Masters v. County of Santa Clara et al

Filing 40

STIPULATION AND ORDER GRANTING REQUEST FOR ORDER MODIFYING CASE MANAGEMENT CONFERENCE ORDER re 39 Stipulation, filed by Deputy Rogers, Deputy Anderson, Deputy Eng, Santa Clara County Sheriff's Department, County of Santa Clara. Signed by Judge Patricia V. Trumbull on July 21, 2010. (pvtlc2, COURT STAFF) (Filed on 7/21/2010)

Masters v. County of Santa Clara et al

Doc. 40

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M IG U E L M Á R Q U E Z C o u n ty C o u n s e l C o u n ty o f S a n ta C la r a S a n Jo s e , C a l i fo r n i a

MIGUEL MÁRQUEZ, County Counsel (S.B. #184621) DAVID M. ROLLO, Deputy County Counsel (S.B. #111998) OFFICE OF THE COUNTY COUNSEL 70 West Hedding, East Wing, 9th Floor San Jose, California 95110-1770 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants COUNTY OF SANTA CLARA, SANTA CLARA COUNTY SHERIFF'S DEPARTMENT, DEPUTY ENG, DEPUTY ANDERSON AND DEPUTY ROGERS UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA (SAN JOSE)

NICK MASTERS, Plaintiff, v. COUNTY OF SANTA CLARA, et al., Defendants.

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No. 08-02473 PVT STIPULATION AND REQUEST FOR ORDER MODIFYING CASE MANAGEMENT ORDER; DECLARATION OF DAVID M. ROLLO

COME NOW THE PARTIES who have stipulated to the following request for an Order modifying the Case Management schedule and order as follows: CURRENT SCHEDULE/ORDER Expert Discovery Cutoff......August 13, 2010 Final Pretrial Conference.....August 24, 2010 Jury Trial..............................September 20, 2010 PROPOSED NEW SCHEDULE/ORDER New Fact Discovery Cutoff Regarding Plaintiff's Damages Claims ONLY...............December 17, 2010 Expert Discovery Cutoff............................February 18, 2011 Final Pretrial Conference.....................March 8, 2011 Jury Trial.......................March 28, 2011 // //
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This Stipulation and proposed Order is accompanied by the Declaration of David M. Rollo attached hereto. IT IS SO STIPULATED. Dated: July 20, 2010 By: /S/ B. ROBERT ALLARD, Esq. Attorney for Plaintiff

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I hereby attest that I have on file the holograph signature for the signature indicated by a "conformed" signature (/S/) within this e-filed document. Dated: July 20, 2010 Respectfully submitted, MIGUEL MÁRQUEZ County Counsel /S/ DAVID M. ROLLO Deputy County Counsel

ORDER The Court has considered the Stipulation to modify the case schedule and Case Management Order. The Court makes the following Order pursuant to the Stipulation and modifies the Case Management Order as follows: Fact Discovery Cutoff-Regarding Plaintiff's Damages ONLY. . . . . . . . . . . . December 17, 2010 Expert Discovery Cutoff. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . February 18, 2011 Final Pretrial Conference. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . March 8, 2011 Jury Trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . March 28, 2011 PURSUANT TO STIPULATION, IT IS SO ORDERED.

July 21, 2010 Date: _____________________

_____________________________________ MAGISTRATE PATRICIA V. TRUMBULL United States District Court Judge

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DECLARATION OF DAVID M. ROLLO IN SUPPORT OF STIPULATION AND REQUEST FOR ORDER I, David M. Rollo, declare as follows; 1. I am employed as a Deputy County Counsel for the County of Santa Clara and am duly licensed to practice law before this Court and all California courts. I am attorney of record for the defendants herein. 2. This request for an order modifying the case schedule and Case Management Order is jointly made pursuant to stipulation and is the result of counsel for both parties having met and conferred regarding the existing case schedule, unanticipated discovery issues, and calendaring conflicts with other matters set for trial. 3. The defendants appeared in this matter by way of their answer on June 20, 2008. The original Case Management Order set a fact discovery cutoff date of May 15, 2009 and an expert discovery cutoff date of July 24, 2009. The initial trial date was set for December 7, 2009. In the first quarter of 2009, counsel for defendants was tied up with a case set for trial in the Colorado District Court in April, and thereafter encountered some health problems that resulted in several inpatient procedures and treatment. These issues impacted the completion of discovery and the Court granted a request to move the fact and expert discovery cutoff dates on May 18, 2009. In the meantime, the parties completed an ENE on May 5, 2009. 4. Following the ENE, it became apparent that plaintiff's medical condition and damages claims had changed significantly from what had been discovered and disclosed up to that time. At the same time, defense counsel's availability continued to be impacted by some ongoing health issues, and the concurrent fact discovery cutoff date in another Northern District matter Watson v. County of Santa Clara (N.D. Cal. No. C06-4029 RMW). Counsel for defendants herein is the lead trial counsel for the County in the Watson case which at that time was the subject of a one hundred page complaint and had involved over 50 depositions. Counsel for plaintiff had multiple trials set in the months following the ENE and likewise had limited availability. In light of these considerations, the Court granted a request to modify the Case Management Order and moved the fact discovery cutoff date to October 2, 2009 and
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the expert discovery cutoff date to November 20, 2009. A new trial date of March 29, 2010 was also set by the Court. 5. Plaintiff underwent a defense medical exam in September, 2009 and the fact discovery cutoff date of October 2, 2009 passed with the exception that plaintiff's deposition was completed by stipulation on December 2, 2009. No further disclosures regarding any further surgeries or treatment on the part of the plaintiff were made until recently as part of the meet and confer process before trial. In December 2009, I was advised by my cardiologist that a surgical procedure for my ongoing heart arrhythmia condition was recommended, and this procedure was scheduled for and took place in February, 2010. This resulted in my becoming unavailable for most of March and April, 2010. Also, the Watson case was set for trial on May 10, 2010 and was expected to take up to three months for trial. Plaintiff's counsel had scheduling conflicts for most of June and July 2010. The parties requested a further modification of the Case Management Order in light of these facts which the Court granted on December 31, 2010. The expert discovery cutoff date was moved to July 16, 2010, and the current Pretrial conference date of August 24 and trial date of September 20, 2010 was set. 6. On May 20,2010 Judge Whyte issued an Order on multiple motions for summary judgment in the Watson case which had been heard in December, 2009 and subsequently issued a Case Management Order setting the remainder of that case for trial on November 1, 2010. Pursuant to the scheduling order in that case, experts are to be disclosed on August 6, with expert discovery closing on September 17. The last day to meet and confer and lodge/file all pretrial motions/documents is September 29. This schedule directly conflicts with the current trial date of September 20 in the Masters case and I am trial counsel for both cases for the County. 7. Counsel for both parties in Masters began the meet and confer process regarding pretrial preparation. I was advised by Mr. Allard that he had trial and discovery conflicts impacting his availability in this case in September. More importantly, I was informed that Mr. Masters had undergone surgery following the close of discovery in October, 2009 and the completion of his deposition in December, and that his current condition is dramatically
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different than that testified to at his second day of deposition in December, 2009. Mr. Masters continues to have residual medical complications and unexpected treatments that have not been subject to discovery by defendants or evaluation by defendants experts. I am informed that plaintiff's damages claims are considerably different than what has been presented in discovery, so different in fact that I believe that an Order re-opening fact discovery for the limited purpose of investigating those claims is necessary in order for defendants to fairly evaluate and defend this case. Counsel for plaintiff has agreed to re-opening discovery for this limited purpose. 8. In light of the changed circumstances, and the fact that the earlier ENE essentially dealt with a different case, the parties have agreed to pursue mediation in the interim period between now and the dates set forth for the pretrial conference and trial in this stipulation and proposed Order. The parties are meeting and conferring regarding the selection of a mediator and the scheduling of a mediation in the fall. I declare under penalty of perjury that the foregoing is true and correct and would so testify. I executed this Declaration on July 20, 2010 at San Jose, California. /S/ DAVID M. ROLLO

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