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Brady v. Fishback

January 8, 2009

PATRICK BRADY, PLAINTIFF,
v.
TIMOTHY FISHBACK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Arthur L. Alarcón United States Circuit Judge Sitting by Designation

REVISED SCHEDULING ORDER FOR TRIAL

On April 28, 2008, the Court issued an order vacating the original scheduling order, dated December 17, 2007 (Doc. 41), and the July 15, 2008 trial date. (Doc. 60). In that order, the Court granted Plaintiff's motion to extend discovery for the limited purpose of taking depositions of non-party witnesses (Doc. 48) and granted Plaintiff's motion to stay Defendants' motion for summary judgment (Doc. 58) pending the completion of the further discovery requested by Plaintiff. (Doc. 60).

The record reflects that Plaintiff has received written responses from five of the seven non-party witnesses to whom he provided written deposition questions. The Court has issued an order to show cause as to the remaining outstanding responses. Plaintiff has had an opportunity, with the assistance of the Court, to complete the discovery requested in Plaintiff's motion to extend discovery for the limited purpose of taking depositions of non-party witnesses (Doc. 48). Accordingly, the Court sets forth this revised scheduling order pursuant to Rule 16(b) of the Federal Rules of Civil Procedure. The Court will, by this order, set a schedule concerning trial.

In due course, the parties will be required to file pretrial statements in accordance with the schedule set forth below. In addition to the matters already required to be addressed in the pretrial statement in accordance with Local Rule 16-281, plaintiff will be required to make a particularized showing in his pretrial statement in order to obtain the attendance of witnesses. Plaintiff is advised that failure to comply with the procedures set forth below may result in the preclusion of any and all witnesses named in his pretrial statement.

At the trial of this case, the plaintiff must be prepared to introduce evidence to prove each of the alleged facts that support the claims raised in the lawsuit. In general, there are two kinds of trial evidence: (1) exhibits and (2) the testimony of witnesses. It is the plaintiff's responsibility to produce all of the evidence to prove his case, whether that evidence is in the form of exhibits or witness testimony. If the plaintiff wants to call witnesses to testify, he must follow certain procedures to ensure that the witnesses will be at the trial and available to testify.

I. Procedures for Obtaining Attendance of Incarcerated Witnesses Who Agree to Testify Voluntarily

An incarcerated witness who agrees voluntarily to attend trial to give testimony cannot come to court unless this court orders the warden or other custodian to permit the witness to be transported to court. This court will not issue such an order unless it is satisfied that:

1. The prospective witness is willing to attend; and

2. The prospective witness has actual knowledge of relevant facts.

With the pretrial statement, a party intending to introduce the testimony of incarcerated witnesses who have agreed voluntarily to attend the trial must serve and file a written motion for a court order requiring that such witnesses be brought to court at the time of trial. The motion must:

1. State the name, CDCR Identification number, and address of each such witness; and

2. Be accompanied by affidavits showing that each witness is willing to testify and that each witness has actual knowledge of relevant facts.

The willingness of the prospective witness can be shown in one of two ways:

1. The party himself can swear by affidavit that the prospective witness has informed the party that he or she is willing to testify voluntarily without being subpoenaed. The party must state in the affidavit when and where the ...


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