STIPULATION AND ORDER RE CONTINUANCE OF TRIAL DATE AND PRETRIAL CONFERENCE

WILLIAM H. ORRICK, District Judge.

To the Honorable Court:

The parties to this action, by and through their counsel of record, hereby stipulate and respectfully request as follows:

1. The parties to this action have been working diligently and cooperatively to complete discovery to prepare for trial.

2. However, some issues have arisen, outside of their control, which prevent them from completing the depositions and fact discovery and expert disclosures and expert discovery necessary to afford a fair trial.

a. Namely, decedent's treating physician (Dr. Peter Matthews) initially agreed to a date for his deposition, and then requested that his counsel be present. Though this request is understandable, his counsel is not available for deposition until April 15, 16 or 18, 2014. This presents an extreme challenge for the experts to receive, digest and complete reports pursuant to FRCP Rule 26.

b. In addition, the pathologist who performed the autopsy on decedent (Dr. Mark Super) has been unresponsive, despite repeated attempts to contact and obtain dates for voluntary appearance at deposition. Though the parties hoped to avoid doing so, a subpoena will be issued for a date that works for counsel to get this deposition complete.

c. The decedent's treating psychiatrist (Dr. Alex Stalcup) has also been unresponsive, despite repeated contact attempts to arrange his deposition and will also necessitate a subpoena and possibly a motion to compel his attendance at his deposition.

d. Because a new issue has arisen regarding the knife that was located next to the body of the decedent, it is now being arranged, in cooperation with the State Department of Justice, to conduct DNA touch testing analysis of swabbed materials lifted from the knife during the original forensic evidence collection for comparison to DNA samples from the officers who were on scene, including the two defendant officers. The DOJ Lab is cooperating and may have test results by mid-May — June 2014 but have stated additional time to complete the DNA testing would be appreciated.

e. Depositions of Investigators from the State of California Board of Quality Assurance for Nursing who were involved in the administrative proceeding to terminate decedent's nursing license (there was an evidentiary hearing scheduled for a date two weeks after his death) still have to be completed as well as a deposition of the attorney representing decedent in that proceeding.

4. All of this discovery must be completed before the retained experts may complete their work and issue their Rule 26 Reports and then be deposed.

5. The parties have accordingly conferred, and respectfully submit that a continuance of the trial and corresponding deadlines is therefore appropriate.

6. After consulting their calendars, those of the experts, witnesses and parties and after consultation with the Court's courtroom deputy, a new proposed trial date of January 12, 2015 is requested.

7. All pre-trial deadlines would be governed by this date, with a pre-trial conference to be held, at the Court's discretion and availability, during the week of December 8, 2014.

8. Should the Court have any questions concerning this relief, counsel are available and willing to appear to discuss the above issues in detail.

ATTORNEY ATTESTATION

I hereby attest that I have on file all holograph signatures for any signatures indicated by a "conformed" signature (/s/) within this E-filed document.

ORDER

Having considered the stipulated request of the parties, the Court orders as follows:

1. Good cause having been shown, and in light of the stipulation of the parties, the trial date of May 12, 2014 is hereby vacated.

2. Trial is now set for January 12, 2015. The pre-trial conference shall be held on December 15, 2014.

3. It is unclear to the Court what the parties meant by suggesting that all pretrial deadlines would be governed by the trial date. To add a bit of clarity, the depositions described in the stipulated request, and all expert discovery, shall be concluded by October 31, 2014. If either party wants the Court to issue a more detailed schedule for the depositions, expert reports and expert depositions, or for any reason thinks a case management conference would be useful at this juncture, please contact Ms. Davis, the courtroom deputy.

4. This matter is referred to Magistrate Judge Joseph Spero for a settlement conference to occur at Judge Spero's and the parties' convenience during the month of November, 2014. The parties shall contact Judge Spero's courtroom deputy in two weeks if the date and time for the settlement conference has not been determined.

IT IS SO ORDERED.