Opinion
No. 1:04-cv-06771-SMS.
March 23, 2006
ORDER VACATING HEARING RE: PLAINTIFF'S MOTION TO COMPEL PRODUCTION OF EVIDENCE AND DENYING MOTION WITHOUT PREJUDICE (Doc. 55)
Plaintiff is proceeding with a civil action in this Court. The parties have consented to magistrate judge jurisdiction for all purposes (Doc. 48). Pending before this Court is plaintiff's motion to compel production of relevant evidence (Doc. 55). In opposition to plaintiff's motion, counsel for defendants, County of Merced, Merced County Sheriff's Department, and Vernon Warnke, Terry L. Allen, Esq., filed a declaration in opposition to the motion to compel production of evidence (Doc. 58). The declaration of Norman Newhouse in reply to the opposition to compel production of evidence was filed on March 15, 2006 (Doc. 59).
I. The Hearing on the Motion is Vacated
Pursuant to Rule 78-230(h) of the Local Rules of Practice for the United States District Court, Eastern District of California, the Court finds that plaintiff's motion to compel is a matter that may appropriately be submitted upon the record and briefs without oral argument.
Accordingly, the hearing on the motion, presently set for March 24, 2006 at 9:30 a.m. in Courtroom No. 7 on the Sixth Floor before the Honorable Sandra M. Snyder, United States Magistrate Judge, is VACATED.
II. Plaintiff's Motion Appears To Be Defective and Premature
Though served on all parties named in the amended complaint (Doc. 38), the notice of motion addresses "Defendant County of Merced and County of Merced District Attorney and Its Attorney of Record" only. See notice of motion, page 2 (Doc. 55). And, clearly stated in plaintiff's points and authorities supporting the motion to compel production of evidence, at page 3, lines 10-12, "Plaintiff requests the Court to order defendant district attorney to produce the black hooded sweatshirt for testing to see if it can be determined whether plaintiff's son ever wore the sweatshirt." In addition, plaintiff seeks attorney's fees and costs in conjunction with the necessity to bring this motion.
There are two glaring errors in plaintiff's motion: (1) The Merced County District Attorney's Office is not a specifically named party to this action nor does it have custody of the sweatshirt in question (Docs. 38 58); and, (2) the party that does have custody of the sweatshirt, The City of Merced, is not the subject of plaintiff's motion to compel — nor should it be as it is plain from The City of Merced's response to plaintiff's request for production No. 2, set forth as an exhibit to Norman Newhouse's declaration in reply to Merced's opposition to compel production of evidence, "The City of Merced is attempting to arrange an inspection of the black hooded sweatshirt with the Merced County District Attorney's office in light of chain of custody issues in the criminal trial of Mr. Rivera. The City of Merced will meet and confer with plaintiff [sic] counsel and all counsel to coordinate the inspection once chain of custody issues are resolved with the County of Merced District Attorney's office." See page — 2 — of City of Merced's responses to plaintiff's request for production of documents, set one, lines 16-22.
The issue of the testing, or not, for DNA evidence from the black hooded sweatshirt does not appear to be ripe for court order: (1) It is not likely The City of Merced, The City of Merced Police Department, the Merced Multi-Action Narcotic Task Force, and/or The Merced County District Attorney's Office would stipulate and agree to release custody of an arguably critical item of evidence prior to the criminal trial of Mr. Rivera; (2) It is not likely this Court would so order, prior to the conclusion of any criminal trial, absent a showing of extreme good cause and/or prejudice if such an order were not forthcoming in the immediate future; (3) It is not clear to this Court that, at the meet and confer The City of Merced declared it will arrange with plaintiff's counsel, a scraping or some such sample from the sweatshirt could not be obtained for testing by plaintiff's expert(s) without the necessity for the relinquishing of custody of the entire sweatshirt; and, (4) If plaintiff believes that by naming the County of Merced in its first amended complaint, the District Attorney's Office is ipso facto a party in this case, authority will need to be provided in that regard.
III. Conclusion
It is therefore the ORDER of the court that plaintiff's motion to compel production of the black hooded sweatshirt is DENIED WITHOUT PREJUDICE. If after the meet and confer between counsel for the City of Merced, plaintiff, and other interested counsel for named defendants, the issue of testing for DNA from the sweatshirt is not resolved, this Court advises all counsel to appear telephonically for an informal discovery conference with this Court to attempt to resolve the dispute without need for any further noticed motion(s).
Plaintiff's request for an award of attorney's fees and costs is DENIED.
IT IS SO ORDERED.