3600 SI and C07-2307

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