1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 CITIZENS DEVELOPMENT Case No.: 3:12-CV-334-GPC(KSC) CORPORATION, INC., 10 ORDER GRANTING IN PART AND Plaintiff, 11 DENYING IN PART JOINT MOTION v. TO AMEND SCHEDULING ORDER; 12 AMENDED SCHEDULING ORDER COUNTY OF SAN DIEGO, California 13 REGULATING DISCOVERY AND municipal corporation, et al., OTHER PRE-TRIAL PROCEEDINGS 14 Defendants. 15
17 18 Before the Court is the parties’ June 5, 2020 Joint Motion to Amend Scheduling 19 Order. Dkt. No. 390. The parties report that the COVID-19 public emergency has 20 hampered their efforts to complete discovery in a timely fashion. Id. at 2. In particular, 21 the parties state that (1) many experts live outside the state and would be required to 22 travel to conduct site inspections and depositions, which the experts (at least two of 23 whom are over age 65) are unwilling to do; (2) of the numerous fact witness depositions 24 that must be completed, possibly half of those witnesses are over the age of 65 and thus 25 considered high-risk and may be unable or unwilling to be deposed (presumably in 26 person); and (3) counsel for the parties are under shelter-in-place orders which, despite 27 counsel’s diligence, has slowed their ability to conduct discovery and prepare for trial. 28 Id. at 5-6. Based on the foregoing, the parties request that all dates in the March 13, 2020 1 Scheduling Order [Dkt. No. 366] be extended by six months. Id. at 3. 2 The Court is mindful that COVID-19 public emergency has “been disruptive to 3 normal work routines” for many litigants. Id. at 6. However, the Court is also mindful of 4 its “responsibility” under Federal Rule of Civil Procedure 1 “to secure the just, speedy, 5 and inexpensive determination of every action and proceeding.” Malibu Textiles, Inc. v. 6 Label Lane Int’l, Inc., 922 F.3d 946, 955 (9th Cir.), cert. denied sub nom. H&M Hennes 7 & Mauritz, LP v. Malibu Textiles, Inc., 140 S. Ct. 456 (2019) (quoting Fed. R. Civ. P. 1). 8 This matter has been pending in this District since 2012, and the parties were previously 9 advised that discovery must proceed expeditiously. Granted, when this directive was 10 given, the shelter-in-place directive due to the COVID-19 pandemic had not yet been put 11 in place. Still, the Court doubts that the parties’ inability to timely complete discovery 12 can be blamed entirely on COVID-19. 13 The Court also notes that the parties’ request for an extension is replete with 14 generalities and speculation rather than specific details about what discovery can, and 15 cannot, be completed under current circumstances. See Dkt. No. 390 at 5-6; Dkt. No. 16 390-1 at 2-3 (same). The parties’ failure to provide the Court with specifics – despite 17 being explicitly requested to do so – leads the Court to conclude the parties should be 18 able to complete discovery more rapidly than their Joint Motion suggests. Further, it 19 does not appear that the parties have conducted any meaningful written discovery during 20 the three months since the Scheduling Order was issued on March 13, 2020 [Dkt. No. 21 366], as the parties acknowledge in their Joint Motion in which they represent that 22 “[w]hile the parties have propounded or will soon be propounding written discovery …” 23 Dkt. No. 390 at 3 (emphasis added). This suggests that the parties have failed to proceed 24 expeditiously with any meaningful discovery for the last several months, even the written 25 discovery that could have been pursued during the shelter-in-place period. 26 With respect to depositions and related discovery for both fact and expert 27 witnesses, the Court has knowledge of other cases in which depositions of individuals 28 who are elderly or otherwise at greater risk of developing COVID-19 have proceeded, 1 with stipulated procedures to modify the protocol for doing so. Indeed, as Judge Lopez 2 of this District recently observed, “attorneys and litigants are adapting to new ways to 3 practice law” in facing the challenges presented by the pandemic. See United States for 4 use & benefit of Chen v. K.O.O. Constr., Inc., No. 19CV1535-JAH-LL, 2020 WL 5 2631444, at *2 (S.D. Cal. May 8, 2020). Here, for example, if an elderly out-of-state 6 expert needs information which can only be elicited from a site inspection of conditions 7 at Lake San Marcos, the retaining party should consider how this function can be 8 delegated to a local consultant under the direction of the out-of-state expert, who can 9 thereby obtain the necessary information without the need to travel. Also, depositions 10 can be taken remotely through a myriad of secure virtual technologies, without the need 11 for counsel or the court reporter to be in the same room as the witness. These and other 12 creative approaches should be considered, and where appropriate, adopted. 13 Accordingly, while the Court will permit a short extension of time to complete fact 14 and expert discovery, the Court finds the parties have not shown good cause to extend 15 other pretrial deadlines, except as set forth below. 16 Based on the foregoing, and good cause appearing, IT IS HEREBY ORDERED: 17 1. All fact discovery shall be completed by all parties by December 18, 2020. 18 “Completed” means that all discovery under Rules 30-36 of the Federal Rules of Civil 19 Procedure, and discovery subpoenas under Rule 45, must be initiated a sufficient period 20 of time in advance of the cut-off date, so that it may be completed by the cut-off date, 21 taking into account the times for service, notice and response as set forth in the Federal 22 Rules of Civil Procedure. Counsel shall promptly and in good faith meet and confer 23 regarding all discovery disputes in compliance with Local Rule 26.1(a). The Court 24 expects counsel to make every effort to resolve all disputes without court intervention 25 through the meet and confer process. If the parties reach an impasse on any discovery 26 issue, counsel shall file an appropriate motion within the time limit and procedures 27 outlined in the undersigned magistrate judge’s chambers rules. A failure to comply in 28 this regard will result in a waiver of a party’s discovery issue. Absent an order of 1 the court, no stipulation continuing or altering this requirement will be recognized 2 by the court. 3 2. The parties shall designate their respective experts in writing by November 4 6, 2020. Pursuant to Fed. R. Civ. P. 26(a)(2)(A), the parties must identify any person 5 who may be used at trial to present evidence pursuant to Rules 702, 703 or 705 of the 6 Fed. R. Evid. This requirement is not limited to retained experts. The date for exchange 7 of rebuttal experts shall be November 20, 2020. The written designations shall include 8 the name, address and telephone number of the expert and a reasonable summary of the 9 testimony the expert is expected to provide. The list shall also include the normal rates 10 the expert charges for deposition and trial testimony. 11 3. By December 18, 2020, each party shall comply with the disclosure 12 provisions in Rule 26(a)(2)(A) and (B) of the Federal Rules of Civil Procedure. This 13 disclosure requirement applies to all persons retained or specially employed to provide 14 expert testimony, or whose duties as an employee of the party regularly involve the 15 giving of expert testimony.
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 CITIZENS DEVELOPMENT Case No.: 3:12-CV-334-GPC(KSC) CORPORATION, INC., 10 ORDER GRANTING IN PART AND Plaintiff, 11 DENYING IN PART JOINT MOTION v. TO AMEND SCHEDULING ORDER; 12 AMENDED SCHEDULING ORDER COUNTY OF SAN DIEGO, California 13 REGULATING DISCOVERY AND municipal corporation, et al., OTHER PRE-TRIAL PROCEEDINGS 14 Defendants. 15
17 18 Before the Court is the parties’ June 5, 2020 Joint Motion to Amend Scheduling 19 Order. Dkt. No. 390. The parties report that the COVID-19 public emergency has 20 hampered their efforts to complete discovery in a timely fashion. Id. at 2. In particular, 21 the parties state that (1) many experts live outside the state and would be required to 22 travel to conduct site inspections and depositions, which the experts (at least two of 23 whom are over age 65) are unwilling to do; (2) of the numerous fact witness depositions 24 that must be completed, possibly half of those witnesses are over the age of 65 and thus 25 considered high-risk and may be unable or unwilling to be deposed (presumably in 26 person); and (3) counsel for the parties are under shelter-in-place orders which, despite 27 counsel’s diligence, has slowed their ability to conduct discovery and prepare for trial. 28 Id. at 5-6. Based on the foregoing, the parties request that all dates in the March 13, 2020 1 Scheduling Order [Dkt. No. 366] be extended by six months. Id. at 3. 2 The Court is mindful that COVID-19 public emergency has “been disruptive to 3 normal work routines” for many litigants. Id. at 6. However, the Court is also mindful of 4 its “responsibility” under Federal Rule of Civil Procedure 1 “to secure the just, speedy, 5 and inexpensive determination of every action and proceeding.” Malibu Textiles, Inc. v. 6 Label Lane Int’l, Inc., 922 F.3d 946, 955 (9th Cir.), cert. denied sub nom. H&M Hennes 7 & Mauritz, LP v. Malibu Textiles, Inc., 140 S. Ct. 456 (2019) (quoting Fed. R. Civ. P. 1). 8 This matter has been pending in this District since 2012, and the parties were previously 9 advised that discovery must proceed expeditiously. Granted, when this directive was 10 given, the shelter-in-place directive due to the COVID-19 pandemic had not yet been put 11 in place. Still, the Court doubts that the parties’ inability to timely complete discovery 12 can be blamed entirely on COVID-19. 13 The Court also notes that the parties’ request for an extension is replete with 14 generalities and speculation rather than specific details about what discovery can, and 15 cannot, be completed under current circumstances. See Dkt. No. 390 at 5-6; Dkt. No. 16 390-1 at 2-3 (same). The parties’ failure to provide the Court with specifics – despite 17 being explicitly requested to do so – leads the Court to conclude the parties should be 18 able to complete discovery more rapidly than their Joint Motion suggests. Further, it 19 does not appear that the parties have conducted any meaningful written discovery during 20 the three months since the Scheduling Order was issued on March 13, 2020 [Dkt. No. 21 366], as the parties acknowledge in their Joint Motion in which they represent that 22 “[w]hile the parties have propounded or will soon be propounding written discovery …” 23 Dkt. No. 390 at 3 (emphasis added). This suggests that the parties have failed to proceed 24 expeditiously with any meaningful discovery for the last several months, even the written 25 discovery that could have been pursued during the shelter-in-place period. 26 With respect to depositions and related discovery for both fact and expert 27 witnesses, the Court has knowledge of other cases in which depositions of individuals 28 who are elderly or otherwise at greater risk of developing COVID-19 have proceeded, 1 with stipulated procedures to modify the protocol for doing so. Indeed, as Judge Lopez 2 of this District recently observed, “attorneys and litigants are adapting to new ways to 3 practice law” in facing the challenges presented by the pandemic. See United States for 4 use & benefit of Chen v. K.O.O. Constr., Inc., No. 19CV1535-JAH-LL, 2020 WL 5 2631444, at *2 (S.D. Cal. May 8, 2020). Here, for example, if an elderly out-of-state 6 expert needs information which can only be elicited from a site inspection of conditions 7 at Lake San Marcos, the retaining party should consider how this function can be 8 delegated to a local consultant under the direction of the out-of-state expert, who can 9 thereby obtain the necessary information without the need to travel. Also, depositions 10 can be taken remotely through a myriad of secure virtual technologies, without the need 11 for counsel or the court reporter to be in the same room as the witness. These and other 12 creative approaches should be considered, and where appropriate, adopted. 13 Accordingly, while the Court will permit a short extension of time to complete fact 14 and expert discovery, the Court finds the parties have not shown good cause to extend 15 other pretrial deadlines, except as set forth below. 16 Based on the foregoing, and good cause appearing, IT IS HEREBY ORDERED: 17 1. All fact discovery shall be completed by all parties by December 18, 2020. 18 “Completed” means that all discovery under Rules 30-36 of the Federal Rules of Civil 19 Procedure, and discovery subpoenas under Rule 45, must be initiated a sufficient period 20 of time in advance of the cut-off date, so that it may be completed by the cut-off date, 21 taking into account the times for service, notice and response as set forth in the Federal 22 Rules of Civil Procedure. Counsel shall promptly and in good faith meet and confer 23 regarding all discovery disputes in compliance with Local Rule 26.1(a). The Court 24 expects counsel to make every effort to resolve all disputes without court intervention 25 through the meet and confer process. If the parties reach an impasse on any discovery 26 issue, counsel shall file an appropriate motion within the time limit and procedures 27 outlined in the undersigned magistrate judge’s chambers rules. A failure to comply in 28 this regard will result in a waiver of a party’s discovery issue. Absent an order of 1 the court, no stipulation continuing or altering this requirement will be recognized 2 by the court. 3 2. The parties shall designate their respective experts in writing by November 4 6, 2020. Pursuant to Fed. R. Civ. P. 26(a)(2)(A), the parties must identify any person 5 who may be used at trial to present evidence pursuant to Rules 702, 703 or 705 of the 6 Fed. R. Evid. This requirement is not limited to retained experts. The date for exchange 7 of rebuttal experts shall be November 20, 2020. The written designations shall include 8 the name, address and telephone number of the expert and a reasonable summary of the 9 testimony the expert is expected to provide. The list shall also include the normal rates 10 the expert charges for deposition and trial testimony. 11 3. By December 18, 2020, each party shall comply with the disclosure 12 provisions in Rule 26(a)(2)(A) and (B) of the Federal Rules of Civil Procedure. This 13 disclosure requirement applies to all persons retained or specially employed to provide 14 expert testimony, or whose duties as an employee of the party regularly involve the 15 giving of expert testimony. Except as provided in the paragraph below, any party 16 that fails to make these disclosures shall not, absent substantial justification, be 17 permitted to use evidence or testimony not disclosed at any hearing or at the time of 18 trial. In addition, the Court may impose sanctions as permitted by Fed. R. Civ. P. 19 37(c). 20 4. Any party shall supplement its disclosure regarding contradictory or rebuttal 21 evidence under Fed. R. Civ. P. 26(a)(2)(D) and 26(e) by January 15, 2021. 22 5. All expert discovery shall be completed by all parties by April 2, 2021. The 23 parties shall comply with the same procedures set forth in the paragraph governing fact 24 discovery. Failure to comply with this section or any other discovery order of the court 25 may result in the sanctions provided for in Fed. R. Civ. P. 37, including a prohibition on 26 the introduction of experts or other designated matters in evidence. 27 6. A Mandatory Settlement Conference shall be conducted on April 14, 2021 28 at 2:00 p.m. in the chambers of Magistrate Judge Karen S. Crawford. Counsel or any 1 party representing himself or herself shall lodge confidential settlement briefs directly to 2 chambers by April 7, 2021. All parties are ordered to read and to fully comply with the 3 Chamber Rules of the assigned magistrate judge. 4 7. All other pretrial motions, including those addressing Daubert issues related 5 to dispositive motions must be filed by April 30, 2021. Pursuant to Honorable Gonzalo 6 P. Curiel’s Civil Pretrial & Trial Procedures, all motions for summary judgment shall be 7 accompanied by a separate statement of undisputed material facts. Any opposition to a 8 summary judgment motion shall include a response to the separate statement of 9 undisputed material facts. Counsel for the moving party must obtain a motion hearing 10 date from the law clerk of the judge who will hear the motion. Motion papers MUST be 11 filed and served the same day of obtaining a motion hearing date from chambers. A 12 briefing schedule will be issued once a motion has been filed. The time between the date 13 you request a motion date and the hearing date may vary. Please plan accordingly. 14 Failure to make a timely request for a motion date may result in the motion not being 15 heard. 16 8. Pursuant to Honorable Gonzalo P. Curiel’s Civil Pretrial & Trial Procedures, 17 the parties are excused from the requirement of Local Rule 16.1(f)(2)(a); no Memoranda 18 of Law or Contentions of Fact are to be filed. 19 9. Counsel shall comply with the pre-trial disclosure requirements of Fed. R. 20 Civ. P. 26(a)(3) by July 30, 2021. Failure to comply with these disclosure requirements 21 could result in evidence preclusion or other sanctions under Fed. R. Civ. P. 37. 22 10. Counsel shall meet and take the action required by Local Rule 16.1(f)(4) by 23 August 6, 2021. At this meeting, counsel shall discuss and attempt to enter into 24 stipulations and agreements resulting in simplification of the triable issues. Counsel shall 25 exchange copies and/or display all exhibits other than those to be used for impeachment. 26 The exhibits shall be prepared in accordance with Local Rule 16.1(f)(4)(c). Counsel shall 27 note any objections they have to any other parties’ Pretrial Disclosures under Fed. R. Civ. 28 /// 1 P. 26(a)(3). Counsel shall cooperate in the preparation of the proposed pretrial 2 conference order. 3 11. Counsel for plaintiff will be responsible for preparing the pretrial order and 4 arranging the meetings of counsel pursuant to Civil Local Rule 16.1(f). By August 13, 5 2021, plaintiff’s counsel must provide opposing counsel with the proposed pretrial order 6 for review and approval. Opposing counsel must communicate promptly with plaintiff’s 7 attorney concerning any objections to form or content of the pretrial order, and both 8 parties shall attempt promptly to resolve their differences, if any, concerning the order. 9 12. The Proposed Final Pretrial Conference Order, including objections to any 10 other parties’ Fed. R. Civ. P. 26(a)(3) Pretrial Disclosures shall be prepared, served and 11 lodged with the assigned district judge by August 20, 2021, and shall be in the form 12 prescribed in and comply with Local Rule 16.1(f)(6). 13 13. The final Pretrial Conference is scheduled on the calendar of the Honorable 14 Gonzalo P. Curiel on May 7, 2021 is continued to August 27, 2021 at 1:30 p.m.. The 15 Court will set a trial date during the pretrial conference. The Court will also schedule a 16 motion in limine hearing date during the pretrial conference. 17 14. The parties must review the chambers’ rules for the assigned district judge 18 and magistrate judge. 19 15. A post trial settlement conference before a magistrate judge may be held 20 within 30 days of verdict in the case. 21 16. The dates and times set forth herein will not be modified except for good 22 cause shown. 23 17. Briefs or memoranda in support of or in opposition to all motions noticed for 24 the same motion day shall not exceed twenty-five (25) pages in length, per party, without 25 leave of the judge who will hear the motion. No reply memorandum shall exceed ten 26 (10) pages without leave of a district court judge. Briefs and memoranda exceeding ten 27 (10) pages in length shall have a table of contents and a table of authorities cited. 28 /// 1 18. Plaintiff’s counsel shall serve a copy of this order on all parties that enter 2 || this case hereafter. 3 IT IS SO ORDERED. 4 ||Dated: June 15, 2020 □□ >)
6 Hori. Karen S. Crawford , United States Magistrate Judge
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