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Montano v. Solomon

February 16, 2010

RAUL MONTANO, PLAINTIFF,
v.
SOLOMON, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

AMENDED DISCOVERY AND SCHEDULING ORDER

On February 9, 2010, this case was reassigned to the undersigned for all purposes. Docket No. 34. Presently pending are the requests of both parties that the time for discovery be extended, see Docket Nos. 28, 32, 33, which the court will grant for good cause shown. This change also requires an extension of time for filing dispositive motions.

The only defendant remaining in this action is Dr. Richard Tan, M.D, Docket No. 25, who has answered the Second Amended Complaint, Docket No. 26.

The deadline for discovery in this action was February 5, 2010. See Docket No. 27, at 4. Both parties sought an extension of this deadline prior to its expiration. Plaintiff seeks an extension of the deadline because: he was transferred from California State Prison-Solano to San Quentin on November 18, 2009, and has had limited access to his legal work; he cannot speak English so must rely on the assistance of bilingual inmates; and plaintiff has not received responses to the discovery he has already propounded. Defendant seeks an extension of the deadline due to the late assignment of current outside counsel to this case,*fn1 and the need for additional time to conduct meaningful discovery.

Good cause appearing, see Federal Rule of Civil Procedure ("Fed. R. Civ. P.") 6(b)(1)(A) (request made prior to expiration of deadline), the parties' requests will be granted, and the discovery deadline extended to June 11, 2010. The court will also extend the deadline for filing dispositive motions to September 10, 2010.

Pursuant to Fed. R. Civ. P. 1, 16, and 26-36, discovery shall proceed in accordance with paragraphs 1-5 of this order. In addition, the court will set an amended initial schedule for this litigation.

Should this matter proceed to trial, the court will, by subsequent order, require the parties to file pretrial statements. In addition to the matters required to be addressed in the pretrial statement in accordance with Rule 281, Local Rules of the United States District Court, Eastern District of California ("Local Rules"), plaintiff will be required to make a particularized showing in the pretrial statement in order to obtain the attendance of witnesses at trial. 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 the 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 the claims, 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, CDC 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 ...


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