United States District Court, E.D. California
MOIZEZ M. MUNOZ, Plaintiff,
v.
UNDERWOOD, et al., Defendants.
SCHEDULING ORDER AND ORDER DIRECTING CLERK TO SEND
PLAINTIFF A COPY OF LOCAL RULE 281(B)
This
Court conducted a scheduling conference on December 2, 2019.
Plaintiff Moizez Munoz telephonically appeared on his own
behalf. Counsel Van Kamberian and Phillip Arthur
telephonically appeared on behalf of Defendant(s). Pursuant
to Federal Rule of Civil Procedure 16(b), this Court now sets
a schedule for this action.
I.
DISCOVERY PROCEDURES
The
parties are now granted leave to serve discovery in addition
to that provided as part of initial disclosures. Pursuant to
Federal Rules of Civil Procedure 1, 16, and 26-36, discovery
shall proceed as follows:
1. Discovery requests shall be served by the parties pursuant
to Federal Rule of Civil Procedure 5 and Local Rule 135.
Discovery requests and responses shall not be filed with the
Court unless required by Local Rules 250.2, 250.3, or 250.4
(providing that discovery requests shall not be filed unless
or until there is a proceeding in which the document or proof
of service is at issue). A party may serve on any other party
no more than 15 interrogatories, 15 requests for production
of documents, and 15 requests for admission. On motion, these
limits may be increased for good cause.
2. Responses to written discovery requests shall be due
forty-five (45) days after the request is
first served. Boilerplate objections are disfavored and may
be summarily overruled by the Court. Responses to document
requests shall include all documents within a party's
possession, custody or control. Fed.R.Civ.P. 34(a)(1).
Documents are deemed within a party's possession,
custody, or control if the party has actual possession,
custody, or control thereof, or the legal right to obtain the
property on demand.
3. If any party or third party withholds a document on the
basis of privilege, that party or third party shall provide a
privilege log to the requesting party identifying the date,
author, recipients, general subject matter, and basis of the
privilege within thirty (30) days after the
date that responses are due. The privilege log shall
simultaneously be filed with the Court. Failure to provide
and file a privilege log within this time shall result in a
waiver of the privilege. Additionally, if a
party is claiming a right to withhold witness statements
and/or evidence gathered from investigation(s) into the
incident(s) at issue in the complaint based on the official
information privilege, the withholding party shall submit the
withheld witness statements and/or evidence to the Court for
in camera review, along with an explanation
of why the witness statements and/or
evidence is privileged.[1] The witness statements
and/or evidence shall be Bates stamped, and mailed to Judge
Grosjean at 2500 Tulare Street, Sixth Floor, Fresno, CA
93721. The withholding party shall also file and serve a
notice that they have complied with this order. All other
claims of privilege, including claims of the official
information privilege over information other than witness
statements and/or evidence gathered from investigation(s)
into the incident(s) at issue in the complaint, may be
challenged via a motion to compel. 4. Pursuant to Federal
Rule of Civil Procedure 30(a)(2)(B), Defendant(s) may depose
Plaintiff and any other witness confined in a prison on the
condition that, at least fourteen (14) days before such a
deposition, Defendant(s) serve all parties with the notice
required by Federal Rule of Civil Procedure 30(b)(1).
Plaintiff's failure to participate in a properly noticed
deposition could result in sanctions against Plaintiff,
including monetary sanctions and/or dismissal of this case.
Pursuant to Federal Rule of Civil Procedure 30(b)(4), the
parties may take any deposition under this section by video
conference without a further motion or order of the Court.
Due to security concerns and institutional considerations not
applicable to Defendant(s), Plaintiff must seek leave from
the Court to depose incarcerated witnesses pursuant to
Federal Rule of Civil Procedure 30(a)(2). Nothing herein
forecloses a party from bringing a motion for protective
order pursuant to Federal Rule of Civil Procedure 26(c)(1) if
necessary.
5. With the Court's permission, Plaintiff may serve third
party subpoenas, including on the California Department of
Corrections and Rehabilitation and/or the Office of the
Inspector General, if Plaintiff seeks documents from entities
that are not presently defendants in this case. To issue a
subpoena on these entities, or any other third parties,
Plaintiff must file a request for the issuance of a subpoena
duces tecum with the Court. If the Court approves
the request, it may issue Plaintiff a subpoena duces
tecum, commanding the production of documents from a
non-party, and may command service of the subpoena by the
United States Marshals Service. Fed.R.Civ.P. 45; 28 U.S.C.
1915(d). However, the Court will consider granting such a
request only if the documents sought from the
non-party are not equally available to Plaintiff and are not
obtainable from Defendant(s) through a Rule 34 request for
production of documents. In any request for a subpoena,
Plaintiff must: (1) identify with specificity the documents
sought and from whom; and (2) make a showing in the request
that the records are only obtainable through a third party.
The documents requested must also fall within the scope of
discovery allowed in this action. See Fed. R. Civ.
P. 26(b)(1).
6. The parties are required to act in good faith during the
course of discovery and the failure to do so may result in
the payment of expenses pursuant to Federal Rule of Civil
Procedure 37(a)(5) or other appropriate sanctions authorized
by the Federal Rules of Civil Procedure or the Local Rules.
7. A discovery and status conference is set for May
11, 2020, at 1:30 p.m. Parties have leave to appear
by phone. To join the conference, each party is directed to
call the toll-free number (888) 251-2909 and
use Access Code 1024453. Up until
twenty-eight days before the conference, the parties may file
motions to compel further discovery responses. No later than
fourteen days before the conference, the responding party may
file response(s) to motion(s) to compel. The motion should
include a copy of the request(s) and any response to the
request(s) at issue. Unless there is a need for discovery
prior to the conference, motions to compel will not be
considered until the conference. Motions to compel will not
be permitted after the conference absent good cause. The
parties should be prepared to address all discovery disputes
and all pending motions at the conference.
8. Plaintiff shall make arrangements with staff at his or her
institution of confinement for his or her attendance at the
discovery and status conference. Plaintiff's institution
of confinement shall make Plaintiff available for the
conference at the date and time indicated above. To the
extent possible, prior to the conference defense counsel
shall confirm with Plaintiff's institution of confinement
that arrangements have been made for Plaintiff's
attendance.
II.
PAGE LIMITS AND COURTESY COPIES
The
parties are advised that unless prior leave of the Court is
obtained before the filing deadline, [2] all moving and
opposition briefs or legal memoranda shall not exceed
twenty-five (25) pages. Reply briefs by the moving party
shall not exceed ten (10) pages. These page limits do not
include exhibits.
Defendant(s)
shall mail or deliver courtesy hard-copies of all motions
over 10 pages in length to the court at 2500 Tulare St., Room
1501, Fresno, CA 93721. Courtesy hard-copies shall reflect
the CM/ECF document numbers and pagination.
III.
NON-EXPERT DISCOVERY DEADLINE
The
deadline for the completion of all non-expert discovery is
June 19, 2020. All nonexpert discovery must
be provided by this date, including discovery ...