allowing experts to rely upon Exclude evidence of inadmissible hearsay
How later courts described this case
- allowing experts to rely upon Exclude evidence of inadmissible hearsay
Written by the judges who cited it.
The opinion
1
2
3
4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6
7 FRANCIS MCARTHUR, Case No. 21-cv-09412-KAW
8 Plaintiff,
PRETRIAL CONFERENCE
9 v. TENTATIVE RULINGS
10 ALAMEDA COUNTY PUBLIC
DEFENDER'S OFFICE, et al.,
11
Defendants.
12
13 I. MOTIONS IN LIMINE
14 Relevant evidence is any evidence that has any tendency to make a fact that is of
15 consequence to the determination of the action more or less probable than it would be without the
16 evidence. Fed. R. Evid. 401. The Court has discretion to “exclude relevant evidence if its
17 probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the
18 issue, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative
19 evidence.”
20
21 MIL Motion Ruling Reason/Explanation
22
Mr. Aye is not opining as to the ultimate
23 legal conclusion, i.e., whether Plaintiff
suffered a due process violation.
24 Exclude expert Having reviewed the opinions Plaintiff
P1 testimony of Michael J. DENY asserts are unreliable, the Court finds
25 Aye. that Mr. Aye adequately explains why
they are supported and/or Plaintiff’s
26
challenges go to weight rather than
27 admissibility.
1 To the extent Plaintiff identifies three
specific categories of evidence (i.e.,
2 other Coalinga patients bringing
unfounded Vasquez claims, other SVP
3
clients not wanting to come to court, and
4 many SVPs making a conscious
decision to delay their trial), Defendants
5 do not oppose. The Court denies the
motion in limine as to any unspecified
6 categories of evidence, as the Court has
Exclude
GRANT IN no information to determine whether
7 P2 “generalizations”
PART such evidence should or should not be
about SVP clients.
8 excluded. See Shenwick v. Twitter, Inc.,
No. 16-cv-05314-JST, 2021 U.S. Dist.
9 LEXIS 66297, at *34-35 (N.D. Cal.
Mar. 31, 2021) (“Plaintiffs are correct
10 that, with some exceptions, Defendants
fail to identify precisely which exhibits
11
should be excluded. Therefore, the
12 Court denies the motion as to any
exhibits other than those identified in
13 it.”).
14 Such evidence goes to the
reasonableness of the strategy of
15
Plaintiff’s public defenders to delay
16 trial, particularly as such evidence
would have been used against Plaintiff
17 at a SVP trial prior to 2016. See People
v. Dean, 174 Cal. App. 4th 186, 193
18 (2009) (allowing experts to rely upon
Exclude evidence of
inadmissible hearsay). Even after
19 P3 Plaintiff’s other crimes DENY
People v. Sanchez, courts have
and bad acts.
20 permitted experts to testify as to prior
bad acts that could be proven through
21 documentary evidence, such as
probation and sentencing reports or
22 party admissions. See People v.
Burroughs, 6 Cal. App. 5th 378, 403
23
(2016); People v. Orey, 63 Cal. App. 5th
24 529, 554 (2021).
25 Foundation can be established through
Exclude testimony of testimony by Mr. Ayers or the public
26 state-wide or common defenders’ personal knowledge. Such
P4
practice of delaying
DENY
evidence is relevant to whether the delay
27
SVP trials. strategy was reasonable. This issue is
1 P5 Exclude evidence of Such evidence is relevant to the
continuances after reasonableness of the strategy of
2 Plaintiff’s counsel was Plaintiff’s public defenders to delay
DENY
appointed as conflict trial. Plaintiff provides no legal
3
counsel. authority or analysis in support of this
4 motion in limine.
5 P6 Exclude evidence Plaintiff provides no legal authority or
produced by Coalinga DENY analysis, and fails to identify the
6 not in Defendant’s file. evidence at issue.
7 P7 Exclude evidence that
would “elicit Plaintiff provides no legal authority or
8
sympathy” for DENY analysis, and fails to identify the
9 Plaintiff’s public evidence at issue.
defenders.
10
Exclude public
11 defender testimony of Plaintiff fails to identify the evidence at
P8
facts they do not
DENY issue, and it is not clear that this is an
12 issue. Thus, motion appears premature.
remember.
13
Exclude evidence that
14 Plaintiff was not found Plaintiff provides no legal authority or
P9
incompetent to stand
DENY
analysis.
15 trial in criminal cases.
16 Defendants fail to identify the evidence
Exclude evidence of
at issue. Issue is moot because parties
17 D1 customs, pattern, and DENY
have already agreed not to present
practices.
18 evidence related to supervisory liability.
19 Defendants fail to identify the evidence
Exclude reference to at issue. Issue is moot because parties
20 D2 other civil suits. DENY have already agreed not to present
information from other Vasquez cases.
21
22 Exclude habeas corpus Defendants fail to identify the evidence
D3 decisions in other DENY
or expert opinions at issue.
23 cases.
24 Exclude evidence of
D4 subsequent remedial GRANT Plaintiff does not oppose.
25
measures.
26
Exclude expert GRANT IN Mr. Kraft may testify as to whether the
27 D5 testimony of Rudy PART, DENY motions filed by Plaintiff’s public
defenders were unlikely to succeed, as
case authority and practices by other
1
attorneys. Mr. Kraft may not testify as
2 to whether Plaintiff’s public defenders
violated his due process rights because
3 this is the ultimate issue of law that a
jury must decide. Mr. Kraft may not
4 testify as to the professional standard of
care and whether Plaintiff’s public
5
defenders met that standard of care
6 because Mr. Kraft has not demonstrated
he is qualified to opine on this issue,
7 given his lack of experience with SVP
trials and failure to explain why the
8 standards he applies would be the
applicable standard of care. Mr. Kraft
9
may not testify as to whether Plaintiff’s
10 public defenders ensured Coalinga
properly accommodated Plaintiff’s
11 intellectual disabilities, whether there
was a breakdown in the Alameda
12 County Public Defender’s Office based
on the workload, and whether Plaintiff’s
13
public defenders did not understand
14 their obligations to their client based on
their failure to obtain a guardian ad
15 litem. These opinions are not
adequately supported and therefore
16 unreliable. Finally, Mr. Kraft may not
testify as to customs and practices
17
because Monell liability has been
18 bifurcated.
19 Evidence that is related to ineffective
assistance of counsel is not
20 automatically irrelevant to the due
Exclude evidence
process inquiry, including questions of
21 D6 related to ineffective DENY
the reason for the delay, Plaintiff’s
assistance of counsel.
22 assertion of his right, and whether the
strategy chosen by Plaintiff’s public
23 defenders was reasonable.
24 Exclude evidence of
D7
other SVP cases.
GRANT Plaintiff does not oppose.
25
26 II. EVIDENTIARY ISSUES
27 A. Plaintiff’s Objections
1 Witness/Evidence Ruling Reason/Explanation
2
A CV is hearsay. See Mahnke v. Wash. Metro.
3 Area Transit Auth., 821 F. Supp. 2d 125, 154
(D.D.C. 2011). This does not prohibit an expert
4 witness from “testif[ying] to each of the points
on his c.v.,” such that “exclusion serves little
5 purpose,” or from parties “routinely
stipulat[ing] to the admissibility of curriculum
6
Exhibit 1 (Michael Aye vitae for reasons of common sense.” Alexie v.
7 CV and Expert Report) SUSTAIN United States, No. 3:05-cv-00297 JWS, 2009
U.S. Dist. LEXIS 4103, at *2 (D. Alaska Jan.
8 21, 2009); Colon v. Hosp. Hermanos Melendez,
Inc., No. 3:19-cv-01797-JAW, 2023 U.S. Dist.
9 LEXIS 7012, at *6 (D.P.R. Jan. 13, 2023).
10 “Generally, expert reports are inadmissible
hearsay.” Salgado v. Iqvia, Inc., 459 F. Supp.
11 3d 1318, 1327 (S.D. Cal. 2020).
12 The exhibits are not being offered by a retained
expert or being used for the truth of the matter
13
therein, but as evidence of the information
14 Exhibits 2-6 (2007 Mark before Plaintiff’s public defenders when
Koetting SVP strategizing about Plaintiff’s case. Thus, such
15 Evaluation, 2007 Mark evidence goes to whether the strategy employed
Miculian SVP by Plaintiff’s public defenders was reasonable.
16
Evaluation, 2011 Mark Such evidence also goes to the fourth Barker
17 Miculian SVP OVERRULE factor of prejudice, as the evaluations may
Evaluation, 2011 affect whether Plaintiff was prejudiced by the
18 Michael Selby SVP failure to go to trial. See Camacho v. Superior
Evaluation, 2012 Carol Court, 15 Cal. 5th 354, 392 (2023) (explaining
19 Murphy SVP that prejudice is less likely to result purely as a
Evaluation) function of time, as a SVP trial jury must
20
consider the most recent evidence and expert
21 evaluations to determine if an individual
qualifies as an SVP at the time of trial).
22
The exhibits are not being offered by a retained
23 expert or being used for the truth of the matter
Exhibits 7-8 (2020
therein. While the evaluations were made after
24 Charles Flinton SVP
the Alameda County Public Defender’s Office
Evaluation, 2020 Mark OVERRULE
25 Miculian SVP declared a conflict, they still go to the fourth
Barker factor of prejudice, as the evaluations
Evaluation Report)
26 may affect whether Plaintiff was prejudiced by
the previous failure to go to trial.
27
Notes) on hearsay exceptions. The exhibit may be
1
admitted if witness is able to demonstrate that it
2 falls within an exception, i.e., it was a present
sense impression made while or immediately
3 after perception (Rule 803(1)), it is a recorded
recollection on a matter the witness no longer
4 recalls well enough (Rule 803(5)), or is a record
of an event where the record was kept in the
5
course of a regularly conducted activity and the
6 making of the record was a regular practice of
that activity (Rule 803(6)).
7
Defendants will need to substantiate the hearsay
8 exceptions at the pretrial conference.
9 Foundation can be established by the witness, as
it is correspondence he sent or received.
10
The May 10, 2002 letter authored by Plaintiff
11 is admissible as opposing party’s statement.
The Court has insufficient information to
12
OVERRULE determine how the remaining correspondence is
13 Exhibit 10 (Bryon IN PART, being offered for a non-hearsay purpose. The
Brown Correspondence) DEFER IN Court has insufficient information to determine
14 PART that the exhibit is admissible based on hearsay
exceptions. The exhibit may be admitted if
15 Defendants establish a non-hearsay purpose or
the witness demonstrates that it falls within an
16
exception.
17 Defendants will need to substantiate the hearsay
exceptions at the pretrial conference.
18
19 The court has insufficient information to
determine that the exhibit is admissible based
20 on hearsay exceptions. The exhibit may be
Exhibit 12 (David Feld DEFER admitted if witness is able to demonstrate that it
21 Notes) falls within an exception.
22 Defendants will need to substantiate the hearsay
exceptions at the pretrial conference.
23
Foundation can be established by the witness, as
24 it is correspondence he sent.
25 The Court has insufficient information to
Exhibit 13 (David Feld
DEFER determine how the correspondence is being
26 Correspondence) offered for a non-hearsay purpose or is
admissible based on hearsay exceptions. The
27
exhibit may be admitted if Defendants establish
demonstrates that it falls within an exception.
1
Defendants will need to substantiate the hearsay
2 exceptions at the pretrial conference.
3 The court has insufficient information to
determine that the exhibit is admissible based
4
on hearsay exceptions. The exhibit may be
5 Exhibit 15 (Margo DEFER admitted if witness is able to demonstrate that it
George Notes) falls within an exception.
6
Defendants will need to substantiate the hearsay
7 exceptions at the pretrial conference.
8 Foundation can be established by the witness, as
it is correspondence she sent.
9
The Court has insufficient information to
10 determine how the correspondence is being
Exhibit 16 (Margo offered for a non-hearsay purpose or is
11 George DEFER admissible based on hearsay exceptions. The
Correspondence) exhibit may be admitted if Defendants establish
12
a non-hearsay purpose or the witness
13 demonstrates that it falls within an exception.
Defendants will need to substantiate the hearsay
14
exceptions at the pretrial conference.
15
The court has insufficient information to
16 determine that the exhibit is admissible based
on hearsay exceptions. The exhibit may be
17 Exhibit 18 (Sachiel DEFER admitted if witness is able to demonstrate that it
Slavin Notes) falls within an exception.
18
Defendants will need to substantiate the hearsay
19 exceptions at the pretrial conference.
20 Foundation can be established by the witness, as
it is correspondence he sent.
21
The Court has insufficient information to
22 determine how the correspondence is being
offered for a non-hearsay purpose or is
23 Exhibit 19 (Sachiel
DEFER admissible based on hearsay exceptions. The
Slavin Correspondence)
24 exhibit may be admitted if Defendants establish
a non-hearsay purpose or the witness
25 demonstrates that it falls within an exception.
Defendants will need to substantiate the hearsay
26
exceptions at the pretrial conference.
27
Exhibit 21 (Coalinga OVERRULE Relevant to Plaintiff’s arguments that he did not
Client Trust Account) establishing defenders ignored him. Falls under hearsay
1
foundation) exception for records of a regularly conducted
2 activity.
3 Exhibits 22-24 To the extent Plaintiff relies on his MIL No. 3
(Coalinga Hospital and 6, both are denied. Relevant to whether the
4 Records: Police Reports, strategy of Plaintiff’s public defenders was
Coalinga Hospital reasonable and Barker factors, including the
5
Records: Special OVERRULE reason for the delay and whether the delay was
6 Incident Report Log; prejudicial. Evidence is not offered for the truth
Coalinga Hospital of the statements therein, but for the effect on
7 Records: Treatment Plaintiff’s public defenders in determining
Plans) strategy.
8
Documents produced in August 2022, prior to
9 the close of fact discovery in July 2023.
OVERRULE Exhibits are not being offered for the truth of
10
Exhibit 25 (CPDA (subject to the matter therein, but as examples of training
11 Seminar Covers) establishing materials going to the qualifications of
foundation) Plaintiff’s public defenders. Relevant to the
12 issue of whether Plaintiff’s public defenders
were qualified.
13
Relevant to whether delay was a reasonable
14
OVERRULE strategy. Stipulation to preclude Plaintiff from
15 Exhibit 26 (Trial (subject to presenting evidence within Attorney Robyn
Continuance Records) establishing Fass Wang’s knowledge is not relevant to
16 foundation) whether Defendants may present evidence
relating to her actions.
17
Exhibits 28 (Criminal
18 See Pl.’s MIL No. 3. The exhibits are presented
Records: 1997 Keturah
not for the truth of the statements therein, but as
19 Boyd Rape Charge), 29 evidence used by SVP evaluators in making
(Criminal Records: OVERRULE
their findings and Plaintiff’s public defenders in
20 1996 Stephanie
coming up with strategy, which in turn goes to
Palumbo Rape Charge),
21 30 (Parole Records) the reasonableness of such strategy.
22
Exhibit 31 (Plaintiff’s
SUSTAIN Not produced during discovery.
23 Civil Lawsuits)
24 Plaintiff cites no authority that Plaintiff cannot
sponsor the operative complaint in this case.
25
Plaintiff cites no authority that pleadings are
26 Exhibit 32 (Complaint) DEFER inadmissible. The Ninth Circuit has found that
“[f]actual assertions in pleadings . . . unless
27 amended, are considered judicial admissions
F.2d 224, 226 (9th Cir. 1988).
1
It is unclear what is the purpose of introducing
2 the complaint, and may be confusing to the jury.
Defendants will need to explain at the pretrial
3
conference the purpose of the complaint and
4 what portions will be introduced.
5 Plaintiff cites no authority that Plaintiff cannot
Exhibit 33 (Wang sponsor a declaration made in support of
OVERRULE
6 Declaration) Plaintiff’s Vasquez motion, particularly when
the verification was made on Plaintiff’s behalf.
7
Relevant to the qualifications of Plaintiff’s
8 Exhibit 34 (Photographs
OVERRULE public defenders. While the relevance seems
of Training Materials)
9 very limited, Plaintiff cites no prejudice.
10 The exhibit is a January 2017 letter sent from
the Department of State Hospitals to a San
11 Diego County Public Defender, listing the
number of patients who were being detained
12
under the Sexually Violent Predator Act and the
13 Exhibit 35 (DSH number released. There is no apparent
Response to PRA SUSTAIN relevance of this exhibit. There is no
14 Request) suggestion Plaintiff’s public defenders ever
reviewed this document or relied upon it when
15 they came up with their strategy. It is unclear
how information about whether there were other
16
patients who had been released is relevant to
17 Plaintiff’s specific case.
18 Michael Aye OVERRULE See Pl.’s MIL No. 1.
19
Plaintiff does not object except to request the
Bryon Brown, David
20 Feld, Margo George, exclusion of testimony about facts that
OVERRULE witnesses do not remember. It is unclear any
Sachiel Slavin, Diane
21 such testimony exists, so the objection is
Bellas, Brendon Woods
overruled as premature.
22
Witness was not disclosed until Defendants’
23
October 2023 pretrial statement. Even if other
24 state evaluators were disclosed and Dr.
Mark Koetting SUSTAIN Koetting’s 2007 SVP evaluation was produced,
25 this does not mean Plaintiff was given fair
notice that Dr. Koetting would be called as a
26 witness.
27
Mark Miculian, Michael OVERRULE Defendants state these witnesses were disclosed
Charles Flinton witnesses are state evaluators who were not
1
retained as expert witnesses, but are acting as
2 fact witnesses. The witnesses’ evaluations are
relevant to determining whether the strategy of
3 Plaintiff’s public defenders was reasonable.
4 Calvin Kilcrease, Mina
Beshara, Sara Arad,
5
Christopher Lee, Witnesses were not disclosed. The fact that
6 Raquel Keo, Dominic Plaintiff was aware these individuals existed as
Brown, David Avila, part of Plaintiff’s treatment team since does not
7 Nageswararao mean Plaintiff was given fair notice that these
Vallabhaneni, Richard SUSTAIN individuals could be called as witnesses at trial.
8 Schenkman, Jeffrey Defendants cite no authority that every
Hasson, Carolyn Knox, individual mentioned in a document produced
9
Doug Viet, Leah in discovery can be called as a witness without
10 Gordon, Joy Ogbonna, proper disclosure.
Gabriella Bernal, Isaac
11 Bonsu
12 Defendants do not intend to call Attorney Wang
as a witness unless Attorney Wang presents
13
evidence that is only within her personal
Robyn Fass Wang SUSTAIN
knowledge. As Plaintiff has agreed not to
14
present such evidence, the objection is sustained
15 as moot.
16
B. Defendants’ Objections
17
18 Witness/Evidence Ruling Reason/Explanation
19
Exhibits 37-45 are motions filed in other SVP
20 cases. Such evidence is excluded per
Defendants’ MIL No. 7, which Plaintiff did not
21 oppose. Further, there is no dispute that
Plaintiff never properly identified the exhibits.
22
Rather, Plaintiff did not cite them until August
23 Exhibits 37-45 SUSTAIN 2023, as attachments to Mr. Kraft’s expert
report and in Plaintiff’s opposition to
24 Defendants’ motion for summary judgment.
(See Pl.’s Resp. to Evid. Obj. at 1, Dkt. No.
25 134.) It is also unclear how such exhibits are
relevant in the instant case, as the motions were
26
filed with respect to other SVP detainees and by
27 other attorneys.
1 OVERRULE
IN PART, ,
2 Rudy Kraft SUSTAIN IN See Def.’s MIL No. 5.
PART
3
4 II, VOIR DIRE
5 The parties have submitted a joint jury questionnaire, which has no fewer than 66
6 || questions. The Court currently issues an electronic questionnaire, which includes standard juror
7 questions (https://www.cand.uscourts.gov/wp-content/uploads/2023/03/Updated-Standard-CAND-
g || Trial SurveyMonkey_ 10-2023.pdf; also available under “Attorney Quick Links” on
g || https://cand.uscourts.gov/attorneys/) and up to ten additional case specific questions. The jury
19 || questionnaire can be formatted so that the answers are either in the form of: (1) a “no” and “if yes,
11 please explain” comment box, or (2) a comment box. Examples of these options are shown below.
12
13 1. Do you or any close family members or friends have experience working in
education? 9 o
O No
A 16 O If yes, please explain.
= 17
Z 18
19
2. Do you or any close family members or friends have experience working in
20 education? 9 o
21
22
é
23
24
25 Accordingly, the parties should review the standard juror questions and jointly propose ten
26 || case specific questions by December 1, 2023. The parties should also identify their preference as
27 to the form of answers.
28 With respect to the parties’ jointly submitted questions, the Court does not intend to re-ask
1 questions that potential jurors would already have asked in the questionnaire. This does not
2 preclude following up on particular answers. To ensure that voir dire does not take an excessive
3 amount of time, the parties should meet and confer as to which questions they believe most
4 important to ask, as the Court does not intend to ask all 66 questions proposed by the parties.
5 IV. VERDICT FORM
6 Defendants provide a proposed verdict form. (Dkt. No. 111.) Plaintiff provides no
7 proposed verdict form but objects to Defendants’ proposed verdict form as to the following
8 questions. (See Dkt. No. 128.)
9 First, Plaintiff objects to Question Nos. 2-4, which ask if the due process violation was
10 caused by the District Attorney, the Court, or Plaintiff’s Public Defenders. (See Dkt. No. 111 at
11 2.) Plaintiff argues that the duties of the Superior Court or the District Attorney are not elements
12 at issue in this case because the Court has bifurcated Monell liability. (Dkt. No. 128 at 1.)
13 Whether any due process violation was caused by the Superior Court or the District Attorney are
14 not, however, related to Monell liability. Rather, as explained by the California Supreme Court in
15 analyzing the second Barker factor, “the permissibility of pretrial delay depends to a great extent
16 on who bears responsibility for it and why.” Camacho, 15 Cal. 5th at 384; see also id. (“In
17 analyzing the second factor, courts examine ‘whether the government or the criminal defendant is
18 more to blame for the delay.’”). In other words, who caused the delay is, in fact, one of the factors
19 that a jury must consider in determining whether there was a due process violation. Moreover, it
20 is not apparent to the Court that who caused the delay is an affirmative defense; rather, the party
21 asserting the due process violation has the burden of demonstrating a violation under Barker. Id.
22 at 380. This would include establishing the second Barker factor.
23 Second, Plaintiff objects to Questions 5-12, which separately ask: (a) if a specific public
24 defender violated Plaintiff’s due process rights, and (b) when during the public defender’s
25 representation of Plaintiff did the due process violation occur. (See Dkt. No. 111 at 2-4.)
26 Plaintiff argues that he should not be required to show that each public defender
27 participated in the constitutional violation, and further suggests that Defendants are actually
1 No. 128 at 2-3.) This is not what Questions 5-12 seek to do. Rather, Questions 5-12 appear to be
2 an acknowledgment that Plaintiff’s due process rights could have been violated for a period
3 shorter than the entirety of his incarceration, based on the specific actions of each of his public
4 defenders. For example, if Plaintiff never asked for a trial during Attorney Brown’s representation
5 of Plaintiff, this could mean that there was no due process violation during this period of
6 representation. Thus, the verdict form does not seek to require Plaintiff to demonstrate his due
7 process rights had to be violated by each and every one of his public defenders, but rather seeks to
8 determine when the due process violation occurred.
9 That said, asking eight questions on this issue appears confusing and unnecessarily
10 complicated. Thus, the parties should meet and confer as to whether there is a way to simplify
11 these questions, such as a single question asking when the due process violation occurred.
12 V. JURY INSTRUCTIONS
13 In addition to the joint instructions proposed by the parties, the Court will also include the
14 following preliminary instructions: 1.3 (Duty of Jury), 1.9 (What is Evidence), 1.10 (What is Not
15 Evidence), 1.11 (Evidence for a Limited Purpose), 1.12 (Direct and Circumstantial Evidence),
16 1.13 (Ruling on Objections), 1.14 (Credibility of Witnesses), 1.15 (Conduct of the Jury), 1.16
17 (Publicity During Trial), 1.17 (No Transcript Available to the Jury), 1.18 (Taking Notes), 1.20
18 (Bench Conferences and Recesses), 2.13 (Expert Opinion), 3.1 (Duty to Deliberate), 3.2
19 (Consideration of Evidence – Conduct of the Jury), 3.3 (Communication with Court), 3.5 (Return
20 of Verdict), and an “Unconscious Bias” instruction. (See Dkt. No. 27 ¶ 6(b).)
21 With respect to the instructions jointly proposed by the parties, the following joint
22 instructions are missing information: 2.3 (Judicial Notice) and 3.6 (Additional Instructions of
23 Law). It is unclear to the Court what judicially noticeable facts or additional instructions of law
24 the parties request instruction on, and thus how to complete these jury instructions. The parties
25 are ordered to meet and confer as to these two joint instructions, and to provide complete
26 information.
27 As to the remaining instructions proposed by the parties, the Court will address these in a
1 VI. ADMINISTRATIVE MATTERS
2 The Court intends to impose time limits on each party at trial. The parties are directed to
3 submit (1) Defendant’s projected duration of the direct and cross-examination of each of its
4 || witnesses listed in Defendant’s witness list, Dkt. No. 106; (2) the total number of hours projected,
5 || particularly in light of the Court’s tentative rulings. These estimates should be realistic, not
6 || padded. The parties should be prepared to discuss these estimates during the pretrial conference.
7 The Court may shorten the allotted time as it deems appropriate.
8 The parties should be prepared to discuss options for the public to stream or listen in on the
9 trial, such as by Zoom webinar or other means. The parties should also be prepared to discuss
10 || their technology requirements. The parties are generally required to provide all necessary
11 courtroom technology, such as cameras, a projector screen, and a projector. The parties should
12 || also be prepared to come to the Court before the trial to test technology.
13 VI. COVID PRECAUTIONS
14 In light of the ongoing pandemic and respiratory virus season, the undersigned is
15 committed to keeping the parties, counsel, witnesses, and court staff as safe as possible.
16 || Currently, masking inside the courthouse is determined by the level of community transmission of
3 17 COVID-19. When a county where a Northern District of California divisional office is located
18 || moves to high community transmission, masking will be required in the courthouse. Thus, the
19 Court may impose a mask mandate if the number of community cases rise, or if there is a change
20 || in guidance from local public health agencies.
21 Anyone experiencing any symptoms of COVID-19 or other respiratory viruses, including
22 || fever or cold-like symptoms, is not permitted to enter the courthouse. If this happens, the parties
23 are directed to notify the courtroom deputy at kawcrd @cand.uscourts.gov,
24 IT IS SO ORDERED.
25 Dated: November 21, 2023
27 United States Magistrate Judge
28