The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S REQUEST FOR ATTENDANCE OF INCARCERATED WITNESSES
ORDER GRANTING DEFENDANTS' REQUEST TO MODIFY PRETRIAL
Before the Court are two motions filed by the parties. In the
first, Plaintiff seeks an order that certain incarcerated witnesses be
permitted to attend and give testimony at trial. (Doc. 113) As set
forth below, this motion is GRANTED IN PART and
DENIED IN PART . In the second motion, Defendants
seek to amend their pretrial conference statement to add a witness who
was inadvertently omitted from their earlier-filed statement. (Doc.
123) For the reasons set forth below, this motion is
I. Motion for attendance of incarcerated witnesses
On September 30, 2011, the Court issued its Second Scheduling Order. (Doc. 112) This order set forth the requirements for the parties to obtain the attendance of incarcerated witnesses. As to incarcerated witnesses who agree to testify, in the motion seeking the witnesses' attendance at trial, the moving party was required to demonstrate that the witness had first hand knowledge of the events and is willing to testify. Id. at 2-3. A detailed declaration is required to demonstrate both issues. Id. The same requirements apply for incarcerated witness who have not agreed to testify voluntarily except that the moving party is required to detail this refusal. Id.
A. Failure to obtain current agreements to testify
In his motion, Plaintiff provides a declaration in which he attests that each of the witnesses told him he was willing to testify voluntarily without a subpoena. (Doc. 113 at 2) Mr. Thomas reports that the witnesses' communicated their agreement to testify in June 2009. Id. After this, Mr. Thomas was transferred away from these witnesses and has had no contact with them since that time. Id. at 4. Defendants object that this declaration does not demonstrate a current willingness to testify. (Doc. 118 at 3)
The Court is aware that Plaintiff has no ability to maintain contact with these inmates absent special permission granted by the CDCR. As a result, the Court does not find that Plaintiff's failure to demonstrate more recent agreement to testify is willful but, instead, is a consequence of his incarceration. Thus, the Court will not deprive Plaintiff of the ability to call these witnesses to testify based upon this circumstance. *fn1 Thus, the objection is OVERRULED .
Plaintiff proposes to introduce the testimony of inmate Eugene Martin who, he reports, will "give testimony [that] inmates with R suffix are subjected to be attacked by other active inmates." (Doc. 113 at 3) Plaintiff reports that Mr. Martin "was an inmate at Corcoran for years and [will] give expert testimony concerning inmates with R suffixs [sic]." Id. at 4. Plaintiff asserts that Mr. Martin has personal knowledge of this topic and agreed to testify when he and Plaintiff were last housed at the same institution in 2009.
Defendants object that there is an insufficient showing of personal knowledge in the declaration, that he was not identified as an expert witness in Plaintiff's pretrial statement and that there is an inadequate showing of expertise.
Notably, F. R. E. 702 permits expert opinion whenever it will help the trier of fact to understand the evidence or to determine a fact in issue but only if it is based on sufficient facts or data, it is the result of reliable principles and methods and the expert has reliably applied these principles and methods to the data. Here, though Court has little doubt that Mr. Martin has expertise ...