Borges v. City of Eureka et al

Filing 137

PRETRIAL ORDER NO. 1. Signed by Judge Yvonne Gonzalez Rogers on 5/25/17. (fs, COURT STAFF) (Filed on 5/25/2017)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 7 8 STEPHANY BORGES, Plaintiff, 9 v. 10 United States District Court Northern District of California 11 COUNTY OF HUMBOLDT, MICHAEL DOWNEY, TIM HERSHBERGER, TERRI BITTNER, TIM HAMMER AND DAVID SWIM 12 Defendants. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No.: 15-cv-00846 YGR Having considered the filings to date and the arguments and other submissions at the Pretrial Conference, held on May 19, 2017, for good cause shown the Court enters the following orders: 1. Trial Date and Schedule: The trial of this matter is confirmed for Monday, August 21, 2017, with an alternative date of August 28, 2017 should the case of Del Real v. City of Long Beach, 15-2831 pending in the Central District of California, proceed to trial. Counsel for plaintiff shall advise the Court and counsel of the status of the same by June 30, 2017. Proceedings shall begin each day at 8:00 a.m. in United States Federal Court, McKinleyville, California. Parties should be prepared to proceed with jury selection on Friday, August 18, 2017. 2. Evidence shall be presented to the jury generally on the following daily schedule, Monday through Friday, from: a. 8:30 a.m. to 10:15, then a fifteen minute break; b. 10:30 a.m. to 12:15, then a forty-five minute break for lunch; 1 c. 1:00 p.m. to 2:45, then a fifteen-minute break; and 2 d. 3:00 p.m. to 4:30. 3 Additional time may be scheduled for matters outside the presence of the jury as 4 necessary and determined by the Court. Sidebars are not permitted. Counsel 5 should be prepared to anticipate issues so that they may be addressed outside of 6 normal trial hours. In this regard, Counsel should also be prepared to reconvene 7 with the Court before or after the start of the jury day. 8 3. The Court sets the next pre-trial conference for July 14, 2017 at 8:00 a.m. 9 4. For trial filings, the caption in this case shall reflect only currently pending parties. 10 5. Standard Motions in Limine: The Court hereby orders that: (a) witnesses shall be United States District Court Northern District of California 11 excluded until testimony is completed; (b) there shall be no reference to or 12 evidence presented of settlement discussions, mediation, or insurance; and (c) there 13 shall be no reference to or evidence presented of wealth or lack thereof of any party 14 except in the punitive damage phase of a case, to the extent it exists. 15 A motion in limine refers “to any motion, whether made before or during trial, 16 to exclude anticipated prejudicial evidence before the evidence is actually offered.” 17 Luce v. United States, 469 U.S. 38, 40, n. 2 (1984). 18 6. Parties are ordered to admonish witnesses of the Court’s rulings. Failure to comply 19 with a ruling by the Court may result in sanctions, including without limitation the 20 striking of the witness’s entire testimony. 21 7. Trial Exchanges and Filings: 22 a. By June 16, 2017, the parties shall file and serve all motions in limine, all 23 discovery designations, all deposition designations, all video designations, 24 all audio designations including transcripts, exhibit lists, witness lists. 25 b. By June 16, 2017, the parties shall serve, but not file, jury instructions and proposed verdict forms. 26 27 28 c. Thereafter the parties shall meet and confer to resolve motions in limine to the extent possible, disputes regarding any of the designations, and disputes 2 1 over jury instructions and verdict forms. In addition, to the extent possible, 2 the parties shall attempt to enter stipulations regarding the admissibility of 3 exhibits. 4 d. By June 23, 2017, the parties shall file and serve oppositions to any 5 outstanding motions in limine; an omnibus proposed form of orders on 6 motions in limine by the proponent; cross-designations regarding discovery, 7 depositions, video footage, and audio (including transcripts). 8 e. By June 30, 2017, the parties shall file a joint motion including all disputes 9 regarding the above-referenced designations with a proposed form of order which tracks the motion and any evidence to allow the Court to rule. 11 United States District Court Northern District of California 10 f. By June 30, 2017, the parties shall file a joint set of jury instructions and 12 verdict forms. The jury instructions should include a chart which indicates 13 which of the instructions are joint versus disputed. With respect to the 14 latter, the joint set of jury instructions should include statements of 15 authorities and clearly delineate who is proffering the requested instruction 16 (or portion thereof). 17 g. By June 30, 2017, the parties shall file updated exhibit and, if necessary, 18 witness lists. With respect to the latter the witness list may not include new 19 and/or additional witnesses. The parties shall also file a joint preliminary 20 statement of the case to be used during voir dire. 21 h. After filing, the parties shall deliver to the Court by overnight mail, Trial 22 Readiness Binders in conformity with the Court's Standing Order Re: 23 Pretrial Instructions in Civil Cases § 3. 24 8. Procedural Stipulations: Attached hereto as Exhibit A is an outline of 25 stipulations. The parties shall file said document, to the extent acceptable, by June 26 30, 2017. 27 28 9. Jury Questionnaire: Attached hereto as Exhibit B is the Court’s Jury Questionnaire. The Court shall allow one (1) additional page of questions per 3 1 2 party. 10. Jurors and Peremptory Challenges: The Court will seat a total of eight (8) jurors 3 and no alternates. The Court sets the number of peremptory challenges at four (4). 4 Batson motions must be made in a timely fashion. Argument on the same shall be 5 made outside the presence of the jury panel. 6 11. Per the Court’s Standing Order § 3(f)(viii), the Court will give Model Instructions 7 1.1B, 1.2, 1.3 and/or 1.4, 1.6–1.12, 1.14–1.15, 1.19, and 3.1–3.3 from the Manual 8 of Model Civil Jury Instructions for the Ninth Circuit (2007 Edition). 9 12. Opening Statements: Parties must meet and confer to exchange any visuals, graphics or exhibits to be used in opening statements. Unless otherwise agreed, the 11 United States District Court Northern District of California 10 exchange must occur no later than the close of business on the Wednesday before 12 trial. Any objections not resolved must be filed in writing by the Thursday before 13 trial. The parties shall be available by telephone on the Friday before trial to 14 discuss the issues raised with the Court. The parties are reminded that the purpose 15 of an Opening Statement is not to argue the facts but to provide the jurors with an 16 outline of what each side expects the evidence will show. 17 13. Expert Disclosures/Fed. R. Civ. P. 68 Offers: Counsel shall lodge with the Court 18 on the first day of trial two copies of all expert disclosures, including any 19 supplements, as well as all offers of judgment made under Fed. R. Civ. P. 68. 20 14. Doe Defendants: All Doe Defendants will be deemed dismissed once the jury, or 21 22 first witness, is sworn, whichever occurs first. 15. Depositions to be Used at Trial: Any party intending to use a deposition 23 transcript at trial for any purpose shall lodge the signed original (or a 24 certified/stipulated copy if, for any reason, the original is not available) for use by 25 the Court and shall have extra copies available for use by him/herself and the 26 witness. All other parties are expected to have their own copies available. The 27 parties shall each prepare and provide an index of the lodged transcripts and shall 28 review the same with the courtroom deputy upon lodging the transcripts. Before 4 1 each trial day, counsel shall confer with the courtroom deputy and identify which 2 of the transcripts may be used that day. 3 16. Video Depositions at Trial: A video deposition may only be shown after the 4 designations, counter-designation, and objections are resolved. A transcript shall 5 be provided of the portions played to the jury. The court reporter shall be relieved 6 of her duties to transcribe that portion of the trial. In lieu of the court reporter’s 7 transcription, and to the extent the parties deem it necessary to their appellate 8 record, the proponent shall provide a transcript of the same to the court reporter on 9 or before the date played. The Court Reporter shall attach it to the transcript. 10 17. Witnesses at Trial: The party presenting evidence shall give the other party 24 United States District Court Northern District of California 11 hours written notice of the witnesses to be called unless otherwise agreed upon by 12 the parties themselves. The parties are admonished that use of trial time is critical 13 given the limited resources of the Court. All parties must have witnesses ready and 14 available to testify. If the party presenting evidence does not have a witness ready 15 to be called once a prior witness steps down, that party may be deemed to have 16 rested its case. Witnesses may be taken out of order upon stipulation or with leave 17 of Court provided that the circumstances giving rise to such an accommodation are 18 promptly called to the attention of opposing counsel and the Court. 19 18. Objections: There shall be no “speaking objections,” and no rebuttal unless 20 requested by the Court, in which case it shall be brief – e.g., “hearsay,” and if a 21 rebuttal requested, “not offered for the truth.” If either counsel needs to make a 22 better record, he/she may do so when the jury is out at the next break. 23 24 25 26 27 28 19. Jury Questions: The Court allows written jury questions which it will share with counsel at the break(s) and then place in the record. 20. Punitive Damages: If the jury will be asked to consider punitive damages, the following additional orders apply: a. Defendant shall have all relevant financial data in Court in a sealed envelope once trial begins; 5 b. Counsel shall have all witnesses who will be called to testify regarding the 1 2 financial status of the relevant party (e.g., to authenticate relevant 3 documents, etc.) available on one (1) hour notice once jury deliberations 4 begin; and c. The parties shall meet and confer regarding written stipulations to 5 streamline this phase of the case. 6 21. Requests for Transcripts: The parties shall advise the Court at the next pretrial 7 conference whether daily transcripts will be requested during the trial. 8 22. Further Settlement Conference/Mediation: The parties shall continue to engage 10 in good faith settlement discussions. Counsel shall promptly notify the Court by 11 United States District Court Northern District of California 9 phone and email (for after hours, use: of any 12 settlement. The notification shall indicate what further steps need to be taken to 13 finalize the settlement. Unless the Court receives notice of settlement by 4:00 p.m. 14 on the Friday prior to the Monday trial, jury costs will be assessed where the parties 15 do not proceed to trial as scheduled. Civ. L.R. 40-1. Parties are advised that the 16 trial and all trial-related dates will not be vacated until a formal Notice of 17 Settlement is filed. 18 23. Trial Decorum and Procedure: Counsel, parties, and witnesses are expected to 19 conduct themselves at all times – on or off the record and whether or not in the 20 presence of a jury – in a professional and courteous manner during trial. Do NOT 21 approach other parties’ witnesses without permission. You may approach your 22 own non-hostile witnesses without permission. 24. Failure to Comply: Failure to comply with the obligations set forth in this order 23 24 will result in sanctions appropriate to the gravity of the failure, including, but not 25 limited to monetary fines and/or terminating sanctions. 26 // 27 // 28 6 1 2 3 4 IT IS SO ORDERED. DATED: May 25, 2017 ______________________________________ YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE 5 6 7 8 9 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 Exhibit A 1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 7 8 STEPHANY BORGES, Plaintiff, 9 10 United States District Court Northern District of California 11 v. Case No.: 15-cv-00846 YGR PROCEDURAL STIPULATIONS (EXHIBIT A TO PRETRIAL ORDER) COUNTY OF HUMBOLDT, MICHAEL DOWNEY, TIM HERSHBERGER, TERRI BITTNER, TIM HAMMER AND DAVID SWIM 12 Defendants. 13 14 PLEASE INITIAL AND SIGN as acceptable: 15 It is stipulated that each of the jurors will be deemed present, upon reconvening after each 16 adjournment or recess, unless the contrary is noted for the record. 17 For the Plaintiff ______________ For the Defendant _____________ 18 19 It is stipulated that the Jury Instructions and the Exhibits may go into the Jury Room during 20 deliberations. 21 For the Plaintiff ______________ For the Defendant _____________ 22 23 It is stipulated that the parties need not be present when, during jury deliberations, the jurors are 24 excused for lunch, return for lunch, and/or are discharged in the evening and resume in the 25 morning. 26 For the Plaintiff ______________ For the Defendant _______________ 27 28 It is stipulated that, during jury deliberations, the jury may recess without further admonition and 1 without assembling in the jury box, and that they may resume their deliberations upon the Deputy 2 Clerk’s determination that all jurors are present. 3 For the Plaintiff ______________ For the Defendant _____________ 4 5 In the absence if the trial judge, any judge of this court may receive the verdict. For the Plaintiff ______________ 6 For the Defendant ________________ 7 (Party Name) ______________________ (Party Name) _________________________ 10 __________________________________ ________________________________ 11 Signature (Plaintiff’s Attorney) 8 United States District Court Northern District of California 9 Signature (Defense Attorney) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27   28 2               Exhibit B JUROR QUESTIONNAIRE  Please PRINT your answers  To Be Completed by Jurors called to the Courtroom of the Hon. Yvonne Gonzalez Rogers for the Trial of:  Borges v. County of Humboldt, et al.        Case Number:  15‐cv‐00846  YGR  Name:                Residence:           Years:     Education:  Highest Grade Completed:        Birthplace:             Years:             Degrees:             College/Vocational Schools attended:           Areas of Study:                                 Current Occupation/Position:               Length of Service:         Employer:                                               Prior Occupation/Position: _____________________________________  Length of Service:         Employer:                 Describe Any Supervisory Roles:               Age:       Prior Residence:                              Describe Any Supervisory Roles:                         Current Status (Circle):  Single (living alone/with others)     Married      Separated     Divorced      Widowed  Occupation & Employer of Adults Living in the Same Household:                                          Children:  Age(s)            Occupation(s) if employed:                                                   □  NO □  IF NO, do you use it regularly at work or home? YES □ NO □   Do You OR any CLOSE Family/Friends have military Service or Law Enforcement Training? YES □ NO □  Is English your first language?  YES  Have You Ever Served on a Jury?   Circle:  YES    NO      Number of times:     Circle:     State Court   Federal Court    Both    □  NO □  Did each jury reach a verdict?   YES  Circle:  Civil Case         Criminal Case         Both  □  NO □     Have you ever served as Foreperson?   YES  [CONTINUED ON NEXT PAGE]  1      Date(s) of Service:       □  NO □    Do You OR any CLOSE Family/Friends [case specific]....?  YES  If yes, describe:                                       □  NO □    Do You OR any CLOSE Family/Friends [case specific]....?  YES  If yes, describe:                   □  NO □    Are You OR any CLOSE Family/Friends [case specific]....?  YES  If yes, describe:                                                       □  NO □     Have You Ever Been Convicted of a Felony? YES  If yes, provide basic details:             □  NO □     Have You Ever Testified in any Court Proceeding?  YES  If yes, describe:                 Circle If You Have STRONG opinions on any of the following institutions/topics:     [case specific]                   The following is a list of potential witnesses and persons affiliated with the case.  CIRCLE any names of those  who you know or with whom you are personally familiar:  Individuals                              Individuals Cont’d.        Entities                        I DECLARE UNDER PENALTY OF PERJURY THAT THE FOREGOING INFORMATION IS TRUE AND CORRECT.  SIGNATURE:                 2    DATE:             

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