Opinion

(PC) Alexander v. Guillen

Court
District Court, E.D. California
Filed
Jul 7, 2025
Cited by
0 cases
Authority
More cited than 37.3%

“[A]s required by Kerr, we recognize ‘that in camera review is a highly appropriate and useful means of dealing 25 with claims of governmental privilege.’”

How later courts described this case

  • “[A]s required by Kerr, we recognize ‘that in camera review is a highly appropriate and useful means of dealing 25 with claims of governmental privilege.’”
  • providing that the exhaustion question should be decided as early as feasible

Written by the judges who cited it.

The opinion

1

2

3

4 UNITED STATES DISTRICT COURT

5 EASTERN DISTRICT OF CALIFORNIA

6

7 JULIAN J. ALEXANDER, Case No. 1:24-cv-01341-KES-EPG (PC)

8 Plaintiff, SCHEDULING ORDER

9 Exhaustion Motions: September 29, 2025

10 v.

Doe Identification: January 2, 2026

11

12 FOSTER, et al., Motions to Compel: February 3, 2026

13

Defendants. Non-expert Discovery: March 3, 2026

14

15 Dispositive Motions: April 3, 2026

16

17

This Court now sets a schedule for this action through the filing of dispositive motions.

18

I. DISCOVERY PROCEDURES

19

Discovery is now open, and the parties are granted leave to serve discovery requests.

20

Pursuant to Federal Rules of Civil Procedure 1, 16, and 26–36, discovery shall proceed as

21

follows:

22

1. The parties may take the following types of discovery from other parties:

23

a. Interrogatories (an interrogatory is a written question or request for

24

information and “may relate to any matter that may be inquired into under

25

Rule 26(b).” Fed. R. Civ. P. 33(a)(2));

26 b. Requests for Production (a request for production is a written request that the

27 opposing party produce documents or electronically stored information,

28

1 “including writings, drawings, graphs, charts, photographs, sound

2 recordings, images, and other data or data compilations,” or a written request

3 that the opposing party produce any designated tangible things. Fed. R. Civ.

4 P. 34(a)(1));

c. Requests for Admissions (a request for admission is a written request that

5

the opposing party “admit, for purposes of the pending action only, the truth

6

of any matters within the scope of Rule 26(b)(1)” that relate to “(A) facts,

7

the application of law to fact, or opinions about either; [or] (B) the

8

genuineness of any described documents.” Fed. R. Civ. P. 36(a)(1)); and

9

d. Depositions (a deposition is where one party (or that party’s counsel)

10

questions someone under oath, and a court reporter is present to record

11

the proceedings).

12

1. Pursuant to Federal Rule of Civil Procedure 30(a)(2)(B),

13

Defendant(s) may depose any witness confined in a prison on

14

the condition that, at least fourteen (14) days before such a

15

deposition, Defendant(s) serve all parties with the notice required

16 by Federal Rule of Civil Procedure 30(b)(1). Plaintiff’s failure to

17 participate in a properly noticed deposition could result in sanctions

18 against Plaintiff, including monetary sanctions and/or dismissal of

19 this case. Pursuant to Federal Rule of Civil Procedure 30(b)(4),

20 the parties may take any deposition under this section by video

21 conference without a further motion or order of the Court, relieving

22 the court reporter of the requirement to be in the physical presence

23 of the witness under Federal Rule of Civil Procedure 28(a)(1)

during that deposition.

24

2. If Plaintiff wishes to take a deposition, Plaintiff must file a motion

25

requesting the Court’s permission to do so. Before filing a motion,

26

Plaintiff must contract with a licensed court reporter, also known as

27

Certified Shorthand Reporters (CSRs). CSRs are not court

28

1 employees; they are private individuals. Plaintiff is responsible for

2 paying CSRs their fees for taking the deposition and producing

3 a transcript. Plaintiff’s pro se or in forma pauperis status does not

4 entitle Plaintiff to a free deposition. Every motion for leave to take

deposition must include the name of the person to be deposed,

5

the name and contact information for the court reporter with whom

6

Plaintiff contracted, the estimated cost for the CSR’s time and the

7

recording, and the source of funds for payment of that cost, or the

8

motion may be summarily denied for failure to comply with this

9

order. The Court may request input from Plaintiff’s institution of

10

confinement to determine if the deposition(s) can proceed in a safe

11

and secure manner before ruling on a motion for a deposition.

12

2. A party may serve on any other party no more than 15 interrogatories, 15 requests for

13

production of documents, and 15 requests for admission. If a party wishes to serve

14

additional discovery requests, that party may file a motion for additional discovery

15

requests with the Court, explaining why additional discovery requests are necessary.

16 3. Discovery requests and responses should be sent to the opposing part(ies), or their

17 counsel if represented. They should not be filed with the Court.

18 4. Responses to written discovery requests shall be due forty-five (45) days after the

19 request is first served. This means that written discovery requests must be served

20 within a timeframe that allows the opposing party a forty-five (45) day period to

21 respond prior to the close of non-expert discovery. Any party who is served a request

22 where the forty-five (45) day period for response would end after the close of non-

23 expert discovery is entitled to object to that request on the ground that the request is

untimely.

24

5. Boilerplate objections are disfavored and may be summarily overruled by the Court.

25

Responses to document requests shall include all documents within a party’s

26

possession, custody, or control. Fed. R. Civ. P. 34(a)(1). Documents are deemed to be

27

within a party’s possession, custody, or control if the party has actual possession,

28

1 custody, or control thereof, or the legal right to obtain the property on demand. If

2 Defendant(s) cannot obtain documents from Plaintiff’s institution(s) of confinement,

3 Defendant(s) shall clearly respond that a third-party subpoena will be necessary to

4 obtain documents from Plaintiff’s institution(s) of confinement.

6. If any party or third party withholds a document on the basis of privilege, that party or

5

third party shall provide a privilege log to the requesting party identifying the date,

6

author, recipients, general subject matter, and basis of the privilege within thirty days

7

after the date that responses are due. Failure to provide a privilege log within this time

8

shall result in a waiver of the privilege. Additionally, if a party is claiming a right to

9

withhold witness statements and/or evidence gathered from investigation(s) into the

10

incident(s) at issue in the complaint based on the official information privilege or

11

confidentiality, the withholding party shall submit the withheld witness statements

12

and/or evidence to the Court for in camera review, along with an explanation of why

13

the witness statements and/or evidence should be withheld.1 The witness statements

14

and/or evidence shall be Bates stamped and emailed to

15

EPGorders@caed.uscourts.gov. The withholding party shall also file and serve a

16

17

1 See Woodford v. Ngo, 548 U.S. 81, 94–95 (2006) (“[P]roper exhaustion improves the quality of

18

those prisoner suits that are eventually filed because proper exhaustion often results in the creation of an

19 administrative record that is helpful to the court. When a grievance is filed shortly after the event giving

rise to the grievance, witnesses can be identified and questioned while memories are still fresh, and

20 evidence can be gathered and preserved.”).

The “common law governmental privilege (encompassing and referred to sometimes as the official

21

or state secret privilege) . . . is only a qualified privilege, contingent upon the competing interests of the

22 requesting litigant and subject to disclosure. . . .” Kerr v. U.S. Dist. Ct. for N. Dist. of Cal., 511 F.2d 192,

198 (9th Cir. 1975) (citations omitted). The Ninth Circuit has since followed Kerr in requiring in camera

23 review and a balancing of interests in ruling on the government’s claim of the official information

24 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 review is a highly appropriate and useful means of dealing

25 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 (9th Cir. 1990), as amended on

26

denial of reh’g (Feb. 27, 1991), as amended on denial of reh’g (May 24, 1991) (“Government personnel

27 files are considered official information. To determine whether the information sought is privileged, courts

must weigh the potential benefits of disclosure against the potential disadvantages. If the latter is greater,

28 the privilege bars discovery.”) (citations omitted).

1 notice that they have complied with this order. All other claims of privilege may be

2 challenged via a motion to compel.

3 7. If Plaintiff seeks documents from someone who is not a party in this case, Plaintiff

4 must file a request for the issuance of a subpoena duces tecum with the Court. In any

request for a subpoena, Plaintiff must: (1) identify the documents sought and from

5

whom; (2) explain why the documents are relevant to the claims in this case; and

6

(3) make a showing in the request that the records are only obtainable through a third

7

party. If the Court approves the request, it may issue Plaintiff a subpoena duces tecum,

8

commanding the production of documents from a non-party, and may command

9

service of the subpoena by the United States Marshals Service. Fed. R. Civ. P. 45; 28

10

U.S.C. § 1915(d). However, the Court will consider granting such a request only if the

11

documents sought from the non-party are not obtainable from Defendant(s) through a

12

Rule 34 request for production of documents.

13

8. The parties are required to act in good faith during the course of discovery and the

14

failure to do so may result in the payment of expenses pursuant to Federal Rule of

15

Civil Procedure 37(a)(5) or other appropriate sanctions authorized by the Federal

16 Rules of Civil Procedure or the Local Rules.

17 9. The parties have until February 3, 2026, to file motion(s) to compel further discovery

18 responses. Motions to compel can be used to challenge failure of a party to respond to

19 a discovery request, failure to produce documents on the basis of privilege, or failure

20 to produce privilege log. The motion(s) should include a copy of the request(s) and

21 any response to the request(s) at issue.

22 10. The Court will not require an informal discovery dispute conference prior to the filing

23 of any discovery motion. Nor are the parties required to follow the procedures set forth

in Local Rule 251 for dealing with discovery motions, including the preparation of a

24

joint discovery statement. Instead, the parties shall follow the briefing schedule

25

provided by Local Rule 230(l) for any discovery motion brought pursuant to Federal

26

Rules of Civil Procedure 26–37 and 45.

27

28

1 11. The parties are advised that each party is responsible for planning and timing their

2 own discovery. This means that the Court will not sua sponte extend the deadline for

3 any party to file motions to compel or to respond and/or serve written discovery

4 requests.

II. DOE IDENTIFICATION

5

As noted in this Court’s order authorizing service of the complaint, the Court has found

6

cognizable claims against Lieutenant John Doe and will permit Plaintiff the opportunity to

7

discover information to be able to identify this Defendant. (ECF No. 9, p. 4). Plaintiff may submit

8

discovery requests to Defendant(s) in order to identify Lieutenant John Doe. The Court notes that

9

Defendants’ statement says that they “do not believe a third-party subpoena to Plaintiff’s

10

institution of confinement will be necessary to obtain relevant documents.” (ECF No. 26, p. 5).

11

However, Plaintiff may request a subpoena duces tecum if information regarding Lieutenant John

12

Doe is not available from Defendant(s).

13

Plaintiff has until January 2, 2026, to file a motion to substitute a named individual in

14

place of Lieutenant John Doe. If Plaintiff fails to identify Lieutenant John Doe by this deadline,

15

Lieutenant John Doe may be dismissed from the case.

16 III. PAGE LIMITS, COURTESY COPIES, AND REQUIREMENT TO RESPOND

17 The parties are advised that unless prior leave of the Court is obtained before the filing

18 deadline,2 all moving and opposition briefs or legal memoranda shall not exceed twenty-five (25)

19 pages. Reply briefs by the moving party shall not exceed ten (10) pages. These page limits do not

20 include exhibits. The parties shall not file multiple or supplemental briefs to circumvent this rule.

21 Unless otherwise ordered, all motions to dismiss, motions for summary judgment, motions

22 concerning discovery, motions pursuant to Federal Rules of Civil Procedure 7, 11, 12, 15, 41, 55,

23

56, 59 and 60, and Local Rule 110, shall be briefed pursuant to Local Rule 230(l).3 Failure to

timely oppose such a motion may be deemed a waiver of opposition to the motion. Local Rule

24

230(l). Unsigned affidavits or declarations will be stricken, and affidavits or declarations not

25

26

27

2 Parties may seek leave by filing a short motion.

28 3 As noted below, the deadline to file oppositions is different for dispositive motions.

1 signed under penalty of perjury have no evidentiary value. Opposition to all other motions need

2 be filed only as directed by the court.

3 Pursuant to Local Rule 133(j), depositions should not be filed. However, counsel

4 referencing a deposition in any filing must submit pertinent portions of the deposition as

exhibit(s). In addition, counsel should also email a copy of the entire deposition as a .pdf file to

5

EPGorders@caed.uscourts.gov “and concurrently email or otherwise transmit the deposition to all

6

other parties.” L.R. 133(j). Counsel should not email links to file sharing services that require the

7

Court to download the deposition.

8

IV. NON-EXPERT DISCOVERY DEADLINE

9

The deadline for the completion of all non-expert discovery is March 3, 2026. As

10

discussed above, this deadline includes all written discovery requests and responses. Any written

11

discovery request must be made so that the opposing party is allowed the entire amount of time

12

allotted for response by this deadline.

13

V. EXHAUSTION MOTION DEADLINE

14

The deadline for Defendant(s) to present any challenge for failure to exhaust

15 administrative remedies is September 29, 2025.4 Failure to raise the exhaustion defense by this

16 deadline will result in waiver of the defense. See Albino v. Baca, 747 F.3d 1162, 1170 (9th Cir.

17 2014) (providing that the exhaustion question should be decided as early as feasible).

18 VI. DISPOSITIVE MOTIONS DEADLINE

19 The deadline for filing dispositive motions, including motions for summary judgment

20 (other than dispositive motions based on the defense of failure to exhaust administrative

21 remedies), is April 3, 2026. The deadline to file oppositions to dispositive motions, including

22 motions for summary judgment, is thirty days from the date the motion is filed. The deadline to

23 file replies to oppositions is fourteen days from the date the opposition is filed. If a party needs

an extension of any of these deadlines, that party may file a motion for an extension of time.

24

If Defendant(s) file a motion for summary judgment, Defendant(s) shall simultaneously

25

provide Plaintiff with the notice and warning required by Rand v. Rowland, 154 F.3d 952 (9th

26

27 4 If Defendant(s) need an extension of this deadline, Defendant(s) shall file a motion requesting an

28 extension of this deadline.

1 Cir. 1998). In addition to the language suggested by Rand in Appendix A of that opinion, id. at

2 962, this notice must also include a short and plain statement of the Local Rule 260 requirements

3 and be titled “This Notice is Required to be Given to you by the Court.”

4 The parties are also advised of the following requirements regarding motions for summary

judgment contained in the Local Rules:

5

(a) Motions for Summary Judgment or Summary Adjudication. Each

6

motion for summary judgment or summary adjudication shall be

7 accompanied by a “Statement of Undisputed Facts” that shall enumerate

discretely each of the specific material facts relied upon in support of the

8 motion and cite the particular portions of any pleading, affidavit,

deposition, interrogatory answer, admission, or other document relied upon

9 to establish that fact. The moving party shall be responsible for the filing of

all evidentiary documents cited in the moving papers. See L.R. 133(j).

10

(b) Opposition. Any party opposing a motion for summary judgment or

11 summary adjudication shall reproduce the itemized facts in the Statement

of Undisputed Facts and admit those facts that are undisputed and deny

12

those that are disputed, including with each denial a citation to the

13 particular portions of any pleading, affidavit, deposition, interrogatory

answer, admission, or other document relied upon in support of that denial.

14 The opposing party may also file a concise “Statement of Disputed Facts,”

and the source thereof in the record, of all additional material facts as to

15 which there is a genuine issue precluding summary judgment or

adjudication. The opposing party shall be responsible for the filing of all

16

evidentiary documents cited in the opposing papers. See L.R. 133(j). If a

17 need for discovery is asserted as a basis for denial of the motion, the party

opposing the motion shall provide a specification of the particular facts on

18 which discovery is to be had or the issues on which discovery is necessary.

19 Local Rule 260(a)–(b).

20 If Defendant(s) file a motion for summary judgment, the accompanying Statement of

Undisputed facts shall contain an additional blank column titled “Plaintiff’s Response and

21

Supporting Evidence,” which Plaintiff may use to respond to each fact. Here is an example of a

22

format Defendant(s) may follow:

23

24 Number Undisputed Material Fact Supporting Plaintiff’s Response and

Evidence Supporting Evidence

25

On X date, Plaintiff was confined X Decl. ¶ 20.

1.

26 at X institution.

27

28

1 2. The X incident alleged in the X interrogatory

complaint happened on X date. response.

2

3. Plaintiff saw Dr. Y on X date. Y Decl. ¶ 45.

3

4 Plaintiff may use Defendants’ Statement of Undisputed Facts to comply with requirements

5 of Local Rule 260(b), which requires the responding party to “reproduce the itemized facts in the

6 Statement of Undisputed Facts and admit those facts that are undisputed and deny those that are

7 disputed, including with each denial a citation to the particular portions of any pleading, affidavit,

8 deposition, interrogatory answer, admission, or other document relied upon in support of that

9 denial.” For example, Plaintiff may complete it as follows:

10 Number Undisputed Material Fact Supporting Plaintiff’s Response and

Evidence Supporting Evidence

11

On X date, Plaintiff was confined X Decl. ¶ 20. Admitted.

1.

12 at X institution.

13 2. The X incident alleged in the X interrogatory Denied. Pl. deposition

complaint happened on X date. response. at 2:4–6.

14

3. Plaintiff saw Dr. Y on X date. Y Decl. ¶ 45. Admitted.

15

16 VII. FURTHER DATES AND DEADLINES

If this case is still proceeding after dispositive motions have been resolved, or if no

17

dispositive motions are filed, the Court will set expert disclosure deadlines,5 a pretrial conference,

18

pretrial deadlines, and a trial date.

19

Additionally, within fourteen days after a final ruling on any dispositive motion, if the

20

case proceeds, Defendant(s) shall confer with Plaintiff and file a report indicating each party’s

21

position on whether a settlement conference would be productive.

22

VIII. EFFECT OF THIS ORDER

23

This order represents the Court’s best estimated schedule through dispositive motions.

24

Any party unable to comply with the dates outlined in this order shall immediately file an

25

appropriate motion or stipulation identifying the requested modification(s).

26

5 While the Court is not setting a deadline for expert disclosures at this time, the parties may

27 provide their expert disclosures at any time. Such disclosures must conform with Federal Rule of Civil

28 Procedure 26(a)(2)(B)-(C).

1 The dates set in this order are considered to be firm and will not be modified absent

2 | ashowing of good cause, even if a stipulation to modify is filed. Fed. R. Civ. P. 16(b)(4).

3 Failure to comply with this order may result in the imposition of sanctions.

4

; IT IS SO ORDERED.

Dated: _ July 7, 2025 [spe ey

7 UNITED STATES MAGISTRATE JUDGE

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

10

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.