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)

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: [e-mail]) 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: