Whitley et al v. National Railroad Passenger Corporation

Filing 63

AMENDED PRETRIAL ORDER. Signed by Magistrate Judge Jacqueline Scott Corley on 3/3/2014. (ahm, COURT STAFF) (Filed on 3/3/2014) Modified on 3/3/2014 (ahm, COURT STAFF).

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DERRELL WHITLEY, et al., Case No. 12-cv-01781-JSC Plaintiffs. 8 v. PRETRIAL ORDER 9 NATIONAL RAILROAD PASSENGER CORPORATION, 11 United States District Court Northern District of California 10 Defendant. 12 Following the Further Case Management Conference held on February 27, 2014, IT IS 13 14 HEREBY ORDERED THAT: 15 I. CASE MANAGEMENT SCHEDULE 16 Deadline for Settlement Conference with Judge James May 2, 2014 17 Fact Discovery Cut-Off: June 30, 2014 18 Deadline for Hearing Dispositive Motions: July 31, 2014 19 II. A. 20 21 B. III. The Court is expecting the length of the trial to not exceed 10 court days. PRETRIAL CONFERENCE A Final Pretrial Conference shall be held on August 21, 2014, at 2:00 p.m., in Courtroom F, 24 25 Jury trial will begin on September 8, 2014, at 8:30 a.m., in Courtroom F, 15th Floor, U.S. District Court, 450 Golden Gate, San Francisco, California. 22 23 TRIAL DATE 15th Floor. Lead trial counsel for each party shall attend. A. 26 27 the following: 28 // At least seven days prior to date of the Final Pretrial Conference the parties shall do 1. 1 In lieu of preparing a Joint Pretrial Conference Statement, the parties shall meet and confer in person, and then prepare and file a jointly signed Proposed Final Pretrial Order 3 that contains: (a) a brief description of the substance of claims and defenses which remain to be 4 decided; (b) a statement of all relief sought; (c) all stipulated facts; (d) a joint exhibit list in 5 numerical order, including a brief description of the exhibit and Bates numbers, a blank column for 6 when it will be offered into evidence, a blank column for when it may be received into evidence, 7 and a blank column for any limitations on its use; and (e) each party’s separate witness list for its 8 case-in-chief witnesses (including those appearing by deposition), including, for all such witnesses 9 (other than party plaintiffs or defendants), a short statement of the substance of his/her testimony 10 and, separately, what, if any, non-cumulative testimony the witness will offer. For each witness, 11 United States District Court Northern District of California 2 state an hour/minute time estimate for the direct examination (only). Items (d) and (e) should be 12 submitted as appendices to the proposed order. The proposed order should also state which issues, if 13 any, are for the Court to decide, rather than the jury. 2. 14 File a joint set of proposed instructions on substantive issues of law arranged 15 in a logical sequence. If undisputed, an instruction shall be identified as “Stipulated Instruction No. 16 ____ Re ___________,” with the blanks filled in as appropriate. If disputed, each version of the 17 instruction shall be inserted together, back to back, in their logical place in the overall sequence. 18 Each such disputed instruction shall be identified as, for example, “Disputed Instruction No. ____ 19 Re ____________ Offered by _________________,” with the blanks filled in as appropriate. All 20 disputed versions of the same basic instruction shall bear the same number. Any modifications to a 21 form instruction must be plainly identified. If a party does not have a counter version and simply 22 contends that no such instruction in any version should be given, then that party should so state (and 23 explain why) on a separate page inserted in lieu of an alternate version. With respect to form 24 preliminary instructions, general instructions, or concluding instructions, please simply cite to the 25 numbers of the requested instructions in the current edition of the Ninth Circuit Model Jury 26 Instructions. Other than citing the numbers, the parties shall not include preliminary, general, or 27 concluding instructions in the packet. 28 // 2 3. 1 2 File a separate memorandum of law in support of each party’s disputed instructions, if any, organized by instruction number. 3 4. 4 separate requests. 5 5. File trial briefs on any controlling issues of law. 6 6. File proposed verdict forms, joint or separate. 7 7. File and serve any objections to exhibits. 8 8. File a joint simplified Statement of the Case to be read to the jury during voir 9 10 dire as part of the proposed jury instructions. Unless the case is extremely complex, this statement should not exceed one page. B. 11 United States District Court Northern District of California File a joint set of proposed voir dire questions supplemented as necessary by Any motions in limine shall be submitted as follows: at least twenty (20) calendar 12 days before the conference, the moving party shall serve, but not file, the opening brief. At least ten 13 (10) calendar days before the conference, the responding party shall serve the opposition. There will 14 be no reply. When the oppositions are received, the moving party should collate the motion and the 15 opposition together, back-to-back, and then file the paired sets at least seven (7) calendar days 16 before the conference. Each motion should be presented in a separate memorandum and properly 17 identified, for example, “Plaintiff’s Motion in Limine No. 1 to Exclude . . . .” Each party is limited 18 to bringing five motions in limine. The parties are encouraged to stipulate where possible, for 19 example, as to the exclusion of witnesses from the courtroom. Each motion should address a single, 20 separate topic, and contain no more than seven pages of briefing per side. C. 21 Hard-copy courtesy copies of the above documents shall be delivered by NOON the 22 day after filing. The Joint Proposed Final Pretrial Order, jury instructions, and verdict form shall be 23 submitted via e-mail as attachments to JSCpo@cand.uscourts.gov. The Court requests that all hard- 24 copy submissions be three-hole-punched. 25 IV. 26 PRETRIAL ARRANGEMENTS A. Should a daily transcript and/or real-time reporting be desired, the parties shall make 27 arrangements with Debra Campbell, Supervisor of the Court Reporting Services, at (415) 522-2079, 28 at least ten (10) calendar days prior to the trial date. 3 1 B. During trial, counsel may wish to use overhead projectors, laser-disk/computer 2 graphics, poster blow-ups, models, or specimens of devices. Equipment should be shared by all 3 counsel to the maximum extent possible. The Court provides no equipment other than an easel. The 4 United States Marshal requires a court order to allow equipment into the courthouse. For electronic 5 equipment, parties should be prepared to maintain the equipment or have a technician handy at all 6 times. The parties shall tape extension cords to the carpet for safety. The parties may work with the 7 deputy clerk, Ada Means (415-522-2015), on all courtroom-layout issues. 8 9 SCHEDULING Trial will be conducted from 8:30 a.m. to 2:30 or 3:00 p.m., depending on the availability of witnesses, Monday through Friday. Counsel must arrive by 8:15 a.m., or earlier as needed, for any 11 United States District Court Northern District of California 10 matters to be heard out of the presence of the jury. The jury will be called at 8:30 a.m. 12 13 THE JURY In civil cases, there are no alternate jurors and the jury is selected as follows: 14 Eighteen to twenty jurors are called to fill the jury box and the row in front of the bar, and are given 15 numbers (1 through 18). The remaining potential jurors will be seated in the public benches. 16 Hardship excuses will usually be considered at this point. The Court will then ask questions of those 17 in the box and in the front of the bar. Counsel may then conduct a limited voir dire. Challenges for 18 cause will then be addressed out of the presence of the potential jurors. The Court will consider 19 whether to fill in the seats of the stricken jurors. If so, questions will be asked of the additional 20 jurors and cause motions as to them will be considered. After a short recess, each side may exercise 21 its allotment of peremptory challenges out of the presence of the potential jurors. The eight (or such 22 other size as will constitute the jury) surviving the challenge process with the lowest numbers 23 become the final jury. For example, if the plaintiff strikes 1, 5, and 7 and the defendant strikes 2, 4, 24 and 9, then 3, 6, 8, 10, 11, 12, 13, and 14 become the final jury. If more (or fewer) than eight jurors 25 are to be seated, then the starting number will be adjusted. So too if more than a total of six 26 peremptories are allowed. Once the jury selection is completed, the jurors’ names will be read again 27 and they will be seated in the jury box and sworn. The Court may alter this procedure in its 28 discretion and after consultation with the parties. 4 WITNESSES 1 2 At the close of each trial day, all counsel shall exchange a list of witnesses for the 3 next two full court days and the exhibits that will be used during direct examination (other than for 4 impeachment of an adverse witness). Within 24 hours of such notice, all other counsel shall provide 5 any objections to such exhibits and shall provide a list of all exhibits to be used with the same 6 witness on cross-examination (other than for impeachment). The first notice shall be exchanged 7 prior to the first day of trial. All such notices shall be provided in writing. EXHIBITS 8 9 A. Prior to the Final Pretrial Conference, counsel must meet and confer in person to consider all exhibit numbers and objections and to eliminate duplicate exhibits and confusion over 11 United States District Court Northern District of California 10 the precise exhibit. 12 B. Use numbers only, not letters, for exhibits, preferably the same numbers as were 13 used in depositions. Blocks of numbers should be assigned to fit the need of the case (e.g., Plaintiff 14 has 1 to 100, Defendant A has 101 to 200, Defendant B has 201 to 300, etc.). A single exhibit 15 should be marked only once. If the plaintiff has marked an exhibit, then the defendant should not re- 16 mark the exact document with another number. Different versions of the same document, e.g., a 17 copy with additional handwriting, must be treated as different exhibits with different numbers. To 18 avoid any party claiming “ownership” of an exhibit, all exhibits shall be marked and referred to as 19 “Trial Exhibit No. _____,” not as “Plaintiff’s Exhibit” or “Defendant’s Exhibit.” 20 C. The exhibit tag shall be in the following form: 21 22 23 24 25 26 27 28 5 1 Counsel preferably will make the tag up in a color that will stand out (yet still allow for 2 photocopying), but that is not essential. Place the tag on or near the lower right-hand corner or, if a 3 photograph, on the back. Counsel should fill in the tag but leave the last two spaces blank. The 4 parties must jointly prepare a single set of all trial exhibits that will be the official record set to be 5 used with the witnesses and on appeal. Each exhibit must be tagged, three-hole-punched, separated 6 with a label divider identifying the exhibit number, and placed in 3-ring binders. Spine labels 7 should indicate the numbers of the exhibits that are in the binders. Each set of exhibit binders 8 should be marked as “Original.” Deposit the exhibits with the deputy clerk seven (7) days before 9 the Pretrial Conference. 10 D. Counsel must consult with each other and with the deputy clerk at the end of each United States District Court Northern District of California 11 trial day and compare notes as to which exhibits are in evidence and any limitations thereon. If there 12 are any differences, counsel should bring them promptly to the Court’s attention. 13 E. In addition to the official record exhibits, two sets of bench binders containing copies 14 of the exhibits must be provided to the Court seven (7) days before the Pretrial Conference, one 15 should be marked as “Chambers Copies” and the other as “Clerk’s Copies.” Each exhibit must be 16 separated with a label divider identifying the exhibit number. (An exhibit tag is unnecessary for the 17 bench set.) Spine labels should indicate the numbers of the exhibits that are in the binders. 18 19 20 F. Before the closing arguments, counsel must confer with the deputy clerk to make sure the exhibits in evidence are in good order. G. Exhibit notebooks for the jury will not be permitted without prior permission from 21 the Court. Publication must be by poster blow-up, overhead projection, or such other method as is 22 allowed in the circumstances. It is permissible to highlight, circle or underscore in the enlargements 23 as long as it is clear that it was not on the original. 24 25 CHARGING CONFERENCE As the trial progresses and the evidence is heard, the Court will fashion a comprehensive set 26 of jury instructions to cover all issues actually being tried. Prior to the close of the evidence, the 27 Court will provide a draft final charge to the parties. After a reasonable period for review, one or 28 more charging conferences will be held at which each party may object to any passage, ask for 6 1 modifications, or ask for additions. Any instruction request must be renewed specifically at the 2 conference or it will be deemed waived, whether or not it was requested prior to trial. If, however, a 3 party still wishes to request an omitted instruction after reviewing the Court’s draft, then it must 4 affirmatively re-request it at the charging conference in order to give the Court a fair opportunity to 5 correct any error. Otherwise, as stated, the request will be deemed abandoned or waived. 6 7 8 9 IT IS SO ORDERED. Dated: March 3, 2014 ______________________________________ JACQUELINE SCOTT CORLEY United States Magistrate Judge 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7

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