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McIntosh v. United States

May 30, 2008

SARAH BURNS MCINTOSH; LOUIS CHARLES MCINTOSH, PLAINTIFFS,
v.
UNITED STATES OF AMERICA, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge

ORDER DENYING PETITION FOR WRIT OF HABEAS AD TESTIFICANDUM

Plaintiffs have filed a Petition for Writ of Habeas Ad Testificandum so that Cedric Lamont Tate, who is imprisoned at the Kern Valley State Prison in Delano, California, may be present at trial to provide testimony. Plaintiffs' Petition is DENIED.

As previously discussed by the Court, Plaintiffs may take Tate's deposition. This deposition testimony may be offered at trial because Tate is more than 100 miles from the place of trial. Fed. R. Civ. P. 32(a)(4)(B). Given the alternate means of preserving Tate's testimony, Tate's presence will not substantially further the resolution of the case, and the expense and security risks involved in transporting and housing Tate are not justified. See Ballard v. Spradley, 557 F.2d 476, 480-81 (5th Cir. 1977) (enumerating factors to be considered when determining whether to issue a writ of habeas corpus ad testificandum).

Thus, Plaintiffs' Petition for Writ of Habeas Ad Testificandum is DENIED.

IT IS SO ORDERED.

20080530

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