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Michael Angelo Morales, Albert G. Brown v. Matthew Cate

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION


May 13, 2011

MICHAEL ANGELO MORALES, ALBERT G. BROWN, PLAINTIFFS,
v.
MATTHEW CATE, SECRETARY OF THE CALIFORNIA
DEPARTMENT OF CORRECTIONS AND REHABILITATION, ET AL.,
DEFENDANTS. PACIFIC NEWS SERVICE,
PLAINTIFF
v.
MATTHEW CATE, SECRETARY OF THE CALIFORNIA
DEPARTMENT OF CORRECTIONS AND REHABILITATION, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Honorable Jeremy Fogel United States District Judge

JOINT PROPOSED SCHEDULE FOR COMPLETING DISCOVERY;

[PROPOSED] ORDER;GENERAL ORDER 45 ATTESTATION

The Warden at San Quentin has determined that he will need until the end of August 2011 to select a new execution team.

Defendants are in the process of preparing their discovery responses in compliance with their discovery obligations set forth in the Court's March 11, 2011 order, and are preparing these materials for disclosure. Defendants will thereafter supplement the foregoing discovery responses after the selection of a new execution team in a timely manner as required by Rule 26(e), and in any event, within 14 days of the completion of the selection of the new team, unless modified by agreement of the parties.

Defendants will produce responsive documents to Plaintiffs, including documents related to the selection of the new execution team, on a rolling basis as they are collected.

The production of such documents will be completed by June 30, 2011, except for any additional production concerning the new team's selection and ongoing training or 16 changes to the execution team personnel. Defendants will notify Plaintiffs of the creation 17 of additional documents concerning the team's ongoing training (and produce such 18 documentation) and/or any changes to the team personnel in a timely manner as required 19 20 by Rule 26(e), and in any event, within 14 days following the creation of the document or 21 the change to the team personnel, unless modified by agreement of the parties.

Plaintiffs have renewed their request that Defendants provide the missing team identification numbers and team training materials for the period 2008 through August 29, 2010. See Plaintiffs' Discovery Hearing Conference Report, Mar. 3, 2011, at 2-4 (ECF No. 509); Contra Order Re Discovery and Defendants' Motion to Strike, at 2 n.1 (ECF No.513) (it "appears from counsel's representations at the hearing that this issue 28 has been resolved."). The parties will work together to resolve this issue, and if it cannot be resolved, will submit a joint statement to the Court for its review and resolution of the issue by September 30, 2011.

Plaintiffs will review on a rolling basis the documents and information received in order to, inter alia, identify witnesses for depositions. Depositions will be scheduled 5 thereafter. At this point, Plaintiffs anticipate deposing witnesses with knowledge of the 6 7 regulations and execution team documents, document custodians, and present and former execution team managers and participants. In this regard, Plaintiffs counsel have 9 conferred with Defendants' counsel generally about the scheduling of the depositions (see L.R. 30-1), and counsel are aware of and understand that counsel have other 11 professional obligations, including trials, that previously have been calendared. The 12 parties will work together to schedule depositions on dates certain when the witnesses 13 14 and counsel are available. L.R. 30-1.

If a dispute arises during a deposition regarding a party's assertion of a privilege, objection, or instruction to a witness that cannot be resolved by conferring in good faith, counsel will contact Judge Fogel's chambers pursuant to Local Rule 37-1(b) to ask if the Court is available to address the problem through a telephone conference during the 19 20 deposition, or whether counsel can be directed to a Magistrate Judge to resolve the matter. Counsel will advise the Court of the deposition schedule via e-mail to Mr. Kolombatovich when the depositions are set.

Based upon counsel for Plaintiffs' review of certain documentation produced by Defendants to date, Plaintiffs believe that it may be incomplete. Plaintiffs believe that these issues can be clarified during depositions. If the production of such records is in 27 fact incomplete, additional time will be required for Defendants to make complete 28 productions, for Plaintiffs' counsel to review the records, and for the parties to complete the depositions. In addition, Defendants hope to obtain further discovery responses from Plaintiffs and will work with Plaintiffs to resolve these issues before bringing them to the Court for any resolution.

Once Defendants complete their discovery obligations set forth in the Court's March 11, 2011 order and all supplements thereto, and Plaintiffs complete all non-expert 6 7 depositions, Plaintiffs will supplement their responses to Defendants' contention interrogatories in a timely manner, and in any event within 14 days, unless modified by 9 agreement of the parties. After the foregoing discovery has been completed, the parties 10 will identify expert information as required by Rule 26(a)(2), and present their experts for 11 depositions thereafter.

In light of this stipulated discovery schedule which has been carefully considered by the parties and is entered into in a good faith attempt to meet the Court's expectations that "the parties [] comply with their discovery obligations . . . and [] resolve any further disputes amicably without bringing them to the Court" (Order Re Discovery and Defendants' Motion to Strike, at 6 (ECF No.513)),

IT IS HEREBY STIPULATED THAT:

1. The foregoing discovery will be completed by January 15, 2012; and

2. The parties will file a joint statement identifying any material issues of fact that 4 will require an evidentiary hearing by February 15, 2012.

DATED: May 9, 2011 By: David A. Senior McBREEN &SENIOR Richard P. Steinken JENNER & BLOCK John R. Grele LAW OFFICE OF JOHN R. GRELE Attorneys for Plaintiffs ALBERT G. BROWN and MICHAEL A. MORALES DATED: May 9, 2011 By: *Michael Laurence Sara Cohbra HABEAS CORPUS RESOURCE CENTER Attorneys for Plaintiffs MITCHELL SIMS and STEVIE FIELDS DATED: May 9, 2011 By: * Ajay S. Krishnan KEKER & VAN NEST LLP Attorneys for Plaintiffs PACIFIC NEWS SERVICE DATED: May 9, 2011 By: * MICHAEL J. QUINN Deputy Attorney General Attorneys for Defendants BROWN, CATE, AND CULLEN

PURSUANT TO STIPULATION, IT IS SO ORDERED.

*GENERAL ORDER 45 ATTESTATION

Per General Order 45, Section X.B. I hereby attest that the concurrence in the filing of this document has been obtained from all signatories.

David A. Senior

20110513

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