ORDER DENYING PLAINTIFF'S MOTIONS TO EXCLUDE AND TO QUASH, GRANTING DEFENDANT'S MOTION TO PRESENT ORAL TESTIMONY, AND SETTING EVIDENTIARY HEARING ON SEPTEMBER 27, 2012

[Re: ECF Nos. 115, 187, 200, 207, 214]

LAUREL BEELER, Magistrate Judge.

I. INTRODUCTION

The district court referred Defendant Officer Daniel Shacklett's motion for a determination of Plaintiff Annette Sharlene Elder-Evins's competence to this court for a report and recommendation. The parties subsequently filed additional motions regarding the evidence to be introduced during the hearing. The court held a hearing on the motions on June 21, 2012. For the reasons set forth below, the court grants in part and denies in part the parties' four requests for judicial notice, denies Plaintiff's motions to exclude medical records and medical testimony and to quash Defendant's subpoena to Dr. Donald Apostle, grants Defendant's motion to present the oral testimony of Dr. Apostle, and sets an evidentiary hearing for September 27, 2012, at 2 p.m.

II. BACKGROUND

On or about March 17, 2009, Plaintiff was arrested on her property and charged with violating California Penal Code § 148(a)(1) for resisting arrest. See First Amended Complaint ("FAC"), ECF No. 79 at 16. In April 2009, Plaintiff made her first appearance for these charges in Sonoma County Superior Court. See Plaintiff's 2/9/2012 RJN, ECF No. 203, Ex. B at 1.1 At that time, the court appointed a public defender pursuant to California Penal Code § 1368. Id. This statute requires a court to appoint an attorney for a defendant in a criminal case if a doubt arises in the mind of the judge as to the defendant's mental competence. The court also appointed Dr. Donald Apostle, a psychologist, to evaluate Plaintiff to determine whether she was competent to stand trial. Id.

After Dr. Apostle had conducted his evaluation, the court dismissed the charges against Plaintiff pursuant to California Penal Code § 1385, which allows a court to dismiss charges against a defendant "in the interest of justice." Id. at 2. While the court had previously appointed an attorney for Plaintiff, it cited neither California Penal Code § 1368 nor California Penal Code § 1370.2, which governs dismissal of misdemeanor charges against defendants who are found incompetent, when it dismissed the charges against Plaintiff. See id.

On December 9, 2009, Plaintiff, proceeding pro se, filed this action. Original Complaint, ECF No. 1. She filed a First Amended Complaint on October 25, 2010. FAC, ECF No. 79. Essentially, she claims that she was mistreated in the course of her March 17, 2009 arrest. See generally FAC, ECF No. 79. The district court dismissed all claims in Plaintiff's First Amended Complaint except for a claim against Defendant for excessive force. 1/31/11 Order, ECF No. 106 at 12-13.

On April 4, 2011, Defendant moved for an order finding Plaintiff incompetent to proceed pro se in this action. Defendant's Motion for Competency Determination, ECF No. 115. On June 28, 2011, the district court referred Defendant's motion to a magistrate judge for a report and recommendation, and the motion was assigned to the this court. Order of Reference, ECF No. 148. The court set a hearing on the motion for August 25, 2011 and noted that Plaintiff would have the opportunity to express any objections to an appointment of a guardian ad litem and present any evidence, written or testimonial, that is relevant to the court's determination of her competency to proceed without an attorney in this matter. 7/29/2011 Order, ECF No. 156. Thereafter, the court recommended that the district court refer Plaintiff to the Federal Pro Bono Project so that an attorney could be appointed to assist Plaintiff for the purpose of the opposing Defendant's motion for a competency hearing and presenting evidence at the competency hearing. 8/10/2011 Order, ECF No. 160. In light of this decision, the court continued the competency hearing to November 17, 2011. Id.

Attorney Michael Esser was appointed to assist Plaintiff with respect to the competency proceedings. Notice of Appearance, ECF No. 168. In order to give him time to get up to speed, the court continued the hearing on Defendant's motion to December 15, 2011. 10/12/2011 Order, ECF No. 176. Then, because of various scheduling and logistical conflicts raised by the parties, the court continued the hearing several more times, and it ultimately was set for June 21, 2012. 11/7/2011 Order, ECF No. 184; 12/15/2011 Order, ECF No. 190; 2/12/2012 Order, ECF No. 204; 4/25/2012 Clerk's Notice (ECF entry only). The parties also filed several evidentiary motions, and they were set for hearing on the same day as Defendant's motion for a competency determination. Specifically, Plaintiff moved to exclude Dr. Apostle's records and to quash Defendant's subpoena of him, and Defendant moved for an order allowing Dr. Apostle to testify at the competency hearing.

The court conducted a hearing on the motions on June 21, 2012. It was attended by Defendant's counsel, John Fritsch, and Plaintiff's counsel, Michael Esser.

III. LEGAL STANDARD

Federal Rule of Civil Procedure 17 governs the capacity of parties to sue or be sued in federal court. It directs courts to look to the law of the state of the individual's domicile to determine whether that party has capacity to participate as a party in the litigation. Fed. R. Civ. P. 17(b)(1). In California, a party is incompetent if he or she lacks the capacity to understand the nature or consequences of the proceeding, or is unable to assist counsel in the preparation of the case. See In re Jessica G., 93 Cal.App.4th 1180, 1186 (2001) (applying this standard to dependency proceedings); see also Cal. Prob. Code § 1801 and Cal. Pen. Code § 1367; In re Sara D., 87 Cal.App.4th 661, 666-67. A court may find a party incompetent only if a preponderance of the evidence supports such a finding. See Jessica G., 93 Cal. App. 4th at 1186.

Rule 17 also provides that the court "must appoint a guardian ad litem—or issue another appropriate order—to protect a minor or incompetent person who is unrepresented in an action." Fed. R. Civ. P. 17(c)(2). When a "substantial question exists regarding the mental competence of a party proceeding pro se," courts should "conduct a hearing to determine whether or not the party is competent, so that a representative may be appointed if needed." See Krain v. Smallwood, 880 F.2d 1119, 1121 (9th Cir. 1989); see also Allen v. Calderon, 408 F.3d 1150, 1153 (9th Cir. 2005). If the party does not cooperate in the determination, the district court has discretion to dismiss the case without prejudice. Krain, 880 F.2d at 1121 (citing Bodnar v. Bodnar, 441 F.2d 1103, 1104 (5th Cir. 1971)). The district court may also appoint a lawyer to represent the party. Id. (citing Westcott v. United States Fidelity & Guaranty Co., 158 F.2d 20, 22 (4th Cir. 1946)). A guardian ad litem may be appointed for an incompetent adult only (1) if he or she consents to the appointment or (2) upon notice and hearing. See Jessica G., 93 Cal. App. 4th. at 1187-88.

IV. DISCUSSION

A. Requests for Judicial Notice

Because the parties have filed four requests for judicial notice, the court addresses them first and in turn below.

1. Defendant's April 4, 2011 Request for Judicial Notice

In a request accompanying his motion for a competency hearing, Defendant asks the court to take judicial notice of "the following facts" pursuant to Federal Rule of Evidence 201: (1) "[t]hat the subpoenaed records of Donald T. Apostle, M.D. were filed with the court under seal pursuant to this court's order's dated March 10, 2011"; and (2) "[o]f the facts set out in the subpoenaed records of Donald T. Apostle, M.D. filed with the court under seal pursuant to this court's order dated March 10, 2011." Defendant's 4/4/2011 RJN, ECF No. 116 at 1-2. Plaintiff opposes Defendant's request. Plaintiff's Opposition to Defendant's 4/4/2011 RJN, ECF No. 200.

Under Federal Rule of Evidence 201, "[t]he court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). A "high degree of indisputability is the essential prerequisite" to taking judicial notice and "the tradition [of taking judicial notice] has been one of caution in requiring that the matter be beyond reasonable controversy." Fed. R. Evid. 201(a) & (b) advisory committee's notes (emphasis added). A court, then, may take judicial notice of undisputed facts contained in public records, but it may not take judicial notice of disputed ones. See Lee v. City of Los Angeles, 250 F.3d 668, 689-90 (9th Cir. 2001); see also Muhammad v. California, C-10-1449-SBA, 2011 WL 873151, at *4 (N.D. Cal. Mar. 11, 2011) (denying request for judicial notice of an address contained on a complaint filed in another case because the "underlying facts relevant to Plaintiff's residence are disputed and otherwise do not meet the requirements of Rule 201").

The court takes judicial notice of the fact that Defendant filed Dr. Apostle's subpoenaed records under seal pursuant to a court order because this information is generally known and readily determined by looking to the electronic case file in this case. See 3/11/2011 Order, ECF No. 112; Document E-Filed Under Seal, ECF No. 113; see also Lee v. Bender, C-04-2637-SBA, 2005 WL 1388968, at *8 (N.D. Cal. May 11, 2005) ("Court filings and orders are the type of documents that are properly noticed under Federal Rule of Evidence 201. Notice can be taken, however, `only for the limited purpose of recognizing the judicial act that the order [or filing] represents on the subject matter of the litigation.'") (quoting United States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994) (citation and internal quotation marks omitted).

But as Plaintiff correctly points out, the "facts" set out in those records are not matters properly subject to judicial notice because they are disputed, are not so commonly known in the community as to make it unnecessary to prove them, and are not found within a source of indisputable accuracy. See Plaintiff's Opposition to Defendant's 4/4/2011 RJN, ECF No. 200 at 8-9; see also N.D. ex rel. parents acting as guardians ad litem v. Hawaii Dept. of Educ., 600 F.3d 1104, 1113 n.7 (9th Cir. 2010) (denying judicial notice of facts contained in declaration from children that included observations regarding their behavior from parents and special education teachers); Lee, 250 F.3d at 689-90; Muhammad, 2011 WL 873151, at *4. As such, the court will not take judicial notice of the "facts" contained in Dr. Apostle's subpoenaed records.

2. Plaintiff's February 9, 2012 Request for Judicial Notice

In a request that accompanies her opposition to Defendant's motion for a competency hearing, Plaintiff asks the court to take judicial notice of (1) "a true and correct copy of the docket in Superior Court of California, County of Sonoma, Criminal Docket No. SCR-473862, spanning October 1, 2005, through January 19, 200, certified by the Clerk of the Court on February 6, 2012"; and (2) "a true and correct copy of the docket in Superior Court of California, County of Sonoma, Criminal Docket No. SCR-560168, spanning March 17, 2009, through June 22, 2009, certified by the Clerk of the Court on February 6, 2012." Plaintiff's 2/9/2012 RJN, ECF No. 203 at 1-2. Defendant has not opposed Plaintiff's request.

These dockets are from prior criminal actions involving Plaintiff, and they "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." See Fed. R. Evid. 201(b)(2). Indeed courts regularly take judicial notice, under Rule 201, of judgments, orders, actions and oral argument transcripts from other courts for this reason. See, e.g., Engine Mfrs. Ass'n v. S. Coast Air Quality Mgmt. Dist., 498 F.3d 1031, 1039 n.2 (9th Cir. 2007) (taking judicial notice of oral argument transcript); Holder v. Holder, 305 F.3d 854, 866 (9th Cir. 2002) (taking judicial notice of a state court decision and the briefs filed in that court); Conopco, Inc. v. Roll Int'l, 231 F.3d 82, 86 n.3 (2nd Cir. 2000) (taking judicial notice of judgment and Notice of Appeal from related state court action); Mike's Train House, Inc. v. Lionel, LLC, 472 F.3d 398, 411-12 (6th Cir. 2006) (citing a string of authorities that have taken judicial notice of judgment and/or records from other cases). Accordingly, the court takes judicial notice of them.

3. Defendant's March 3, 2012 Request for Judicial Notice

In a request accompanying his opposition to Plaintiff's motion to exclude Dr. Apostle's subpoenaed records, Defendant asks the court to take judicial notice of: (1) "the court's file containing ADMINISTRATIVE MOTION FOR ORDER TO SEAL RECORDS OF DONALD T. APOSTLE, M.D. and order thereon (Dkt. ## 110 & 112)"; (2) "SECOND ADMINISTRATIVE MOTION FOR ORDER TO SEAL RECORDS OF DONALD T. APOSTLE, M.D. and order thereon (Dkt. ## 193 & 196)"; and (3) "January 31, 2011 ORDER GRANTING MOTION TO DISMISS 12:19-21 (Dkt. # 106)." Defendant's 3/3/2012 RJN, ECF No. 209 at 1-2. Plaintiff opposes Defendant's request but only to the extent that Defendants asks the court to take judicial notice of "the court's file," which contains Dr. Apostle's subpoenaed records. Plaintiff's Opposition to Defendant's 3/3/2012 RJN, ECF No. 218.

As explained above, courts regularly take judicial notice, under Rule 201, of briefs and courts orders because they "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." See, e.g., Engine Mfrs. Ass'n., 498 F.3d at 1039 n.2; Holder, 305 F.3d at 866; Conopco, 231 F.3d at 86 n.3; Mike's Train House, 472 F.3d at 411-12; see also Fed. R. Civ. P. 201. Thus, the court will take judicial notice that the briefs and orders specified above were filed in this action. However, for the reason explained above, the court will not take judicial notice of "the court's file" or any "facts" contained in Dr. Apostle's subpoenaed records. See N.D., 600 F.3d at 1113 n.7; Lee, 250 F.3d at 689-90; Muhammad, 2011 WL 873151, at *4.

4. Defendant's April 25, 2012 Request for Judicial Notice

In a request accompanying his opposition to Plaintiff's motion to quash Defendant's subpoena of Dr. Apostle, Defendant asks the court to take judicial notice of: (1) "Document 117: Declaration of John J. Fritsch and Exhibits thereto in support of Motion re Competency of Annette Sharlene Elder-Evins"; (2) "Documents 110 and [110]-1: Administrative Motion and supporting Declaration of John J. Fritsch and exhibits thereto"; (3) "Document 119: `Judicial Notice of Subpoenas'"; (4) "Document 120: Motion to Compel Release of Raw Data and Test Administration and Scoring booklets of Dr. Donald T. Apostle/Motion to Compel Deposition of Dr. Donald T. Apostle"; (5) "Document 134: Notice of Motion for Contempt to Donald T. Apostle, M.D."; (6) "Document 127: Notice of Limited Appearance of Michael P. Esser for Purposes of Representing Plaintiff at Competency Hearing"; (7) "Document 177: Stipulation to Lift Stay of Deposition of Dr. Donald T. Apostle"; and (8) "Documents 193 through 193-3: Administrative Motion and supporting Declaration of John J. Fritsch and exhibits thereto." Defendant's 4/25/2012 RJN, ECF No. 223. Plaintiff has not opposed Defendant's request.

Again, courts regularly take judicial notice, under Rule 201, of briefs and courts orders because they "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." See, e.g., Engine Mfrs. Ass'n., 498 F.3d at 1039 n.2; Holder, 305 F.3d at 866; Conopco, 231 F.3d at 86 n.3; Mike's Train House, 472 F.3d at 411-12; see also Fed. R. Civ. P. 201. Thus, the court will take judicial notice that the briefs, declarations, exhibits, stipulations, notices, and orders specified above were filed in this action.

B. Plaintiff's Motion to Exclude Dr. Apostle's Records

Plaintiff moves the court for an order excluding Dr. Apostle's subpoenaed records because they were obtained and are being offered into evidence without her consent or authorization and they are too stale to be probative of her current mental state and thus are unfairly prejudicial. Plaintiff's Motion to Exclude, ECF No. 200. Defendant opposes her motion. Defendant's Opposition to Plaintiff's Motion to Exclude, ECF No. 208.2

1. Exclusion for HIPAA Violation

Plaintiff first argues that Defendant obtained Dr. Apostle's records in violation of the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), Pub. L. No. 104-191, 110 Stat. 1936 (1996) (codified at various sections of Titles 18, 29, and 42 of the United States Code). Plaintiff's Motion to Exclude, ECF No. 4-6.3

The relevant rules promulgated pursuant to HIPAA provide that "covered entities" such as care providers may disclose protected medical records4 without patient consent: (1) in response to a court order, provided only the information specified in the court order is disclosed; or (2) in response to a subpoena or discovery request if the health care provider receives adequate assurance that the individual whose records are requested has been given sufficient notice of the request, or if reasonable efforts have been made to secure a protective order. 45 C.F.R. § 164.512(e)(1)(i), (ii).5

Plaintiff did not consent to the disclosure of Dr. Apostle's records, no court order was issued requiring Dr. Apostle to produce his records, and no protective order has been entered in this case. Defendant subpoenaed Dr. Apostle's records in this proceeding, but it appears that Defendant did not make "reasonable efforts" to ensure that Plaintiff was given notice of the subpoena. Under 45 C.F.R. § 164.512(e)(1)(iii), "reasonable efforts" requires the party who serves the subpoena to provide the health provider with "a written statement and accompanying declaration demonstrating that":

45 C.F.R. § 164.512(e)(1)(i)-(iii). There is nothing in the record indicating that Defendant complied with these requirements, and Defendant does not contend in his opposition that he did.6 Therefore, the court finds that Defendant did not comply with the relevant HIPAA procedural requirements when he subpoenaed Dr. Apostle's records.7

The question that still exists, though, is whether violation of the HIPAA procedural requirements is a basis for excluding evidence. Neither party addresses the issue in detail, although Plaintiff does cite a New York appellate court opinion in which the court held that a patient's medical records obtained in violation of HIPAA are not admissible in a proceeding to compel the patient to accept mental health treatment. See In re Miguel M., 17 N.Y.3d 37, 44-45 (N.Y. Ct. App. 2011).

The court's own research yielded only a smattering of authority, none of it binding. Some courts have refused to exclude evidence obtained in violation of HIPAA because HIPAA does not provide parties with a private right of action. See Heilman v. Vojkufka, No. CIV S-08-2788 KJM EFB P, 2011 WL 677877, at *3-4 (E.D. Cal. Feb. 17, 2011) (denying plaintiff's request for an order prohibiting defendant from using plaintiff's mental health information that was obtained in violation of HIPAA, but entering a protective order); Smith v. Daniels, No. 1:07-CV-2166-RWS, 2010 WL 4882950, at * 6 (N.D. Ga. Nov. 24, 2010) (denying plaintiff's request to strike medical information submitted by defendants because HIPAA provides no private right of action); see also Webb v. Smart Document Solutions, LLC, 499 F.3d 1078, 1082 (9th Cir. 2007) (noting that "HIPAA itself does not provide for a private right of action.") (citing 65 Fed. Reg. 82601 (Dec. 28, 2000)). Other courts have quashed subpoenas that did not comply with HIPAA, but those courts did not bar the subpoenaing party from trying again. Tate v. NC Pepsi-Cola Bottling Co. of Charlotte, Inc., No. 3:09CV36-RJC-DSC, 2009 WL 3242117, at *1 (W.D.N.C. Oct. 5, 2009) (quashing plaintiff's subpoena for his own medical records because plaintiff had not yet provided HIPAA-compliant authorization); Hodge v. City of Long Beach, No. CV 02-5851(TCP)(AKT), 2006 WL 1211725, at *2 (E.D.N.Y. May 4, 2006) (quashing defendant's subpoena for plaintiff's medical records because it ran afoul of HIPAA's procedural requirements but noting that defendant "is free to serve [plaintiff's doctor] with a new subpoena that is HIPAA-compliant"). And New York case law suggests that the appellate court's holding in In re Miguel M. similarly allows for a subpoenaing party to correct his or her failure to satisfy HIPAA the first time. See In re Dolan, 930 N.Y.S.2d 425 (N.Y. Sup. Ct. 2011) (after discussing In re Miguel M. in detail, finding that until the petitioner "properly obtain[s] respondent's medical records either by court order or by respondent's permission," "the petitioner's expert cannot testify in this [assisted outpatient treatment] proceeding"). Still other courts, in both the civil and criminal contexts, have found that the suppression of evidence simply is not a remedy for a HIPAA violation. See Frye v. Ayers, No. CIV S-99-0628 LKK KJM, 2009 WL 1312924, at *3 (E.D. Cal. May 12, 2009) (acknowledging that HIPAA does not provide a suppression remedy but not reaching the issue because petitioner had not suffered any prejudice as a result of the HIPAA violation); State v. Yenzer, 195 P.3d 271, 712-13 (Kan. Ct. App. 2009) ("[I]n this case, [defendant] has not made a constitutional claim warranting suppression. Nor has she presented any authority to support her assertion that suppression is a proper remedy for a HIPAA violation."); State v. Straehler, 745 N.W.2d 431, 435-36 (Wis. Ct. App. 2007) ("HIPAA does not provide for suppression of evidence as a remedy for a HIPAA violation. Suppression is warranted only when evidence has been obtained in violation of a defendant's constitutional rights or if a statute specifically provides for suppression as a remedy.").

While not directly on point, the most illuminating Ninth Circuit case appears to be United States v. Frazin, 780 F.2d 1461 (9th Cir. 1986). In that case, defendant-appellant Alvin Frazin was convicted for mail and wire fraud, and for aiding and abetting mail and wire fraud, under 18 U.S.C. §§ 1341 and 1343. 780 F.2d at 1463. On appeal, Frazin argued that certain bank records and other information, which the Government (admittedly) had obtained in violation of the Right to Financial Privacy Act of 1978, 12 U.S.C. §§ 3401-22, ought to have been suppressed and excluded from evidence during his trial. Id. at 1464.

In examining Frazin's argument, the Ninth Circuit first considered whether the Right to Financial Privacy Act authorized a suppression remedy, and if not, whether a court could authorize one under its supervisory powers. Id. The court first explained that the Right to Financial Privacy Act "prohibits financial institutions from providing the government with information concerning their customers' financial records, unless either the customer authorizes the disclosure of such information or the government obtains a valid subpoena or warrant." Id. at 1465 (citation and footnote omitted). It noted that the statute was passed in response to United States v. Miller, 425 U.S. 435 (1976), in which the United States Supreme Court "affirmed the denial of a motion to suppress bank records obtained by an allegedly defective subpoena, on the ground that a bank customer has no constitutionally-protected privacy interest in such records." Id. (citing Miller, 425 U.S. at 440). It further noted that the final version of the statute required the Department of Justice to give bank customers 10 days advance notice of a government subpoena (during which time the bank customer could move to quash the subpoena) and provided for civil penalties against the government and financial institutions for obtaining or disclosing a customer's financial information without the requisite authorization. Id. at 1465-66. Notably, the statute explicitly provides that these remedies and sanctions are "the only authorized judicial remedies and sanctions" for its violation. Id. (citing 12 U.S.C. § 3417(d)).

The court then held against Frazin, explaining:

Id. at 1466 (footnote omitted).

Although it is not perfectly analogous—Frazin, after all, was a criminal case involving the suppression of evidence at trial and a different, though similar, statute—the reasoning behind it is instructive. Like the Right to Financial Privacy Act, HIPAA's general penalty provision, 42 U.S.C. § 1320d-5(a)(1), does not include a suppression remedy. Rather, it only provides for a civil penalty that can be assessed only against covered entities and their business associates (e.g., entities that typically have health care records); the penalty can be not more than $100 for each violation; and the penalty may be imposed only by the Secretary of the DHHS. See Crenshaw v. MONY Life Ins. Co., 318 F.Supp.2d 1015, 1029-30 (S.D. Cal. 2004) (noting 42 U.S.C. § 1320d-5(a)(1) ("Congress has stated its view of the appropriate penalty for a HIPAA violation.") and declining to exclude the testimony of defendant's expert witness). As other courts have noted, HIPAA does not have a suppression remedy. See Frye, 2009 WL 1312924, at *3. And where this is the case, it is inappropriate for the court to exclude evidence on this basis.8 Accordingly, the court finds Plaintiff's HIPAA argument unpersuasive.

2. Exclusion under FRE 403

Plaintiff also makes a second argument. She argues that Dr. Apostle's records should be excluded under Rule 403 because they have little probative value with respect to Plaintiff's current competence and, instead, carry an extreme risk of unfair prejudice. See Fed. R. Evid. 403 ("The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.").

Plaintiff argues, quite reasonably (though citing only criminal cases), that a party's competence is to be determined in the present. Plaintiff's Motion to Exclude, ECF No. 200 at 6-7 (citing Rees v. Peyton, 384 U.S. 312, 314 (1966) ("we shall . . . direct the District Court to determine Rees. mental competence in the present posture of things, that is, whether he has capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation") (emphasis added)); Maxwell v. Roe, 606 F.3d 561, 575 (9th Cir. 2010) (recognizing a change in competency within one month) (citing Miles v. Stainer, 108 F.3d 1109, 1113 (9th Cir. 1997)); Harris v. Driver, 2008 WL 4279636, at *4 (N.D.W.V. Sept. 16, 2008) (inquiring into competence "at the time of the hearing"). Defendant does not attempt to rebut this point. See generally Defendant's Opposition to Plaintiff's Motion to Exclude, ECF No. 208. Plaintiff then argues, again quite reasonably, that Dr. Apostle's records, which are from 2009, "have little bearing" on her competence in 2012. Plaintiff's point is well-taken, but it does not mean that Dr. Apostle's records have no relevance at all. Indeed, in Maxwell, one of the cases cited by Plaintiff, the Ninth Circuit explained that "it is undisputed that a `prior medical opinion on competence to stand trial' is `relevant in determining whether a further inquiry into competence is required.'" Maxwell, 606 F.3d at 575 (quoting Drope v. Missouri, 420 U.S. 162, 180 (1975)). This relevance, combined with the fact that the records are sought to be used before a judge in a competency hearing, rather than before a jury in a trial, supports the conclusion that they are not unfairly prejudicial and should not be excluded under Rule 403. Plaintiff's argument is unpersuasive.

Accordingly, because the court finds both of Plaintiff's arguments to be unpersuasive, the court DENIES her motion to exclude Dr. Apostle's medical records.

C. Plaintiff's Motion to Quash Defendant's Subpoena of Dr. Apostle and Defendant's Request to Present Oral Testimony from Dr. Apostle

On February 17, 2012, Defendant served Dr. Apostle with a subpoena that requires his appearance at Plaintiff's upcoming competency hearing and also requires him to bring his "entire file(s) related to [his] examination of" Plaintiff in 2009. Esser Declaration, ECF No. 215, Ex. A. Defendant requests that the court allow Dr. Apostle to present oral testimony at the competency hearing. Defendant's Second Request to Present Oral Testimony, ECF No. 207.9

Plaintiff moves to quash Defendant's subpoena of Dr. Apostle. Plaintiff's Motion to Quash, ECF No. 214. She also opposes Defendant's request regarding Dr. Apostle's oral testimony. Plaintiff's Opposition to Dr. Apostle's Oral Testimony, ECF No. 216.

The parties' arguments with respect to these motions are virtually identical to those presented with respect to Plaintiff's motion to exclude. For the reasons explained above, then, the court believes that Dr. Apostle's appearance and oral testimony is at least relevant to the determination of Plaintiff's competency. Therefore, the court DENIES Plaintiff's motion to quash and GRANTS Defendant's request to present oral testimony of Dr. Apostle.

D. Defendant's Motion for Competency Determination

As described above, Defendant moves for the court to determine whether Plaintiff is competent to proceed in pro per in this action. Defendant's Motion for Competency Determination, ECF No. 115. In support of his motion, he argues that Dr. Apostle's records indicate that Plaintiff previously was diagnosed with a mental illness and that her illness renders her incompetent to act as her own attorney in this action. Id. at 4-5. He also argues that Plaintiff's claims of competence are barred by the doctrine of judicial estoppel. Id. at 5-6. Plaintiff, through appointed counsel, opposes Defendant's motion. Plaintiff's Opposition to Defendant's Motion for Competency Hearing, ECF No. 202.

1. Judicial Estoppel

The court addresses Defendant's judicial estoppel argument first.10 The basis for Defendant's argument is his claim that the Sonoma County Superior Court dismissed the criminal case against Plaintiff because it determined that Plaintiff was not competent to stand trial. Defendant's Motion for Competency Determination, ECF No. 115 at 5 ("The state court concluded that [Plaintiff] was not mentally competent to represent herself in pro se in defense of the criminal charges, and [Plaintiff] was successful and able to obtain a dismissal of the criminal case.").

Defendant's characterization of the Sonoma County Superior Court's dismissal in inaccurate. As Plaintiff points out, although the Sonoma County Superior Court did appoint a public defender pursuant to California Penal Code § 1368 (requiring a court to appoint an attorney for a defendant in a criminal case if a doubt arises in the mind of the judge as to the defendant's mental competence), the court dismissed the charges against Plaintiff pursuant to California Penal Code § 1385 (allowing a court to dismiss charges against a defendant "in the interests of justice"). The court did not at any time make any finding with respect to Plaintiff's competence or cite to California Penal Code § 1370.2, the statute governing the dismissal of misdemeanor criminal charges against defendants who are found to be incompetent. Because the Sonoma County Superior Court never made any findings as to Plaintiff's competence and did not dismiss the charge against Plaintiff under the statute governing dismissals of charges against incompetent defendants, Defendant's judicial estoppel argument fails.11

2. Competency Hearing

As discussed in the section on Plaintiff's motion to exclude Dr. Apostle's records, the court found that Dr. Apostle's records from 2009 are relevant to the competency inquiry here but are not on their own dispositive of the issue of Plaintiff's competence in 2012. See Maxwell, 606 F.3d at 575 ("[I]t is undisputed that a `prior medical opinion on competence to stand trial' is `relevant in determining whether a further inquiry into competence is required.'") (quoting Drope, 420 U.S. at 180). The issue then is, how are the parties to move forward with the competency inquiry.

One issue is whether Plaintiff should undergo a new medical examination to allow the court to make a competency determination based on fresh evidence and expert opinion testimony. If Plaintiff did not cooperate, the court then would have discretion to dismiss the case without prejudice. See Krain, 880 F.2d at 1121. Indeed, Plaintiff said in her motion that she prefers dismissal without prejudice to the appointment of a guardian ad litem. Plaintiff's Opposition to Defendant's Motion for Competency Hearing, ECF No. 202 at 14. The court believes a new evaluation is appropriate. But at the hearing, the parties disputed who should pay for the evaluation. Also, the court discussed with Plaintiff's counsel how Plaintiff might be able to provide relevant information through, for example, any physician that she has already. Finally, Plaintiff's counsel suggested that—given that the court denied the motion to quash the medical records—the first step should be a hearing with Dr. Apostle. At that hearing, the court could consider that evidence and any other evidence that Plaintiff might offer. If that were not sufficient to satisfy the court about Plaintiff's competency, then the court could order a separate competency evaluation. Also, because the competency assessment implicates Plaintiff's due process rights, she must be present at the evidentiary hearing. That would give the court the opportunity to inquire whether she would cooperate with the evaluation and to provide her with direct notice that the consequence of non-cooperation might be dismissal of her case without prejudice. It also would postpone the issue of who pays for the new evaluation until the record is clear that a new evaluation is needed and Plaintiff would cooperate.

Accordingly, with the parties' agreement, the court set an evidentiary hearing on September 27, 2012. At that hearing, Defendant will offer Dr. Apostle as a witness, and the parties may present any other testimony or evidence. They should meet and confer to set a schedule for the exchange of any further evidence. They shall meet and confer at least three weeks before the hearing about their pre-hearing filings. Two weeks before the hearing, they should file a joint pre-hearing statement with all undisputed facts. They should attach to that statement the following: (a) the parties' specific, signed stipulations that can be introduced as evidence at the hearing; (b) a joint exhibit list that complies with the requirements of the court's pretrial order (attached); and (c) each party's separate witness list that complies with the requirements of the court's pretrial order.

The court further orders that Ms. Elder-Evins must appear personally at the evidentiary hearing.

Another issue is that so far, Plaintiff's counsel has not reviewed the medical records because of Plaintiff's motion to suppress the records. Given that the court has denied that motion, the court directs the parties to meet and confer to reach a protective order to protect the confidential medical information in the case. They then should submit their stipulated protective order for this court's review and approval.

The court also was concerned that defense counsel had subpoenaed Dr. Apostle to appear in court with his full medical file. That suggested that defense counsel might not have the full file already, and that in turn is a concern because Plaintiff's due process interest in a competency hearing requires prior notice to her of the materials that Dr. Apostle relies on. As part of their meet-and-confer process, the parties should ensure that Plaintiff has a full opportunity to review in advance the medical information to be submitted at the hearing. If Plaintiff plans to offer her own assessment, the parties should discuss that at the conference, too.

The court also issues this ruling about who pays for any further competency evaluation. If the court orders it, Defendant—as the party who moved for the determination of Plaintiff's competency—shall pay for it. Although there is a dearth of authority on this issue in the Rule 17 context, courts appear to require the moving party to pay for the examination in the Rule 35 context. See Duarte v. Wong, No. C 05-01374 CW (PR), 2007 WL 2782940, at *9 n.4 (N.D. Cal. Sep. 24, 2007) ("When the mental or physical condition of a party (or a person under the custody or legal control of a party) is at issue in a lawsuit, Rule 35 of the Federal Rules of Civil Procedure allows the court to order that person to submit to a physical or mental examination. The examination must be done by a suitably licensed or certified examiner, such as a physician or psychiatrist. The party who requested the examination must pay for it."); Klein v. Yellow Cab Co., 7 F.R.D. 169, 170 (N.D. Ohio 1944) ("The expense of the examination provided for shall be borne by the [moving] defendant."); see also 8B Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure, § 2234 (3d ed. 2010) ("The party being examined must be his or her own expenses for coming to the examination and bear the loss of time thus caused. The moving party must bear the expense of the examination itself.") (citations omitted). In a written order before the June 21, 2012 hearing, the court informed the parties that they should be prepared to discuss at the hearing the issue of who should pay for a new competency examination. 6/19/2012 Order, ECF No. 227 at 1-2. Defendant did not cite any authority on this issue although it said that it did not want to pay. Without any authority to the contrary, the court believes that the analogy to the Rule 35 context is appropriate and sees no reason to depart from the reasoning mentioned above.

Another issue that may come up at the September 27, 2012 hearing is who should conduct the new examination. Defense counsel noted that Dr. Apostle is used by the court system in Sonoma county, and the court observed that the district court uses Dr. John Chamberlain of the University of California — San Francisco's Department of Psychiatry. Because the court may order that further evaluation, the parties should meet and confer before the September 27, 2012 hearing to select a qualified doctor.

V. CONCLUSION

Based on the foregoing, the court DENIES Plaintiff's motions to exclude and to quash and GRANTS Defendant's motion to present oral testimony. Furthermore, the court orders an evidentiary hearing to take place at 2:00 p.m. on September 27, 2012. Ms. Elder-Evins shall appear at that hearing.

IT IS SO ORDERED.

Following the Case Management Conference held on ____________, the Court HEREBY ORDERS the following:

I. GENERALLY APPLICABLE RULES

Parties shall comply with the procedures in the Federal Rules of Civil Procedure, the local rules, the general orders, Judge Beeler's standing order, and the Northern District's general standing order for civil cases titled "Contents of Joint Case Management Statement." Local rules, general orders, general standing orders, and a summary of the general orders' electronic filing requirements (including the procedures for emailing proposed orders to chambers) are available at http://www.cand.uscourts.gov (click "Rules" or "ECF-PACER").

II. CASE MANAGEMENT AND TRIAL DATES

All hearings shall be held in Courtroom C, 15th Floor, U.S. District Court, 450 Golden Gate Avenue, San Francisco, California. The following are the disclosure, filing, and hearing dates for the case:

II. ALTERNATIVE DISPUTE RESOLUTION

The parties agree to participate in [choose as appropriate:] [mediation] [early neutral evaluation] [a settlement conference] with [the Court's Alternative Dispute Resolution program] [JAMS][a private mediator] [another magistrate judge of this court] to occur by the date specified in the above chart if possible. [include if appropriate:] [The settlement conference judge will contact the parties with a date and time for the settlement conference.] The parties shall notify the Court promptly if the case resolves.

III. DISCOVERY PROCEDURES

A. The parties shall comply with the procedures regarding discovery and discovery disputes in Judge Beeler's standing order.

B. Each side shall be limited to ten depositions and twenty-five interrogatories, as provided by Federal Rules of Civil Procedure 30 and 33, absent a further court order.

C. If the ADR specified in the previous section is being conducted before the discovery cut-off deadline, counsel must meet and confer in person or by telephone no later than 21 days before the ADR and before preparing any exchanged or confidential settlement statements required by the ADR process. The purpose of the meeting is to identify and exchange whatever discovery is needed for all sides to evaluate the case for settlement. Counsel shall cooperate in providing discovery informally and expeditiously before ADR.

[include if appropriate:] In addition, before the parties participate in the ADR specified in the previous section, each party shall be limited to three depositions each absent stipulation or a further order of the Court.

IV. MOTIONS

The parties shall file any motions, oppositions, and reply briefs on the schedule set forth in Civil L. R. 7. The parties also shall file the procedures in Judge Beeler's standing order regarding statements of fact in summary judgment motions.

V. PRETRIAL FILINGS AND PROCEDURES

A. 21 Days Before Final Pretrial Conference. The exact date is in the chart above. The parties shall file the following:

1. Joint Proposed Final Pretrial Order (instead of a joint pretrial conference statement) that contains the following:

The parties should append the following to the proposed order: (a) the parties' specific, signed stipulations in a form that can be introduced as evidence at trial; (b) a joint exhibit list with columns for exhibit number, offered into evidence, admitted into evidence, sponsoring witness, limits on use, and description and bates range (see section V.C regarding numbering and organization of exhibits); and (c) each party's separate witness list for case-in-chief witnesses (including those appearing by deposition) summarizing their testimony, specifying separately their non-cumulative testimony, and providing an hour-and-minute time estimate. Experts and witnesses not included in the witness list may not be used in a party's case-in-chief.

2. Motions In Limine. Each motion shall be in a separate memorandum entitled "[Party's Name]'s Motion in Limine [#] to Exclude [Subject]," be limited to circumstances requiring advance ruling, and be no longer than seven pages absent leave of court. Usually five motions in limine are sufficient.

3. Joint Proposed Findings of Fact and Conclusions of Law and Each Side's Separate Disputed Proposed Findings of Fact and Conclusions of Law. Conclusions of law that rely on substantive law instructions from the Ninth Circuit Manual of Model Civil Jury Instructions (2007) (available at http://www.ce9.uscourts.gov), California Civil Jury Instructions (CACI), or other applicable instructions should cite those instructions and clearly identify any modifications to the instructions. All conclusions of law — disputed or undisputed — shall be supported by citation (including pin cites) in the format used by the Ninth Circuit Manual.

4. Separate Memoranda on Conclusions of Law. Each party should file a memorandum of law regarding disputed conclusions of law.

5. Trial Briefs On Any Issues of Law.

6. Copies of Federal Rule of Civil Procedure 26(a)(3) Disclosures. See Section V.D for procedures regarding designation of depositions. By designating an exhibit, a party generally waives any objection to it if offered by the other side absent clearly available objections (such as objections under Rules 402 and 403 or admissions by party opponents that would be inadmissible hearsay if offered by the party opponent).

7. Wordperfect or Word Versions Emailed To Chambers. In addition to e-filing and lodging paper copies of all filings, see Judge Beeler's standing order, counsel shall email the joint proposed order and the proposed findings of fact and conclusions of law in Wordperfect or Word to lbpo@cand.uscourts.gov.

B. 14 Days Before Pretrial Conference. The exact date is in the chart above. The parties shall file the following:

1. Oppositions to Motions In Limine. Each opposition shall be in a separate memorandum entitled "[Party's Name]'s Opposition to Motion in Limine [#] to Exclude [Subject]," link electronically to the prior e-filed motion in limine, and be no longer than seven pages absent leave of court.

2. Objections to Exhibits and Use of Depositions as set forth in Federal Rule of Civil Procedure 26(a)(3)(B). Objections not raised are waived.

3. Lodge Joint Set of Trial Exhibits with Deputy Clerk. The parties must prepare a joint, single set of all trial exhibits. See V.C (regarding exhibit numbering and organization). The exhibits shall be in three-ring binders, and each exhibit must be tagged and separated by a label divider identifying the exhibit number. Spine labels should identify the exhibits in a particular binder. The exhibit binders should be marked ""Original" and will be the official record both at trial with the witnesses and on appeal. Lodge the exhibits with the deputy clerk, Lashanda Scott.

4. Lodge Second "Chambers Copy" of Joint Set of Trial Exhibits. The parties shall lodge (not file) a second "chambers copy" of the binders of trial exhibits referenced in the preceding paragraph. Those binders should be marked "Chambers Copy."

5. Copies of Deposition Designations For Witnesses Appearing Only By Designation. See V.D (transcript designation procedures and process for filing copy with the Court).

6. Copies of Designation of Interrogatories and Admissions. See V.E (procedures and process for filing copy with the Court).

C. Exhibit Numbering and Organization

1. Meet and Confer Re Exhibit Numbers. Before submitting exhibit lists and binders, counsel must meet and confer to establish usable numbering conventions and eliminate duplicate exhibits. Use numbers only, not letters, and if possible, exhibit numbers should be the same numbers used in depositions. Otherwise, the deposition transcript must be conformed to the new exhibit number to avoid confusion and to ensure that every exhibit has a unique number. Blocks of numbers should be assigned to fit the needs of the case: e.g., Plaintiff has 1 to 99, Defendant A has 100 to 199, Defendant B has 200 to 299, et cetera. All exhibits should be marked "Trial Exhibit No. __," not Plaintiff's Exhibit or Defendant's Exhibit.

2. Exhibit Tags and Binders. The exhibit tag shall be in the following form:

The tag should be on or near the lower right-hand corner if possible and on the back if it is not. Counsel should fill in the tag but leave the last two spaces blank.

D. Deposition Designation For Witnesses Appearing By Deposition. These procedures apply only to deposition designation for witnesses who appear by deposition and do not apply to reading depositions of live witnesses into the record while the witnesses are testifying.

1. Designating Counsel. To designate deposition testimony, counsel shall photocopy the cover page, the page where the witness is sworn, and each page with any proffered testimony (with lines through testimony not proffered). Counsel shall put lines through objections or colloquy unless they are needed to understand the question. Any corrections (including conforming exhibit numbers to trial exhibit numbers) shall be done by hand. The finished packet should be the script that allows smooth presentation of the witness, the oath, and the testimony. The packet must be provided to the other parties at least 30 days before the pretrial conference. For voluminous designations, the Court requires advance notice by designating counsel because more lead time is required. Counsel must be reasonable.

2. Reviewing Counsel. Reviewing parties must promptly review the packet and highlight in yellow any passages objected to and write in the margin the legal basis for the objections. If a completeness objection is made, the objecting party must insert the additional passages needed to cure the completeness objection. A completeness objection generally should be made only if a few extra lines will cure the problem. Such additions shall be highlighted in blue, and an explanation for the inclusion shall be legibly handwritten in the margin. Counsel must line out any irrelevant portions of the additional pages. Reviewing counsel must return the packets to the proffering party to consider whether to accept the adjustments.

3. Counsel To Meet And Confer Re Adjustments. Counsel must meet and confer to address reviewing counsel's comments and any other issues.

4. Designating Counsel To Assemble Final Packet. Counsel for the proffering party must collate and assemble a final packet that covers all remaining issues and provide it to the Court 14 days before the pretrial conference (as required by section V.B.5). Any objections must be highlighted and annotated as described in the preceding paragraphs. If exhibits are needed to resolve the objections, designating counsel should include copies, with the relevant passages highlighted and tagged. The Court will read the packet and make its rulings in the margins in a distinctive manner.

5. Counter-Designations. The reviewing party must make any counter-designations by providing a packet with the counter-designated passages to the original designating counsel at the same time as the reviewing party returns its objections to designating counsel. The original designating counsel must supply any objections in the manner described in this section.

6. Video Depositions. The parties shall follow the same procedures to facilitate ruling on objections. The videos should omit dead time and objections and colloquy not necessary to understand the answers.

E. Requests For Admissions And Interrogatories. Please designate responses to requests for admissions and interrogatory answers in the same manner and under the same timetable as deposition designations.

VI. PRETRIAL CONFERENCE

Lead counsel for each party shall attend.

VII. PRETRIAL ARRANGEMENTS

A. Daily or Real-Time Reporting. Please make arrangements ten days before the trial date with Debra Campbell, Supervisor of the Court Reporting Services, at 415-522-2079.

B. Electronic Presentation of Evidence. The Court provides no equipment other than an easel. If counsel will use electronic equipment such as computers, projectors, and screens, the parties should share equipment to the extent possible. Extension cords should be taped to the carpet for safety. The United States Marshal requires a court order to allow equipment into the courthouse. Please work with Lashanda Scott (415-522-3140) on all courtroom layout issues.

VIII. TRIAL AND TRIAL PROCEDURES

A. Schedule. The trial day is 8:30 a.m. to 1:30 p.m. (or slightly longer to finish a witness) with two fifteen-minute breaks, Monday through Friday.

B. Time Limits. Ordinarily, the Court sets time limits for opening statements, witness examinations (direct, cross, or re-direct), and closing arguments at the final pretrial conference. All of your examination time for all witnesses must fit within your witness time limits. The time taken at a side bar or on objections will be charged to the examining party unless otherwise ordered.

C. Opening Statements. Counsel must meet and confer about, and exchange, any visuals, graphics, or exhibits to be used in the opening statements, allowing for time to work out objections and any reasonable revisions.

D. Advance Notice of Witness Order of Proof. By 2 p.m., counsel must give written notice of the order of witnesses for the next court day and the exhibits (including merely illustrative exhibits) to be used on direct examination (other than for true impeachment of a witness). The parties shall notify the Court by the end of the day of any objections to the exhibits, and the Court will schedule a conference that afternoon or the following morning to resolve the dispute. The Court encourages two days' notice. If two days' notice is given, then by 2 p.m. on the calendar day immediately preceding the testimony, opposing counsel must provide any objections to the exhibits and shall provide a list of all exhibits to be used with the same witness on cross-examination (other than for impeachment).

E. Witness Examinations. Generally there should be only one examining lawyer per witness per party, and the examining lawyer must make any objections to the opposing counsel's examination. The parties shall have witnesses ready to testify so that trial gaps are avoided. Gaps may be construed as resting one's case. In cases with multiple parties, counsel must coordinate cross-examination to avoid duplication of testimony. When multiple parties are on one side, only one counsel may cover a subject matter. Counsel shall place copies of exhibits to be used by a witness on the witness stand before the witness testifies.

Witnesses (except named parties) are excluded from the courtroom except when they are testifying. If a testifying witness has not been excused before a recess, that witness shall be seated back on the stand when the court reconvenes. If a new witness is ready to be called immediately after a recess, the witness should be in the first row after the recess. Counsel should refrain from eliciting testimony about undisputed facts set forth in stipulations filed with the court. The appropriate party or the Court may read into the record the undisputed facts at appropriate points in the trial.

F. Expert Testimony. Direct expert testimony is limited to matters disclosed in the expert's reports. Omitted material ordinarily may not be added on direct examination. Illustrative animations, diagrams, charts, and models may be used on direct examination only if they were part of the expert report, except that an expert may use simple drawings (such as those drawn by the witness at trial) that plainly illustrate a report's contents. If cross-examination fairly opens the door, however, an expert may go beyond the written report on cross-examination and/or re-direct examination. By written stipulation, all parties may relax these requirements. As to damages studies, the cut-off for past damages is the date of the expert report (or an earlier date selected or used by the expert). Experts may project future damages after this cut-off date if they can meet substantive standards for future damages. With timely leave of Court or by written stipulation, the experts may update their reports (or provide supplemental reports) to a date closer to the time of trial.

G. Use of Depositions To Impeach A Trial Witness. The following procedures apply.

1. On the first day of trial, counsel shall bring the original and clean copies of the depositions to be used at trial. If counsel might use a deposition against a witness, counsel shall provide the Court with a copy at the outset of the examination. Opposing counsel should have copies of witness depositions immediately available.

2. Counsel should seek permission from the Court before reading a passage into the record. For example, counsel should state, "I wish to read page 210, lines 1 to 10, from the witness's deposition." Counsel should pause briefly to allow any objection.

3. The first time counsel reads a deposition, counsel should state the deponent's name, the name of the lawyer asking the question, and whether the deposition was a Federal Rule of Civil Procedure 30(b)(6) deposition.

4. When reading the passage, counsel shall employ the following technique. Counsel shall state,"question" and then read the question exactly, and then state, "answer" and read the answer exactly. This will allow the Court and the court reporter to follow who said what at the deposition. Opposing counsel may ask to read additional testimony necessary to complete the context. It is not necessary to ask, "didn't you say XYZ in your deposition" to lay a foundation.

H. Use of Depositions of Party-Deponents. Subject to Rule 403, a party's depositions may be used for "any purpose" and may be read into the record whether or not they contradict (and regardless of who is on the stand). For example, a short party deposition excerpt may be used as foundation for questions for a different witness on the stand.

I. Use of Depositions For Witnesses Appearing Only By Deposition. When the packet (see V.D for procedures to assemble deposition packets) is read in court, the examiner shall read the questions (and any relevant colloquy) from the lectern while a colleague sits in the witness stand and reads the answers. While reading the deposition, the reader and "witness" shall refrain from undue emphasis or dramatization. If a read-in is short, a single attorney can read it all, being careful to say "question" and "answer" so the record is clear. Exhibits may be projected onto the screen as they are referenced. Court reporters do not transcribe video excerpts so counsel must file an exact copy of what was shown.

J. Exhibits. At the end of each day, counsel must confer with each other and with the deputy clerk to confirm what exhibits are in evidence and any limitations on their use. Counsel should bring any differences to the Court's attention. Similarly, before closing argument, counsel must confer with each other and the deputy clerk to finalize the exhibits and prepare any final exhibit list. That list may include a brief non-argumentative description of the exhibit to help the Court access the exhibits.

K. Stipulations. Counsel must read all stipulations for them to be part of the record.

L. Objections. Counsel shall stand when making objections, give only the legal basis ("objection, calls for speculation" or "objection, hearsay"), and refrain from making speeches.

IT IS SO ORDERED.