(PC) Madrid v. De La Cruz ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 DAVID JOSEPH MADRID, Case No. 1:18-cv-00947-DAD-EPG (PC) 11 Plaintiff, ORDER OPENING DISCOVERY AND SETTING TELEPHONIC SCHEDULING 12 v. CONFERENCE 13 A. DE LA CRUZ and M. LOPEZ, (ECF No. 59) 14 ORDER DIRECTING CLERK TO MAIL A Defendants. COPY OF THIS ORDER TO: SHERIFF OF 15 LOS ANGELES COUNTY, 211 WEST TEMPLE STREET, LOS ANGELES, CA 90012 16 17 18 David Madrid (“Plaintiff”) is a prisoner proceeding pro se and in forma pauperis in this 19 civil rights action filed pursuant to 42 U.S.C. § 1983. 20 On October 23, 2019, the Court vacated the scheduling conference that was set in this 21 case. (ECF No. 57). The Court also required Plaintiff “to file a notice stating whether he has 22 enough funds in his prisoner trust account to pay for a phone call, and if so, whether he wants to 23 use his funds in such a manner. The notice shall also include either an estimate regarding [] how 24 long Plaintiff will be housed in Los Angeles County Jail, or a statement that Plaintiff does not 25 know how long he will be housed in Los Angeles County Jail.” (Id. at 2). The Court stated that, 26 “[a]fter receiving Plaintiff’s notice, the Court will either reset the scheduling conference or issue a 27 scheduling order without holding a scheduling conference.” (Id. at 2). 28 On November 7, 2019, Plaintiff filed the required notice. (ECF No. 58). Plaintiff stated 1 that he is able to purchase phone time so that he can appear at the scheduling conference, and that 2 he believes he will be housed in Los Angeles County Jail for a year or more. (Id. at 1). On 3 December 13, 2019, Plaintiff filed a request for a new scheduling conference date. (ECF No. 4 59).1 5 Given Plaintiff’s assertion that he will be able to pay for a phone call so that he can 6 telephonically attend a scheduling conference, as well as his request for the Court to set a 7 scheduling conference, the Court will reset the scheduling conference. 8 Additionally, given the delays that have occurred in this case, the Court will now open 9 discovery. The parties may begin taking discovery immediately, as described below. The Court 10 will set further dates at or shortly after the scheduling conference. 11 Accordingly, IT IS ORDERED that: 12 1. Plaintiff’s request for a new scheduling conference date is GRANTED. A 13 telephonic scheduling conference is set for March 2, 2020, at 1:30 p.m., in 14 Courtroom 10 (EPG) before Magistrate Judge Erica P. Grosjean. 15 2. To appear telephonically, Plaintiff is directed to use the following dial-in number: 16 559-515-4088. 17 3. To appear telephonically, defense counsel is directed to use the following dial-in 18 number, meeting number, and PIN: dial-in number 858-812-0972; meeting number 19 3000023; PIN 5910. 20 4. Plaintiff shall make arrangements with staff at his institution of confinement for 21 his attendance at the conference. 22 5. Plaintiff's institution of confinement shall make Plaintiff available for the 23 conference at the date and time indicated above. 24 6. To the extent possible, prior to the conference defense counsel shall confirm with 25 Plaintiff's institution of confinement that arrangements have been made for 26 1 In this request Plaintiff also “requests that Defendants[’] request to prevent or hinder Plaintiff[’]s case be 27 denied in the interest of justice.” (ECF No. 59, p. 1). The Court notes that Defendants have filed not filed any such request. 28 1 Plaintiff's attendance. 2 7. The Clerk of Court is directed to mail a copy of this order to: Sheriff of Los 3 Angeles County, 211 West Temple Street, Los Angeles, CA 90012. 4 8. Discovery is now open. Discovery shall proceed as follows: 5 a. Discovery requests shall be served by the parties pursuant to Federal Rule 6 of Civil Procedure 5 and Local Rule 135. Discovery requests and 7 responses shall not be filed with the Court unless required by Local Rules 8 250.2, 250.3, or 250.4 (providing that discovery requests shall not be filed 9 unless or until there is a proceeding in which the document or proof of 10 service is at issue). A party may serve on any other party no more than 15 11 interrogatories, 15 requests for production of documents, and 15 requests 12 for admission. On motion, these limits may be increased for good cause. 13 b. Responses to written discovery requests shall be due forty-five (45) days 14 after the request is first served. Boilerplate objections are disfavored and 15 may be summarily overruled by the Court. Responses to document 16 requests shall include all documents within a party’s possession, custody or 17 control. Fed. R. Civ. P. 34(a)(1). Documents are deemed within a party’s 18 possession, custody, or control if the party has actual possession, custody, 19 or control thereof, or the legal right to obtain the property on demand. 20 c. If any party or third party withholds a document on the basis of privilege, 21 that party or third party shall provide a privilege log to the requesting party 22 identifying the date, author, recipients, general subject matter, and basis of 23 the privilege within thirty (30) days after the date that responses are due. 24 The privilege log shall simultaneously be filed with the Court. Failure 25 to provide and file a privilege log within this time shall result in a 26 waiver of the privilege. Additionally, if a party is claiming a right to 27 withhold witness statements and/or evidence gathered from 28 investigation(s) into the incident(s) at issue in the complaint based on 1 the official information privilege, the withholding party shall submit 2 the withheld witness statements and/or evidence to the Court for in 3 camera review, along with an explanation of why the witness 4 statements and/or evidence is privileged.2 The witness statements and/or 5 evidence shall be Bates stamped, and mailed to Judge Grosjean at 2500 6 Tulare Street, Sixth Floor, Fresno, CA 93721. The withholding party shall 7 also file and serve a notice that they have complied with this order. All 8 other claims of privilege, including claims of the official information 9 privilege over information other than witness statements and/or evidence 10 gathered from investigation(s) into the incident(s) at issue in the complaint, 11 may be challenged via a motion to compel. 12 d. Pursuant to Federal Rule of Civil Procedure 30(a)(2)(B), Defendant(s) may 13 depose Plaintiff and any other witness confined in a prison on the condition 14 that, at least fourteen (14) days before such a deposition, Defendant(s) 15 serve all parties with the notice required by Federal Rule of Civil 16 Procedure 30(b)(1). Plaintiff’s failure to participate in a properly noticed 17 deposition could result in sanctions against Plaintiff, including monetary 18 sanctions and/or dismissal of this case. Pursuant to Federal Rule of Civil 19 2 See Woodford v. Ngo, 548 U.S. 81, 94-95 (2006) (“[P]roper exhaustion improves the quality of those 20 prisoner suits that are eventually filed because proper exhaustion often results in the creation of an administrative record that is helpful to the court. When a grievance is filed shortly after the event giving rise to the grievance, 21 witnesses can be identified and questioned while memories are still fresh, and evidence can be gathered and preserved.”). 22 The “common law governmental privilege (encompassing and referred to sometimes as the official or state secret privilege) . . . is only a qualified privilege, contingent upon the competing interests of the requesting litigant 23 and subject to disclosure . . . .” Kerr v. U.S. Dist. Ct. for N. Dist. of Cal., 511 F.2d 192, 198 (9th Cir. 1975) (internal citations omitted). The Ninth Circuit has since followed Kerr in requiring in camera review and a balancing of 24 interests in ruling on the government’s claim of the official information privilege. See, e.g., Breed v. U.S. Dist. Ct. for N. Dist. of Cal., 542 F.2d 1114, 1116 (9th Cir. 1976) (“[A]s required by Kerr, we recognize ‘that in camera 25 review is a highly appropriate and useful means of dealing with claims of governmental privilege.’”) (quoting Kerr v. U. S. Dist. Ct. for N. Dist. of Cal., 426 U.S. 394, 406 (1976)); Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033-34 26 (9th Cir. 1990), as amended on denial of reh'g (Feb. 27, 1991), as amended on denial of reh'g (May 24, 1991) (“Government personnel files are considered official information. To determine whether the information sought is 27 privileged, courts must weigh the potential benefits of disclosure against the potential disadvantages. If the latter is greater, the privilege bars discovery.”) (internal citations omitted). 28 1 Procedure 30(b)(4), the parties may take any deposition under this section 2 by video conference without a further motion or order of the Court. Due to 3 security concerns and institutional considerations not applicable to 4 Defendant(s), Plaintiff must seek leave from the Court to depose 5 incarcerated witnesses pursuant to Federal Rule of Civil Procedure 6 30(a)(2). Nothing herein forecloses a party from bringing a motion for 7 protective order pursuant to Federal Rule of Civil Procedure 26(c)(1) if 8 necessary. 9 e. With the Court’s permission, Plaintiff may serve third party subpoenas, 10 including on the California Department of Corrections and Rehabilitation 11 and/or the Office of the Inspector General, if Plaintiff seeks documents 12 from entities that are not presently defendants in this case. To issue a 13 subpoena on these entities, or any other third parties, Plaintiff must file a 14 request for the issuance of a subpoena duces tecum with the Court. If the 15 Court approves the request, it may issue Plaintiff a subpoena duces tecum, 16 commanding the production of documents from a non-party, and may 17 command service of the subpoena by the United States Marshals Service. 18 Fed. R. Civ. P. 45; 28 U.S.C. 1915(d). However, the Court will consider 19 granting such a request only if the documents sought from the non-party are 20 not equally available to Plaintiff and are not obtainable from Defendant(s) 21 through a Rule 34 request for production of documents. In any request for 22 a subpoena, Plaintiff must: (1) identify with specificity the documents 23 sought and from whom; and (2) make a showing in the request that the 24 records are only obtainable through a third party. The documents 25 requested must also fall within the scope of discovery allowed in this 26 action. See Fed. R. Civ. P. 26(b)(1). 27 f. The parties are required to act in good faith during the course of discovery 28 and the failure to do so may result in the payment of expenses pursuant to 1 Federal Rule of Civil Procedure 37(a)(5) or other appropriate sanctions 2 authorized by the Federal Rules of Civil Procedure or the Local Rules. 3 4 IT IS SO ORDERED. Dated: _ January 8, 2020 [Jee ey 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28