1 XAVIER BECERRA, State Bar No. 118517 Panos Lagos, Esq. (SBN 61821) Attorney General of California LAW OFFICES OF PANOS LAGOS 2 PETER A. MESHOT, State Bar No. 117061 5032 Woodminster Lane Supervising Deputy Attorney General Oakland, CA 94602-2614 3 AMIE C. MCTAVISH, State Bar No. 242372 Tel: 510.530.4078 DIANA ESQUIVEL, State Bar No. 202954 Fax: 510.530.4725 4 Deputy Attorney General E-mail: panos@panoslagoslaw.com 1300 I Street, Suite 125 5 P.O. Box 944255 Sanjay S. Schmidt (SBN 247475) Sacramento, CA 94244-2550 LAW OFFICE OF SANJAY S. SCHMIDT 6 Telephone: (916) 210-7320 1388 Sutter Street, Suite 810 Facsimile: (916) 322-8288 San Francisco, CA 94109 7 E-mail: Diana.Esquivel@doj.ca.gov Tel: (415) 563-8583 Fax: (415) 223-9717 8 Attorneys for Defendant Jimenez E-mail: ss@sanjayschmidtlaw.com
9 Attorneys for Plaintiffs J. A. J. and Teresa Gonzalez-Velazquez 10 11 IN THE UNITED STATES DISTRICT COURT 12 FOR THE EASTERN DISTRICT OF CALIFORNIA 13 FRESNO DIVISION 14 15 J.A.J., et al. No. 1:18-cv-01138 DAD-SKO 16 Plaintiffs, STIPULATION AND ORDER TO 17 MODIFY SCHEDULING ORDER TO v. EXTEND THE NON-EXPERT 18 DISCOVERY DEADLINE
19 EFRAIN JIMENEZ, et al., (Doc. 47)
20 Defendants. Action Filed: August 22, 2018 21 22 Under Federal Rule of Civil Procedure 16(b)(4) and Local Rule 143, the parties, through 23 their respective counsel of record, stipulate and request to modify the April 15, 2020 Amended 24 Scheduling Order (ECF No. 46) to extend the deadline by when non-expert discovery must be 25 completed. The current deadline to complete non-expert discovery is January 29, 2021. (ECF No. 26 46.) The parties seek to continue the deadline to May 7, 2021, when expert discovery closes. 27 Good cause exists to grant this stipulated request because, despite the parties’ diligence, they will 28 not be able to complete fact discovery by the current deadline due to the ongoing COVID-19 1 pandemic and resulting restrictions. This requested modification will not affect any other 2 scheduling deadline. 3 When an act must be done within a specified time, the court may, for good cause, extend 4 the time with or without motion or notice if the court acts, or if a request is made, before the 5 original time expires. Fed. R. Civ. P. 6(b)(1)(A). A scheduling order may be modified only upon 6 a showing of good cause and by leave of Court. Id. 16(b)(4); see, e.g., Johnson v. Mammoth 7 Recreations, Inc., 975 F.2d 604, 609 (describing the factors a court should consider in ruling on 8 such a motion). In considering whether a party moving for a schedule modification has good 9 cause, the Court primarily focuses on the diligence of the party seeking the modification. 10 Johnson, 975 F.2d at 609 (citing Fed. R. Civ. P. 16 advisory committee’s notes of 1983 11 amendment). “The district court may modify the pretrial schedule ‘if it cannot reasonably be met 12 despite the diligence of the party seeking the amendment.’” Id. (quoting Fed. R. Civ. P. 16 13 advisory committee notes of 1983 amendment). 14 On April 5, 2019, the Court entered its initial Scheduling Order. (ECF No. 23.) Due to the 15 onset of the COVID-19 pandemic, the parties requested, and the Court granted, an extension of 16 all the scheduling deadlines and trial on April 20, 2020. (ECF No. 46.) The Amended Scheduling 17 Order required the parties to complete non-expert discovery by January 29, 2021. (Id.) It should 18 be noted that, at that time, the full scope and expected duration of the pandemic and concomitant 19 public health measures and restrictions were unknown by public health and government officials, 20 let alone the parties and their respective counsel. As such, the Amended Scheduling Order 21 required the parties to complete non-expert discovery by January 29, 2021. (Id.) Distribution of 22 the vaccines did not commence until recently. At the present time, it is not yet known when the 23 pandemic-related restrictions can be lifted. Nevertheless, the parties have engaged in extensive 24 written discovery, including initial disclosures, interrogatories, and requests for production of 25 documents. The parties subpoenaed and obtained relevant records from third parties. Plaintiffs’ 26 and the Guardian Ad Litem’s depositions have been taken and completed. Defendant’s deposition 27 was scheduled for January 7, 2021, but due to unexpected circumstances, it was rescheduled to 28 1 January 22, 2021. Despite the parties’ diligence in obtaining discovery, there is third-party 2 discovery that still needs to be completed. 3 The parties seek to depose several third-party witnesses, but will not be able to complete 4 those depositions in the time remaining before the close of non-expert discovery. These witnesses 5 include five witnesses from the Branch & Vine where the incident occurred, Decedent’s siblings, 6 and Madera County Sheriff’s Person Most Knowledge concerning the production of a video of 7 the shooting incident. 8 Defense counsel has been attempting to secure the depositions of several witnesses from the 9 Branch & Vine for over a month. She sought their cooperation to avoid personal service of 10 subpoenas and in-person depositions, given the Governor’s COVID-19 regional stay-at-home 11 orders for the Central Valley. However, only two witnesses have agreed to appear for their remote 12 (Zoom) depositions; the others have not returned defense counsel’s multiple voicemail messages. 13 Defense counsel must now have deposition subpoenas served on the remaining witnesses, which 14 will likely trigger a request for a remote deposition. It is unlikely that the subpoenas can be served 15 and the depositions completed before the January 29 deadline. 16 Following Plaintiffs’ depositions, defense counsel identified a couple of Decedent’s 17 siblings that have material information related to Plaintiffs’ Fourteenth Amendment claims. The 18 siblings live in Southern California and the Central Valley. Although Plaintiffs’ counsel do not 19 represent the siblings, they have offered to assist in obtaining their cooperation to avoid personal 20 service of subpoenas due to the pandemic. 21 In response to Defendant’s subpoena, the Madera County Sheriff’s Department produced a 22 video recording taken at the Branch & Vine of the shooting incident. However, the recording 23 appears to be incomplete or “spliced.” The parties seek to ascertain whether the original recording 24 is similarly incomplete or if portions were inadvertently omitted in the copy produced in response 25 to the subpoena. This video is the only piece of evidence that depicts the actual shooting at issue 26 in this lawsuit, and it is therefore pertinent that a complete copy be produced. 27 Due to the ongoing national pandemic, scheduling and taking depositions is an onerous and 28 time-consuming task. For this reason, the parties need more time to complete fact discovery, and 1 seek an extension of the January 29 deadline to complete non-expert discovery. The parties do not 2 believe that this request will affect any other deadline in the Amended Scheduling Order because, 3 other than the video recording, the outstanding discovery is unlikely to be relevant to the use-of- 4 force expert opinions that are anticipated in this case. Good cause, therefore, exists to continue 5 the deadline to complete non-expert discovery to May 7, 2021—the same deadline to complete 6 expert discovery. 7 IT IS SO STIPULATED.
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1 XAVIER BECERRA, State Bar No. 118517 Panos Lagos, Esq. (SBN 61821) Attorney General of California LAW OFFICES OF PANOS LAGOS 2 PETER A. MESHOT, State Bar No. 117061 5032 Woodminster Lane Supervising Deputy Attorney General Oakland, CA 94602-2614 3 AMIE C. MCTAVISH, State Bar No. 242372 Tel: 510.530.4078 DIANA ESQUIVEL, State Bar No. 202954 Fax: 510.530.4725 4 Deputy Attorney General E-mail: panos@panoslagoslaw.com 1300 I Street, Suite 125 5 P.O. Box 944255 Sanjay S. Schmidt (SBN 247475) Sacramento, CA 94244-2550 LAW OFFICE OF SANJAY S. SCHMIDT 6 Telephone: (916) 210-7320 1388 Sutter Street, Suite 810 Facsimile: (916) 322-8288 San Francisco, CA 94109 7 E-mail: Diana.Esquivel@doj.ca.gov Tel: (415) 563-8583 Fax: (415) 223-9717 8 Attorneys for Defendant Jimenez E-mail: ss@sanjayschmidtlaw.com
9 Attorneys for Plaintiffs J. A. J. and Teresa Gonzalez-Velazquez 10 11 IN THE UNITED STATES DISTRICT COURT 12 FOR THE EASTERN DISTRICT OF CALIFORNIA 13 FRESNO DIVISION 14 15 J.A.J., et al. No. 1:18-cv-01138 DAD-SKO 16 Plaintiffs, STIPULATION AND ORDER TO 17 MODIFY SCHEDULING ORDER TO v. EXTEND THE NON-EXPERT 18 DISCOVERY DEADLINE
19 EFRAIN JIMENEZ, et al., (Doc. 47)
20 Defendants. Action Filed: August 22, 2018 21 22 Under Federal Rule of Civil Procedure 16(b)(4) and Local Rule 143, the parties, through 23 their respective counsel of record, stipulate and request to modify the April 15, 2020 Amended 24 Scheduling Order (ECF No. 46) to extend the deadline by when non-expert discovery must be 25 completed. The current deadline to complete non-expert discovery is January 29, 2021. (ECF No. 26 46.) The parties seek to continue the deadline to May 7, 2021, when expert discovery closes. 27 Good cause exists to grant this stipulated request because, despite the parties’ diligence, they will 28 not be able to complete fact discovery by the current deadline due to the ongoing COVID-19 1 pandemic and resulting restrictions. This requested modification will not affect any other 2 scheduling deadline. 3 When an act must be done within a specified time, the court may, for good cause, extend 4 the time with or without motion or notice if the court acts, or if a request is made, before the 5 original time expires. Fed. R. Civ. P. 6(b)(1)(A). A scheduling order may be modified only upon 6 a showing of good cause and by leave of Court. Id. 16(b)(4); see, e.g., Johnson v. Mammoth 7 Recreations, Inc., 975 F.2d 604, 609 (describing the factors a court should consider in ruling on 8 such a motion). In considering whether a party moving for a schedule modification has good 9 cause, the Court primarily focuses on the diligence of the party seeking the modification. 10 Johnson, 975 F.2d at 609 (citing Fed. R. Civ. P. 16 advisory committee’s notes of 1983 11 amendment). “The district court may modify the pretrial schedule ‘if it cannot reasonably be met 12 despite the diligence of the party seeking the amendment.’” Id. (quoting Fed. R. Civ. P. 16 13 advisory committee notes of 1983 amendment). 14 On April 5, 2019, the Court entered its initial Scheduling Order. (ECF No. 23.) Due to the 15 onset of the COVID-19 pandemic, the parties requested, and the Court granted, an extension of 16 all the scheduling deadlines and trial on April 20, 2020. (ECF No. 46.) The Amended Scheduling 17 Order required the parties to complete non-expert discovery by January 29, 2021. (Id.) It should 18 be noted that, at that time, the full scope and expected duration of the pandemic and concomitant 19 public health measures and restrictions were unknown by public health and government officials, 20 let alone the parties and their respective counsel. As such, the Amended Scheduling Order 21 required the parties to complete non-expert discovery by January 29, 2021. (Id.) Distribution of 22 the vaccines did not commence until recently. At the present time, it is not yet known when the 23 pandemic-related restrictions can be lifted. Nevertheless, the parties have engaged in extensive 24 written discovery, including initial disclosures, interrogatories, and requests for production of 25 documents. The parties subpoenaed and obtained relevant records from third parties. Plaintiffs’ 26 and the Guardian Ad Litem’s depositions have been taken and completed. Defendant’s deposition 27 was scheduled for January 7, 2021, but due to unexpected circumstances, it was rescheduled to 28 1 January 22, 2021. Despite the parties’ diligence in obtaining discovery, there is third-party 2 discovery that still needs to be completed. 3 The parties seek to depose several third-party witnesses, but will not be able to complete 4 those depositions in the time remaining before the close of non-expert discovery. These witnesses 5 include five witnesses from the Branch & Vine where the incident occurred, Decedent’s siblings, 6 and Madera County Sheriff’s Person Most Knowledge concerning the production of a video of 7 the shooting incident. 8 Defense counsel has been attempting to secure the depositions of several witnesses from the 9 Branch & Vine for over a month. She sought their cooperation to avoid personal service of 10 subpoenas and in-person depositions, given the Governor’s COVID-19 regional stay-at-home 11 orders for the Central Valley. However, only two witnesses have agreed to appear for their remote 12 (Zoom) depositions; the others have not returned defense counsel’s multiple voicemail messages. 13 Defense counsel must now have deposition subpoenas served on the remaining witnesses, which 14 will likely trigger a request for a remote deposition. It is unlikely that the subpoenas can be served 15 and the depositions completed before the January 29 deadline. 16 Following Plaintiffs’ depositions, defense counsel identified a couple of Decedent’s 17 siblings that have material information related to Plaintiffs’ Fourteenth Amendment claims. The 18 siblings live in Southern California and the Central Valley. Although Plaintiffs’ counsel do not 19 represent the siblings, they have offered to assist in obtaining their cooperation to avoid personal 20 service of subpoenas due to the pandemic. 21 In response to Defendant’s subpoena, the Madera County Sheriff’s Department produced a 22 video recording taken at the Branch & Vine of the shooting incident. However, the recording 23 appears to be incomplete or “spliced.” The parties seek to ascertain whether the original recording 24 is similarly incomplete or if portions were inadvertently omitted in the copy produced in response 25 to the subpoena. This video is the only piece of evidence that depicts the actual shooting at issue 26 in this lawsuit, and it is therefore pertinent that a complete copy be produced. 27 Due to the ongoing national pandemic, scheduling and taking depositions is an onerous and 28 time-consuming task. For this reason, the parties need more time to complete fact discovery, and 1 seek an extension of the January 29 deadline to complete non-expert discovery. The parties do not 2 believe that this request will affect any other deadline in the Amended Scheduling Order because, 3 other than the video recording, the outstanding discovery is unlikely to be relevant to the use-of- 4 force expert opinions that are anticipated in this case. Good cause, therefore, exists to continue 5 the deadline to complete non-expert discovery to May 7, 2021—the same deadline to complete 6 expert discovery. 7 IT IS SO STIPULATED. 8 Dated: January 13, 2021 Respectfully submitted, 9
10 XAVIER BECERRA Attorney General of California 11 PETER A. MESHOT Supervising Deputy Attorney General 12 13 /s/ Diana Esquivel 14 DIANA ESQUIVEL AMIE C. MCTAVISH 15 Deputy Attorney General Attorneys for Defendant Jimenez 16 Dated: January 13, 2021 LAW OFFICES OF PANOS LAGOS 17 18 /s/ Panos Lagos (as authorized 1/13/21) 19 PANOS LAGOS Attorneys for Plaintiffs J. A. J. and Teresa 20 Gonzalez-Velazquez
21 Dated: January 13, 2021 LAW OFFICE OF SANJAY S. SCHMIDT 22 23 /s/ Sanjay S. Schmidt (as authorized 1/13/21) 24 SANJAY S. SCHMIDT Attorneys for Plaintiffs J. A. J. and Teresa 25 Gonzalez-Velazquez
26 SA2018302522 27 34735401.docx
28 1 ORDER 2 Good cause appearing, the parties’ above-stipulated request to modify the April 15, 2020 3 Amended Scheduling Order (Doc. 47) is GRANTED. 4 The parties shall complete non-expert discovery by no later than May 7, 2021. In all other 5 respects, the April 15, 2020 Amended Scheduling Order (Doc. 46) remains in effect.
7 IT IS SO ORDERED.
8 Dated: January 14, 2021 /s/ Sheila K. Oberto . 9 UNITED STATES MAGISTRATE JUDGE
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