Order Regarding Respndent's Motion for Production of Documents (Doc. 274) Ordering Direct Testimony at the Evidentiary Hearing to be Presented by Declaration
Petitioner Ronald L. Sanders ("Sanders") and Respondent Robert L. Ayers, Jr., ("the Warden") filed motions in limine on July 11, 2008, pursuant to the previously established schedule for the evidentiary hearing in this case. The Court ruled on all except one of the motions on August 28, 2008, requesting the parties to submit supplemental declarations on the Warden's request for discovery of the materials relied on by Sanders' expert witnesses. The Court also requested the parties' responses to questions regarding their disagreement about the presentation of direct testimony by declaration.
The Warden's Motion for Production of Material Relied on by Experts
The Warden seeks discovery, prior to the evidentiary hearing, under Federal Rule of Evidence 705, of certain materials relied upon by Sanders' expert witnesses. Specifically, the Warden seeks:
a. All interview recordings, transcriptions, internal reports, or field notes of interviews and evaluations conducted on Sanders by Nell Riley, Ph.D.;
b. All interview recordings, transcriptions, internal reports, or field notes of the three structured clinical interviews conducted with Sanders by Pablo Stewart, M.D.;
c. All interview recordings, transcriptions, internal reports, or field notes of the three clinical interviews conducted with Sanders, and of the interviews with his siblings, by Julie Kriegler, Ph.D., as well as copies of the medical and psychological reports from Sanders' prison C-File relied on by Dr. Kriegler;
d. The declaration of Jesus Miguel Casanova, dated March 7, 2008, relied on by Susan Sawyer.
Sanders objected, arguing the period for discovery had already closed and assserting the Warden's belated request for discovery, which does not explain the failure to seek timely discovery, should be denied.
In response to questions from the Court regarding this dispute, the Warden filed a declaration stating the election was made to challenge Sanders' expert witnesses by examination at the evidentiary hearing in order to reduce costs. The Warden states that a request under Rule 705 for material relied on by expert witnesses can be made outside the constriants of the discovery process.
Sanders filed a declaration addressing the Court's question regarding what, if any, prejudice exists if the Warden's request is granted. Sanders responded that the prejudice he would suffer "is the prejudice suffered by every litigant whose adversary fails to meet the mandatory elements of a case scheduling order" and that granting the Warden's request would undermine the rules of procedure, the purpose of the scheduling order, and the court-ordered sequence of preparation for the evidentiary hearing. The Court has reviewed the responses of the parties, and based on the entire record, the Warden's request for documents relied on by the expert witnesses is GRANTED.
Disagreement about the Presentation of Direct Testimony by Declaration The only disputed issue in the pre-trial statement is the use of declarations or depositions in lieu of live testimony. Sanders expects to call 14 witnesses: trial counsel Frank Hoover, himself, investigator Roger Ruby, five family members (one of the family members, his cousin Allen Sanders, did not submit a declaration), Strickland experts Stan Simrin, Susan Sawyer and Russler Stetler, and mental health experts Nell Riley, Ph.D., Pablo Stewart, M.D., and Julie Kriegler, Ph.D. The Warden does not expect to call any witnesses, but intends to cross-examine all of Sanders' witnesses.
The Warden objects to the use of declarations or depositions in lieu of live testimony, and requests that all testimony from fact and expert witnesses be presented live (except the testimony of Sanders' aunt, Ima Salie, who was deposed last August due to her ill health). Sanders opposes this objection as untimely and unfounded. Sanders expects to offer each fact and expert witness declaration into evidence.
The Court requested the parties' response to the following questions presented by this dispute: Why does Sanders believe the refusal by the Warden to agree to the use of the ...