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United States v. Sweeney

United States District Court, E.D. California

June 29, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JOHN DONNELLY SWEENEY, et al., Defendants.

          STATUS (PRETRIAL SCHEDULING) ORDER

         An initial scheduling conference was held in this case on June 8, 2017. Gregory Broderick and Rochelle Russell appeared for plaintiff; Lawrence Bazel appeared for defendants.

         Having reviewed the parties' Joint Status Report filed on June 1, 2017, and discussed a schedule for the case with counsel at the hearing, the court makes the following orders:

         I. SERVICE OF PROCESS

         All named defendants have been served and no further service is permitted without leave of court, good cause having been shown.

         II. ADDITIONAL PARTIES/AMENDMENTS/PLEADINGS

         Any joinder of parties or amendments to the pleadings shall be filed by December 1, 2017. No additional joinder or amendments to pleadings will be permitted without leave of court, good cause having been shown. See Fed. R. Civ. P. 16(b); Johnson v. Mammoth Recreations, Inc., 975 F.2d 604 (9th Cir. 1992).

         III. JURISDICTION/VENUE

         Jurisdiction is predicated upon 28 U.S.C. §§ 1331 & 1345 and 33 U.S.C. § 1319(b). Jurisdiction and venue are not disputed.

         IV. DISCOVERY

         Initial disclosures as required by Federal Rule of Civil Procedure 26(a) shall have been completed by June 8, 2017. All discovery shall be completed by August 15, 2018. In this context, “completed” means that all discovery shall have been conducted so that all depositions have been taken and any disputes relative to discovery shall have been resolved by appropriate order if necessary and, where discovery has been ordered, the order has been obeyed. All motions to compel discovery must be noticed on the magistrate judge's calendar in accordance with the local rules of this court. While the assigned magistrate judge reviews proposed discovery phase protective orders, requests to seal or redact are decided by Judge Mueller as discussed in more detail below. In addition, while the assigned magistrate judge handles discovery motions, the magistrate judge cannot change the schedule set in this order, except that the magistrate judge may modify a discovery cutoff to the extent such modification does not have the effect of requiring a change to the balance of the schedule.

         The parties will exhaust efforts to reach a stipulation regarding any increase in numbers of interrogatories and depositions, in excess of the caps provided by the Federal Rules of Civil Procedure. If they are unable to reach agreement, they shall submit their dispute to the assigned magistrate judge.

         The court separately has approved the parties' stipulated agreements regarding electronically stored information (ESI) and discovery procedures, and inadvertent disclosure of privileged information (Fed. R. Civ. Evid. 502). These orders are to be treated as companion orders to this scheduling order, with the same force and effect.

         The parties will, within fourteen (14) days of the scheduling conference, file with the court a stipulation and proposed order, or separate proposed orders if no stipulation can be reached, providing: (a) a discovery phase protective order to facilitate discovery of material a party claims as confidential, in particular financial information; and (b) an order governing preparation of privilege logs as required by Fed.R.Civ.P. 26(b)(5) addressing the presence of privileged or work product material embedded in e-mail communications. To the extent the parties are unable to reach agreement regarding the effect of a Common Interest Confidentiality Agreement between the United States, the San Francisco Regional Water Quality Board and the San Francisco Bay Conservation and Development Commission, the parties shall submit their dispute to the assigned magistrate judge.

         V. DISCLOSURE OF EXPERT WITNESSES

         The parties shall provide “opening expert reports, ” i.e., to make disclosures and provide information under Federal Rule of Civil Procedure 26(a)(2) to the extent that they may use any witness at trial to present evidence under Federal Rule of Evidence 702, 703, or 705, by June 8, 2018. This deadline applies to the extent that the party bears the burden of proof on the subject matter at hand. Further, with respect to “retained experts” (i.e., an individual “retained or specially employed to provide expert testimony in the case or one whose duties regularly involve giving expert testimony, ” Fed.R.Civ.P. 26(a)(2)(B)), opening expert reports must comply with Fed.R.Civ.P. 26(a)(2)(B). With respect to “percipient experts” (persons who, because of their expertise, have rendered expert opinions in the normal course of their work duties or observations pertinent to the issues in the case), opening expert reports may take the form of summaries and otherwise comply with Fed.R.Civ.P. 26(a)(2)(C).

         The parties shall provide “responsive expert reports, ” i.e., the deadline for parties to make disclosures and provide information under Rule 26(a)(2) to the extent that they intend to use such information solely to contradict or rebut evidence on the same subject matter identified by the opposing side under Rule 26(a)(2)(B) or (C), by July 27, 2018. With respect to retained experts, responsive expert reports must comply with Fed.R.Civ.P. 26(a)(2)(B). With respect to percipient experts, responsive expert reports may take the form of summaries and must comply with Fed.R.Civ.P. 26(a)(2)(C). No additional expert reports, including any purported supplemental expert reports, may be drafted or provided absent prior leave of court.

         A party shall identify whether a disclosed expert is percipient, retained, or both. It will be assumed that a party designating a retained expert has acquired the express permission of the witness to be so listed. Parties designating percipient experts must state in the designation who is responsible for arranging the deposition of such persons.

         All experts designated are to be fully prepared at the time of designation to render an informed opinion, and give the bases for their opinion, so that they will be able to give full and complete testimony at any deposition taken by the opposing party. Experts will not be permitted to testify at trial as to any information gathered or evaluated, or opinion formed, after deposition taken subsequent to designation. Depositions of any expert witnesses disclosed in accordance with Rule 26(a)(2) will not count ...


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