UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
October 16, 2009
UNITED STATES OF AMERICA, PLAINTIFF,
BRIAN GANOE, DONALD MCKAY, AND MAC MCFARLIN , DEFENDANTS.
The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
ORDER DENYING MOTION SHORTENING TIME
The defendants have applied ex parte for an order shortening time to be heard on their Motion to Preserve Evidence [Doc. 6]. The gravamen of defendants' motion appears to center on their request to enter federal lands to perform repair or reclamation work to a road which was allegedly damaged by the acts of the defendants. [Doc. 1].
Defendants assert that the motion should be heard on shortened time because of the onslaught of adverse weather and the potential for further destruction of the road and nearby area.
The present motion to shorten time does not establish that plaintiff will be irreparably prejudiced if its motion is heard on the regular motion calendar. Nor do defendants establish that they were without fault in creating whatever it is that they perceive as a crisis condition. The court also expresses doubt whether the authority cited by defendants in their moving papers support the novel request to allow defendants in a criminal action to perform activities or tests that would physical alter or change the evidence in a case without the consent of the government.
A defendant's Fourteenth Amendment due process rights include a general right to access evidence. The government's duty to preserve evidence, however, only requires that evidence be preserved if it "might be expected to play a significant role in the suspect's defense." California v. Trombetta, 467 U.S. 479, 488, 104 S.Ct. 2528, 2534, 81 L.Ed. 2d 413 (1984). The evidence may not be destroyed if its exculpatory value is apparent. Unless the defendants have additional authority, however, Trombetta cannot be interpreted to allow defendants the type of remedial access to the road and nearby area as envisioned in the Declaration of Donald Olson. [Doc. 7].
For these reasons, defendants' application for an order shortening time is denied. The Clerk is instructed to place plaintiff's motion on the Law and Motion calendar for November 19, 2009, at 11:00, and give notice to all parties of the time for hearing same.
Accordingly, IT IS HEREBY ORDERED THAT:
1. Defendants' Ex Parte Application for an Order Shortening Time is denied.
2. Defendants' Motion to Preserve Evidence is set before the undersigned on November 19, 2009, at the United States Courthouse in Redding, California. Any party may appear telephonically. Each party may serve and file supplemental authority not later than four court days before the hearing.
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