Lyon et al v. U.S. Immigration and Customs Enforcement et al

Filing 163

STIPULATION AND ORDER re 162 STIPULATION WITH PROPOSED ORDER Regarding Substitution of Defendants' Expert Witness filed by U.S. Department of Homeland Security, John Sandweg, Timothy S. Aitken, U.S. Immigration and Customs Enforcement, Jeh Charles Johnson (modified). Signed by Judge Edward M. Chen on 3/16/16. (bpf, COURT STAFF) (Filed on 3/16/2016)

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BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General
WILLIAM C. PEACHEY
Director, District Court Section
ELIZABETH J. STEVENS
Assistant Director, District Court Section
BRIAN C. WARD
KATHERINE J. SHINNERS
JENNIFER A. BOWEN
LAUREN C. BINGHAM
Trial Attorneys, Office of Immigration Litigation
U.S. Department of Justice – Civil Division
P.O. Box 868, Ben Franklin Station
Washington, D.C. 20044
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorneys for Defendants

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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AUDLEY BARRINGTON LYON, JR., et. al.,

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Plaintiffs,

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v.
UNITED STATES IMMIGRATION AND
CUSTOMS ENFORCEMENT, et. al.,
Defendants.

Case No.: 13-cv-05878 EMC

JOINT STIPULATION REGARDING
SUBSTITUTION OF DEFENDANTS’
EXPERT WITNESS; [PROPOSED]
ORDER
(modified)

CLASS ACTION

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The Parties to this action hereby agree to the following and seek an order permitting

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Defendants to substitute their expert witness and allow Plaintiffs to seek permissible discovery

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from the substitute expert. As good cause for this request, the Parties state the following:

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The deadline to complete expert discovery was January 11, 2016. See Dkt. No. 140. The

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parties had arranged for Plaintiffs to depose Defendants’ expert witness Michael Hackett on

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January 11, 2016. The week before the scheduled deposition, Mr. Hackett informed Defendants

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that he was dealing with a family medical crisis. Several days before the deposition, Mr. Hackett

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JOINT STIPULATION REGARDING SUBSTITUTION
OF DEFENDANTS’ EXPERT WITNESS
Case No.: 13-cv-05878 EMC

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informed Defendants that he had just learned that the medical issue was serious enough that he

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had to withdraw from the case. Defendants have confirmed with Mr. Hackett that he continues

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to be unavailable. Because Mr. Hackett was forced to withdraw based on a recently-discovered

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and very serious medical condition of an immediate family member for whom he continues to be

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the primary caretaker, good cause exists to extend expert discovery and allow Defendants to

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substitute experts.

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Defendants immediately proposed to Plaintiffs that the Parties jointly move to allow

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Defendants to designate a substitute expert, and seek to extend both expert discovery and the

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briefing schedule for the Parties’ cross-motions for summary judgment so that Plaintiffs would

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have sufficient time to depose the substitute expert before responding to Defendants’ Cross-

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Motion for Summary Judgment. Plaintiffs, however, did not want to disturb the briefing

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schedule and instead proposed that, if this case was not resolved at the summary judgment stage

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and Mr. Hackett remained unavailable, Plaintiffs would agree at that time that Defendants could

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proffer a substitute expert for trial as long as the substitute expert’s opinions did not expand upon

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or differ from Mr. Hackett’s opinions, did not rely on facts or materials that Mr. Hackett did not

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review, and that Plaintiffs were given an adequate opportunity to conduct expert discovery.

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The trial in this case is scheduled to begin on May 23, 2016. See Dkt. No. 96. To

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provide Plaintiffs with ample opportunity to conduct expert discovery, the Parties propose that

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(1) Defendants be permitted to substitute Mr. Richard Bryce for Mr. Michael Hackett as rebuttal

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expert in this case, (2) expert discovery be reopened solely for the purpose of allowing Plaintiffs

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to serve document requests on and depose Defendants’ substitute expert on or before April 22,

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2016, and (3) the motion in limine deadline for any challenge Plaintiffs may have to Defendants’

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proposed substitute expert be extended to May 5, 2016. will be discussed at the April 19, 2016
Pretrial Conference.

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This reopening of expert discovery until April 22, 2016, is limited to Defendants’
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substitute expert witness and will not affect any of the other current deadlines in this case.

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JOINT STIPULATION REGARDING SUBSTITUTION
OF DEFENDANTS’ EXPERT WITNESS
Case No.: 13-cv-05878 EMC

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Dated: March 15, 2016

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OFFICE OF IMMIGRATION LITIGATION,
CIVIL DIVISION
U.S. DEPARTMENT OF JUSTICE
BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General

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WILLIAM C. PEACHEY
Director, District Court Section

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ELIZABETH J. STEVENS
Assistant Director, District Court Section

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By: /s/ Brian C. Ward
BRIAN C. WARD
KATHERINE J. SHINNERS
JENNIFER A. BOWEN
LAUREN C. BINGHAM
Trial Attorneys, District Court Section
P.O Box 868, Ben Franklin Station
Washington, D.C. 20044
Telephone: [phone]
Email: [e-mail]

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Attorneys for Defendants

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Dated: March 15, 2016

By: /s/ Julia Harumi Mass
JULIA HARUMI MASS (SBN 189649)
ANGÉLICA SALCEDA (SBN 296152)
MICHAEL T. RISHER (SBN 191627)
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF NORTHERN CALIFORNIA
39 Drumm Street
San Francisco, CA 94111
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
ORRICK, HERRINGTON & SUTCLIFFE LLP
ROBERT P. VARIAN (SBN 107459)
CHARLES J. HA (pro hac vice)
DAVID KEENAN (pro hac vice)
JUDY KWAN (SBN 273930)
ALEXIS YEE-GARCIA (SBN 277204)

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JOINT STIPULATION REGARDING SUBSTITUTION
OF DEFENDANTS’ EXPERT WITNESS
Case No.: 13-cv-05878 EMC

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AMERICAN CIVIL LIBERTIES UNION
NATIONAL PRISON PROJECT
CARL TAKEI (SBN 256229)
915 15th Street N.W., 7th Floor
Washington, DC 20005
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

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MARC VAN DER HOUT (SBN 80778)
MEGAN SALLOMI (SBN 300580)
180 Sutter Street
San Francisco, CA 94104
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

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Attorneys for Plaintiffs

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I, Brian C. Ward, am the ECF user whose user ID and password are being used to file this
Stipulation. In accordance with Local Rule 5-1(i)(3), I hereby attest that the other signatories
listed here have concurred in the filing of this document.

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Dated: March 15, 2016
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By: /s/ Brian C. Ward
BRIAN C. WARD

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[PROPOSED] ORDER

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S

______________________________
ED
HONORABLE EDWARDRDER
SO O M. CHEN
T IS
United StatesIDistrict Judge IFIED
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M. Che
Edward
Judge
JOINT STIPULATION REGARDING SUBSTITUTION
OF
E R DEFENDANTS’ EXPERT WITNESS
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Case No.: 13-cv-05878 EMC
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AS MO

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March 16, 2016

Dated: ________________

UNIT
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PURSUANT TO STIPULATION, IT IS SO ORDERED. (as revised above)

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S T RIC

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CERTIFICATE OF SERVICE

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No. 3:13-cv-05878-EMC

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I hereby certify that on this 15th day of March 2016, a true and correct copy of the

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foregoing JOINT STIPULATION REGARDING SUBSTITUTION OF DEFENDANTS’
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EXPERT WITNESS was served with the Clerk of Court by using the CM/ECF system, which

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provided an electronic notice and electronic link of the same to all attorneys of record through

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the Court’s CM/ECF system.

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By: /s/ Brian C. Ward
BRIAN C. WARD
Trial Attorney, District Court Section
Office of Immigration Litigation
United States Department of Justice

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JOINT STIPULATION REGARDING SUBSTITUTION
OF DEFENDANTS’ EXPERT WITNESS
Case No.: 13-cv-05878 EMC

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