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Kirk v. Felker

January 12, 2009

JOHN MICHAEL KIRK, PETITIONER,
v.
TOM FELKER, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Having ordered, in a concurrently filed order, that an evidentiary hearing is to be held on June 15, 2009, and appointing counsel therefor, to determine whether petitioner may be entitled to equitable tolling in the filing of his petition, the court now makes the following additional ORDERS with respect to the impending evidentiary hearing:

A. Witnesses

On or before ten days prior to the hearing the parties shall provide witness lists, including addresses and telephone numbers, to opposing counsel.

Each party may call any witnesses designated by the other.

1. No other witness will be permitted to testify unless:

a. The party offering the witness demonstrates that the witness is for the purpose of rebutting evidence which could not be reasonably anticipated prior to the evidentiary hearing.

b. The witness was discovered after the exchange of witnesses and the proffering party makes the showing required in "2," below.

2. If not timely designated within the ten day period prior to the evidentiary hearing, the parties shall promptly inform the court and opposing parties of the existence of the unlisted witnesses so that the court may consider at the evidentiary hearing whether the witnesses shall be permitted to testify. The witnesses will not be permitted unless:

a. The witnesses could not reasonably have been discovered prior to the exchange of witness lists;

b. The court and the opposing party were promptly notified upon discovery of the witnesses;

c. If time permitted, the party proffered the witnesses for deposition; or

d. If time did not permit, a reasonable summary of the witnesses' testimony was provided to the opposing party.

3. On or before twenty days prior to the hearing, the parties shall designate their expert witnesses, if any; on or before thirty days prior to the hearing, movant shall provide respondent and respondent shall provide movant, with the report of each ...


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