appellate first of all i wanted to mention here most importantly that what happened in this trial with mr forbes was a gross injustice he was prevented from presenting evidence that would have swayed it at least a balance the competing theories of both cases we had an officer in this case who claim he did nothing from the very outset very outset of the litigation of his case from the very beginning their theory was it was a non opportunity to question him about anything that happened and so everything was going smoothly we were a trial in the midst of trial defense counsel had agreed with me and redline portions of the deposition transcript that we would read on the record so that if i mean what i did not know what that we do not know what we took as that position that's what i want so the first time you learned that he was not going to be in custody on the date of trial was when you took the deposition a couple weeks later that's correct it and i had the check in my hand i didn't we you know in the midst of trial and the tension of trial and everything was happening it coming off guard going to the port asked me where's the proof that i had paid him a check and i try to you know in my mind go back to what had happened and i could really come up with an explanation i did recall that i specifically tried to give him a check but that the witness is kind of ironic with the witness himself in the car straight a person knew them and he said i can i give him a check according  and at that point he said i can't take this check because i'm incarcerated that's correct and at that point you didn't know that he would no longer be incarcerated by the time and i did not say that at the deposition he tells you i'm going to get out soon  after i knew he wasn't available for trial was looking all over the place i was calling to jail i was calling to publish an office i called the center the rehab centers that i needed just in orange county and they would not give me any information because of the privacy rights so it's it's ridiculous to believe that somehow i had an opportunity to find him in a rehab center when he had a right to be in there without nobody knowing where he was at under the because of the privacy rights that he had is it in the record that you called the i believe it was the next day at trial at the during the course of trial it was at the far right but it's really of a real i'm weird situation because there is a section that says  eighteen eighteen us eighteen twenty one f that says that you cannot give a witness a witness feed to depose him if he's incarcerated and i that's not quite what he says if it's just listen sure he's saying he was going to be released but you know when someone's incarcerated there's sometimes allays there's things that happen and how am i supposed to guess or assume for sure he's going to be released the fact that matter is that the set the statute says say that you contacted the probation office and the orange county jail and the county of orange parole office but i don't see anything about it saying that you contacted rehab offices is that somewhere else in the record is that on my that's your declaration i think your mr quis are right that's key yes is that your declaration paragraph seven that you are one sixteen doesn't say that you contacted the rehab facilities which i think you had reason to believe he was in s facility so i understand what you're saying now that you called rehab facilities but i'm wondering if the district court had a way to know that i i have no recollection of that exact fact that i would be misleading the court if i said i did do that for sure but i recall i'm telling you your that i did do that i went i've been i would i had an investigator try to look but it seems like that fact might be important for whether the district court abused its discretion because the district court was trying to figure out what efforts had been made to find this witness and the efforts that you made are significant so was there also is there anywhere where you said that on that transcript that the rehab facilities keep confidential records and so you tried but you couldn't succeed your honor with that right on going to you he did it right where we need to go because i was trying to make that record besides me there to ration i was trying to explain to the court and he couldn't cut my feet off and said no that's it no more record you're going to talk about this the more that's very clear in the record that he did that and basically jail who is alleging a police officer use excessive force and you're already under that under that under that the balance is already starting off and even because you have the quick the officer generally has more credibility right off the back so i thought there was a general admitted he complained he was on the floor and he was in agony and they had other inmates had to help him into his cell but he had opportunities to just come to complain to others that he had been injured and he did that that's true but in the orange county sheriff he had he when i took his deposition he gave me a promise and he said it was an appear that it would be a problem and i said if you have any problems getting to court of a pick you up or i get someone to pick you up and bring you to court so i think that's worth trying to figure out so so when trial started had i assume you made some efforts to get in touch with your key witness and make sure that he was going to be there and you did you already know that you couldn't find him and as of the start of trial i believe i sure that in fact he was going to be there but when the trial started you knew that he had disappeared and you couldn't find him and is that right ok so so and you knew that you know that you had this deposition and you intended to ask the court for permission to read it on the on the you're not i mean they can test that in their briefs i wanted to hear what you had to say about that they said that they didn't let you know well in advance that they were going to agree to that that's a total mischaracterization of what actually happened he sat down with me and he picked this next of the t difference as opposed to a deposition task of how many of the i don't see how i mean defense counsel had to anticipate that he might lose this issue and so therefore it was it was in his professional obligation to review the transcript which i don't understand now going over the transcript with you shows that he was not going to object you know professional courtesies i've been doing to civil rights i've worked for twenty seven years and i the court to give me leave to you would maybe continue to trial so we would end up in a situation like this but it was a caught me off guard when i try to read from it because i was under the impression it was every everything was good it was former testimony under oath he cross examine this witness he had an opportunity to question him and and there was no reason why it should not be admitted i mean it went right to the chief right to the heart of what happened here this witness testified that he saw the plaintiff going up against  the jury deciding i don't mind losing a fight but i don't i don't i do mind losing a fair and has to be a fair fight and this is not a fair fight when they prevented us from from from having that witness testifying that was not fair fun it was fundamentally just simply unfair  let me ask you because i i'm not familiar with the way things are done in california why don't you call the other side and tell him about what about the witness problem i mean and i would think in maryland that's what the morning honors david lawrence on behalf of happily daniel via you please a court let me first address counsel's assertion that he was somehow sandbag about whether or not we would object to the introduction of the deposition testimony no fewer than seven locations in the record do we assert that there was no evidence that he was on the table and i'll cite the court for the record august august seventh this is when  filed a notice of intent to read the deposition again we said we did not agree that he was unavailable and we requested the proof of subpoena that's in the excerpts of record of fifty six and sixty seven the next day aug thirteenth of two thousand and seven we stated we did not agree that he was unavailable that we had not received the proof of service and there was no agreement to the retreating of the deposition the next day can you give us the e r pages for you i'm sorry on that one that's that's excerpt of the record page fifty six and sixty nine on august fourteenth of two thousand and thirteen there was a follow up letter reiterating our position that he was not unavailable and that's at the excerpts of record that pages fifty six and seventy one on the fourteenth we suggested to point this counsel that he checked the sober living center that the witness had identified at his deposition to see if he was there that's at the excerpts of record at pages fifty six and seventy three on aug sixteenth of two thousand and thirteen we filed our counter designation and in our counter designation of the testimony we stated quote in the event the witness and we can solve this is unavailable for trial that's at the excerpts of record at page one thirty eight on august nineteenth of two thousand and thirteen we filed our objections to the use of the deposition with the court that's at the excerpts of record at page one thirty five and the supplemental excerpts of record at page seven ten trial began on aug twentieth and we continued to object when when when plaintive offered or attempted to offer the deposition testimony of the witness his surgeon that we somehow stand that plaintive by saying we rather the the subsection d so why why is it that the district court's ruling with respect to that provision is correct because let me tell you what my memory of the district  then you tell me if i got it wrong with respect to that subsection i thought all the court said was that service of the subpoena was invalid because witness fees were not tendered contemporaneously was service of subpoena right that's correct was a correct yes ok so that's why i was asking your opponent when he first learned that the witness was not going to be in custody as of the date of trial because when he served a subpoena on july tenth i gather you're not going to contest this he had no way of knowing then that the witness was going to be out of custody come the trial date a couple months later right i don't i don't know whether he knew that at that point what i do know well the record the only thing i saw on the record was the deposition testimony which occurred two weeks later and that's the first indication i saw that any of you all learned that this witness come the trial date was not going to be in custody so prospective witness who's in custody they have an obligation to do some kind of research into that person's release date to figure out whether or not they're going to be in custody come the the anticipated testimony and that says that strikes me as an  not a very sound rule and i haven't seen any authority that imposes so i think my view of the case is that on the date of the service of the subpoena the plaintiff book lawyer knew that the witness was in custody then he was entitled to assume that he was going to be in custody as of the date of the trial and therefore had no obligation to tender the fees and that and that's but as i said the sole reason i saw the district court give for rejecting the argument under subsection do so what's your response to that my response to that your honor is that the record shows that the subpoena was served on the tenth counsel stated on the twenty first august twenty first to the court that orange county  allow him to serve him would not allow him to give him fees later that same day on the twenty first and that's a supplemental xor for the record six eighteen and six nineteen later that same day  said that he gave a check to the witness at the deposition on july twenty fifth so we need don't just hang up here not just him tell me if i'm wrong of this i understood the district court to say that i'm not going to accept service of the subpoena as valid because on july tenth you did not tender witness fees to the witness that's correct ok but i'm just saying that that to how was the plaintiff's lawyer supposed to know on that day that he even had an obligation to tender witness fees unless you're saying that the law imposes some kind of a requirement that a person go and research the prospective person is not going to be in custody on the date of their anticipated testimony but he didn't know that i don't believe that twenty eight u s c section eight hundred twenty one f which i think your honor is referring to ok indicates that if the witness is in custody at the time the service is made that the feet don't have to be tendered what it says specifically is that quote any witness who is incarcerated at the time that his or her testimony is given that listen exception may not receive fees or allowances under this section regardless of whether such a witness and is incarcerated at the time he or she makes a claim for fees or allowances under the section now what the drug what the district court determined was that the point of that section was that if at the time of the testimony the person is incarcerated the taxpayers are paying for his expenses should be paid twice it doesn't say that if he's incarcerated at the time a subpoena is served that the that the witness fees are not to be tendered but if you don't know that the person is going to be out of custody come come the date of the anticipated testimony how are you supposed to know that your you have to feeds why why am i not if i'm in plaintiff's counsel shoes and i i know i'm going to call it at that point i guess the trial was a month there are so way i know the person is in custody i don't know anything about whether they're going to be released in the next four weeks or not so why am i not entitled to assume into why learn to the contrary that this person doesn't need to be given the witness fees because they're in custody right now because there's nothing in the excuses that exception under rule forty five the ten contemporaneous with the services so i have to do research to figure out before i try to serve a subpoena on zone i have to do research into their anticipated release date is out you're saying that what i'm saying is if if there if you're if you're the posing a witness who is in custody you have to see you have to tender those fees whether it's giving them the fees or the promise to give them the fees at a later time you have to do that at that point but you can't to do that if you think they'll still be in custody at the time of the trial when they need the testimony i don't see anything that says you can't do that and i don't see anything excuses the obligations assume he wasn't the let's assume he was going to stay in custody what do you think should have at the time of his or her testimony is given yes let's assume he would still be let's have a hypothetical the witness is in prison when you serve the subpoena and the witness will still be in prison at the time of the trial so that's the time of the testimony right what are you supposed to do when you you tender the fees to whom you witness but i thought you can't because the taxpayer is not supposed to double pay you reimburses though they'll give them back if you still incarcerated at the time he testifies he can't accept them if he's if he testifies at the time he's incarcerated the point is that he doesn't get the point is that the taxpayers don't pay twice they don't pay to have incarcerated and they don't pay to bring in the court counsel i think you're wrong on that point just respect disagree with you on that but so i guess my my issue is that i think service of the state of the trial subpoena was valid on july tenth ok so help me with this am i entitled as if i'm in p counsel shoes i've served this person with a subpoena and my own title just to assume that they will obey that and you know when when they don't show up you know that at that point i've done all that i could i did serve them w or and i required to do a whole lot more before the witness can be declared unavailable i haven't been able to find a lot of case for that speaks directly to that issue so i'd like to hear what you have to say about that i think you have to make a diligent effort to have them present for trial there wasn't that that when the stipulation was filed for the deposition we knew that the deposition would take place the twenty fifth and that he would be released to twenty eight and he never and trans counsel never i mean the point i mean that speaks for itself but he also never trial subpoena as of the date of the deposition so but you don't need to do anything more at that point the guy was going to be out of custody and he had been served with a valid subpoena to show up on this date in this courtroom to give testimony that's right and you think so you're saying that that's not enough that the plaintiff's lawyer has to do more to ensure that the person doesn't faction i think he has to show reasonable diligence to secure his appearance and try and i respectfully disagree with the issue regarding whether he had the tender fees i think the district court was correct and so now a stretch i think you're wrong on that so i'm just let's just assume that you're that and maybe my colleagues disagree with it but i'm not with you on that so i'm i'm assuming that we have a witness who has been served with a valid subpoena that commands him under court order to show up on a given date and the person doesn't show up we have a declaration i guess i want to hear what you have to say about it from plaintiff's counsel saying that i did have my investigator before trial go out and at least make some efforts to track this guy down and we can't find him so that's why i want to use this deposition right and i have not found any authority that requires a person who wants to was not a declaration of the investigator who had legibly made efforts to find the witness it did not mention going to the place where the witness said he would be which was owen's place in huntington huntington beach california so as as the district court acknowledged there was no competent evidence of any efforts to get him there because the court the district court considered that none the less in deciding whether or not an evidentiary error had been made but i guess what i'm asking is do you have any authority that says i have to do more than serve somebody with a valid subpoena and then you know if they don't show up i'm entitled to use their their deposition that these are some authority that says that speaks to that precise issue i don't believe so i don't have no i mean i have found cases that support your your position here when the person never tried to subpoena the witness and then just say oh i was kind of hoping that they would be here and that judge says well what are you talking you never even subpoenaed and if this person is not available get give me a break but when someone has been subpoenaed just seems to me doesn't the legal system assume that they're going to obey that order to show up so it seems a little bit odd to say that well the had to do a lot more you know like to track the guy down and stand but he talked about swelling to the face record doesn't show that what it shows is that when he was examined by medical staff at the jail that there was a quarter sized place i believe on the on his left cheek that was different than the other side but no swelling that was nine and there's an e mail to you saying i'm going to objects are you saying you didn't receive it the e mail that he's an object for it being an exhibit not that i don't believe it was that he was an object that we would read from the deposition transcript not as i have not agreed that he is unavailable and therefore i'm not agreeing that any portion of his deposition may be read at trial in an e mail to you on august thirteenth i do i simply don't remember that you know did you ever did he show you on his deposition that he would be out on spanish i believe he had said he would be at a rehab center he thought it was going to be this always place but he wasn't sure what rehab center was so i did call mean he says he's going to be there you can't go there because they have privacy rights you can go ask for a person's information or contact or speak to them one at a rehab center there was no way i could get a hold of them even with a subpoena i couldn't i couldn't talk him well him to be there and it just fundamentally unfair what happened in this case and we should have had the opportunity to have this witness you know to have been there when his testimony have made any difference absolutely if you have somebody saying that something happened to them and you have argument they even said that mr force was not worthy of it in any credibility because he's a two time loser so obviously if you had of a witness that would say i saw this it happened this way consistent with mr forbes that he he would have a fighting chance at least that was taken away from him that's not a fair trial our system of justice requires people to have a fair trial that's might that's right learn in law school and that's what i'll fight for to the very end thank you thank you counsel the cases