Hawthorne v. Ayers et al

Filing 79

CASE MANAGEMENT SCHEDULING ORDER: ORDER LIFTING STAY, ORDER REFERRING CASE to Magistrate Judge Nathanael Cousins for Mediation/Settlement. Discovery due by 2/29/2012. Jury Trial set for 5/21/2012 07:30 AM in Courtroom 9, 19th Floor, San Francisco be fore Hon. William Alsup. Motions due by 4/5/2012. Pretrial Conference set for 5/14/2012 02:00 PM in Courtroom 9, 19th Floor, San Francisco before Hon. William Alsup. Signed by Judge William Alsup on 8/11/2011. (whasec, COURT STAFF) (Filed on 8/12/2011)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7
FOR THE NORTHERN DISTRICT OF CALIFORNIA

8
9
United States District Court
For the Northern District of California

10

CARLOS A. HAWTHORNE,
Plaintiff,

11
v.

12
13

No. C 08-01473 WHA

CASE MANAGEMENT ORDER,
ORDER LIFTING STAY, AND
REFERENCE TO
MAGISTRATE JUDGE FOR
MEDIATION/SETTLEMENT

R. AYERS, JR., et al.,
Defendants.

14

/
15
After a case management conference, the Court enters the following order pursuant to

16
17

Rule 16 of the Federal Rules of Civil Procedure (“FRCP”) and Civil Local Rule 16-10:

18

1.

Stay is LIFTED.

19

2.

All initial disclosures under FRCP 26 must be completed by AUGUST 19, 2011, on pain

20

of preclusion under FRCP 37(c), including full and faithful compliance with FRCP

21

26(a)(1)(A)(iii).

22

3.

Leave to add any new parties or pleading amendments must be sought by
SEPTEMBER 30, 2011.

23
24

4.

The non-expert discovery cut-off date shall be FEBRUARY 29, 2012.

25

5.

The last date for designation of expert testimony and disclosure of full expert reports

26

under FRCP 26(a)(2) as to any issue on which a party has the burden of proof

27

(“opening reports”) shall be FEBRUARY 29, 2012. Within FOURTEEN CALENDAR DAYS

28

of said deadline, all other parties must disclose any expert reports on the same issue

1

(“opposition reports”). Within SEVEN CALENDAR DAYS thereafter, the party with the

2

burden of proof must disclose any reply reports rebutting specific material in opposition

3

reports. Reply reports must be limited to true rebuttal and should be very brief. They

4

should not add new material that should have been placed in the opening report and the

5

reply material will ordinarily be reserved for the rebuttal or sur-rebuttal phase of the

6

trial. If the party with the burden of proof neglects to make a timely disclosure, the

7

other side, if it wishes to put in expert evidence on the same issue anyway, must disclose

8

its expert report within the fourteen-day period. In that event, the party with the burden

9

of proof on the issue may then file a reply expert report within the seven-day period,

United States District Court
For the Northern District of California

10

subject to possible exclusion for “sandbagging” and, at all events, any such reply

11

material may be presented at trial only after, if at all, the other side actually presents

12

expert testimony to which the reply is responsive. The cutoff for all expert discovery

13

shall be FOURTEEN CALENDAR DAYS after the deadline for reply reports. In aid of

14

preparing an opposition or reply report, a responding party may depose the adverse

15

expert sufficiently before the deadline for the opposition or reply report so as to use the

16

testimony in preparing the response. Experts must make themselves readily available

17

for such depositions. Alternatively, the responding party can elect to depose the expert

18

later in the expert-discovery period. An expert, however, may be deposed only once

19

unless the expert is used for different opening and/or opposition reports, in which case

20

the expert may be deposed independently on the subject matter of each report. At least

21

28 CALENDAR DAYS before the due date for opening reports, each party shall serve a list

22

of issues on which it will offer any expert testimony in its case-in-chief (including from

23

non-retained experts). This is so that all parties will be timely able to obtain

24

counter-experts on the listed issues and to facilitate the timely completeness of all expert

25

reports. Failure to so disclose may result in preclusion.

26

6.

As to damages studies, the cut-off date for past damages will be as of the expert report

27

(or such earlier date as the expert may select). In addition, the experts may try to project

28

future damages (i.e., after the cut-off date) if the substantive standards for future
2

1

damages can be met. With timely leave of Court or by written stipulation, the experts

2

may update their reports (with supplemental reports) to a date closer to the time of trial.

3

7.

At trial, the direct testimony of experts will be limited to the matters disclosed in their
reports. Omitted material may not ordinarily be added on direct examination.

5

This means the reports must be complete and sufficiently detailed.

6

Illustrative animations, diagrams, charts and models may be used on direct examination

7

only if they were part of the expert’s report, with the exception of simple drawings and

8

tabulations that plainly illustrate what is already in the report, which can be drawn by

9

the witness at trial or otherwise shown to the jury. If cross-examination fairly opens the

10
United States District Court
For the Northern District of California

4

door, however, an expert may go beyond the written report on cross-examination and/or

11

redirect examination. By written stipulation, of course, all sides may relax these

12

requirements. For trial, an expert must learn and testify to the full amount of billing and

13

unbilled time by him or his firm on the engagement.

14

8.

To head off a recurring problem, experts lacking percipient knowledge should avoid

15

vouching for the credibility of witnesses, i.e., whose version of the facts in dispute is

16

correct. This means that they may not, for example, testify that based upon a review of

17

fact depositions and other material supplied by counsel, a police officer did (or did not)

18

violate standards. Rather, the expert should be asked for his or her opinion based —

19

explicitly — upon an assumed fact scenario. This will make clear that the witness is not

20

attempting to make credibility and fact findings and thereby to invade the province of

21

the jury. Of course, a qualified expert can testify to relevant customs, usages, practices,

22

recognized standards of conduct, and other specialized matters beyond the ken of a lay

23

jury. This subject is addressed further in the trial guidelines referenced in paragraph 16

24

below.

25

9.

Counsel need not request a motion hearing date and may notice non-discovery motions

26

for any Thursday (excepting holidays) at 8:00 a.m. The Court sometimes rules on the

27

papers, issuing a written order and vacating the hearing. If a written request for oral

28

argument is filed before a ruling, stating that a lawyer of four or fewer years out of law
3

1

school will conduct the oral argument or at least the lion’s share, then the Court will

2

hear oral argument, believing that young lawyers need more opportunities for

3

appearances than they usually receive. Discovery motions should be as per the

4

supplemental order referenced in paragraph 16 and shall be expedited.

5

10.

The last date to file dispositive motions shall be APRIL 5, 2012. No dispositive motions

6

shall be heard more than 35 days after this deadline, i.e., if any party waits until the last

7

day to file, then the parties must adhere to the 35-day track in order to avoid pressure on

8

the trial date.

9

11.

The FINAL PRETRIAL CONFERENCE shall be at 2:00 P.M. on MAY 14, 2012. Although

United States District Court
For the Northern District of California

10

the Court encourages argument and participation by younger attorneys, lead trial counsel

11

must attend the final pretrial conference. For the form of submissions for the final

12

pretrial conference and trial, please see paragraph 16 below.

13

12.

A JURY TRIAL shall begin on MAY 21, 2012, at 7:30 A.M., in Courtroom 9, 19th Floor,

14

450 Golden Gate Avenue, San Francisco, California, 94102. The trial schedule and time

15

limits shall be set at the final pretrial conference. Although almost all trials proceed on

16

the date scheduled, it may be necessary on occasion for a case to trail, meaning the trial

17

may commence a few days or even a few weeks after the date stated above, due to

18

calendar congestion and the need to give priority to criminal trials. Counsel and the

19

parties should plan accordingly, including advising witnesses.

20

13.

Counsel may not stipulate around the foregoing dates without Court approval.

21

14.

While the Court encourages the parties to engage in settlement discussions, please do

22

not ask for any extensions on the ground of settlement discussions or on the ground that

23

the parties experienced delays in scheduling settlement conferences, mediation or ENE.

24

The parties should proceed to prepare their cases for trial. No continuance (even if

25

stipulated) shall be granted on the ground of incomplete preparation without competent

26

and detailed declarations setting forth good cause.

27
28

15.

To avoid any misunderstanding with respect to the final pretrial conference and trial, the
Court wishes to emphasize that all filings and appearances must be made — on pain of
4

1

dismissal, default or other sanction — unless and until a dismissal fully resolving the

2

case is received. It will not be enough to inform the clerk that a settlement in principle

3

has been reached or to lodge a partially executed settlement agreement or to lodge a

4

fully executed agreement (or dismissal) that resolves less than the entire case.

5

Where, however, a fully-executed settlement agreement clearly and fully disposing of

6

the entire case is lodged reasonably in advance of the pretrial conference or trial and

7

only a ministerial act remains, the Court will arrange a telephone conference to work out

8

an alternate procedure pending a formal dismissal.

9

16.

If you have not already done so, please read and follow the “Supplemental Order to

United States District Court
For the Northern District of California

10

Order Setting Initial Case Management Conference in Civil Cases Before Judge William

11

Alsup” and other orders issued by the Clerk’s office when this action was commenced.

12

Among other things, the supplemental order explains when submissions are to go to the

13

Clerk’s Office (the general rule) versus when submissions may go directly to chambers

14

(rarely). With respect to the final pretrial conference and trial, please read and follow

15

the “Guidelines For Trial and Final Pretrial Conference in Civil Jury Cases Before The

16

Honorable William Alsup.” All orders and guidelines referenced in the paragraph are

17

available on the district court’s website at http://www.cand.uscourts.gov. The website

18

also includes other guidelines for attorney’s fees motions and the necessary form of

19

attorney time records for cases before Judge Alsup. If you do not have access to the

20

Internet, you may contact Deputy Clerk Dawn K. Toland at [phone] to learn how

21

to pick up a hard copy.

22
23

17.

All pretrial disclosures under FRCP 26(a)(3) and objections required by FRCP 26(a)(3)
must be made on the schedule established by said rule.

24
25
26
27
28
5

1
2

18.

This matter is hereby REFERRED to MAGISTRATE JUDGE NATHANAEL COUSINS for
MEDIATION/SETTLEMENT.

3
4

IT IS SO ORDERED.

5
6

Dated: August 11, 2011.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

7
8
9
United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6