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UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

MICHAEL ASBERRY,

NO. CIV. S-01-2343 LKK/PAN

“Asberry I”

Plaintiff,

v.

CITY OF SACRAMENTO/SANITATION 

DEPARTMENT,

Defendant.

 /

MICHAEL ASBERRY,

NO. CIV. S-04-2467 LKK/PAN

“Asberry II”

Plaintiff,

v. O R D E R

CITY OF SACRAMENTO, et al.,

Defendants.

 /

In Asberry I, No. Civ. S-01-2343, plaintiff has raised

objections which bear on the final pretrial order and trial in the

above-captioned case. Plaintiff objects to defendant’s addition

of two witnesses to its witness list in the pretrial order, Lori

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Swinehart and Patty Velasquez. Plaintiff contends he is prejudiced

by this augmentation because he has not had the opportunity to

depose or discover the alleged percipient knowledge of these two

witnesses. On April 28, 2006, the court directed defendant to file

a motion to augment the pretrial order and gave plaintiff the

opportunity to respond. I address plaintiff’s objections to

witnesses based on the parties’ papers.

Plaintiff initially objected to the inclusion of Ms. Velasquez

on the ground that she was not identified during discovery. The

court has examined the parties’ papers and attachments and it is

clear that Ms. Velasquez was identified in defendant’s Rule 26

disclosure. Plaintiff concedes in her response brief that

defendant did, in fact, list Patty Valasquez in its Rule 26

disclosure in April 2002, but “without any address or telephone

number in violation of FRCP 26(a)(1).” Pl.’s Opp’n at 2. 

Plaintiff also explains that she did not depose Patty Velasquez

because none of the deposed witnesses testified about any

information Ms. Velasquez might possess. Because plaintiff

concedes that Ms. Velasquez was identified by defendant pursuant

to Rule 26, and because plaintiff made a decision at that time not

to depose this witness, she cannot now object to defendant’s

inclusion of Ms. Velasquez on the witness list. Plaintiff’s

objection as to Patty Velasquez is OVERRULED.

Plaintiff also objects to defendant’s inclusion of Lori

Swinehart on the witness list, which both parties concede was not

listed in the original Pretrial Statement of June 18, 2003. 

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Defendant, however, explains in its motion to augment that Ms.

Swinehart was added to the list “in the event that Frances Gould,

who was retired from the City, is incompetent to testify about the

benefits defendant would have received during his 7 month hiatus.”

Def.’s Mot. at 2. Defendant also explains that Ms. Swinehart is

a benefits manager and that “because Ms. Telfer did not depose

Frances Gould, it is unlikely she would have deposed Ms.

Swinehart.” Id. Having considered the parties’ arguments, the

court shall amend the witness list to include Lori Swinehart who

will testify only if Frances Gould is “incompetent to testify” and

only as to the benefits that plaintiff would have received in the

“seven month hiatus.” The final pretrial order in Asberry I will

reflect this amendment.

In both Asberry I & II, the court previously issued an order

on April 28, 2006 notifying the parties that the court will take

up any objections the partes have raised with regard to exhibits

on June 6, 2006 at 10:30 a.m. That hearing is CONTINUED to 1:30

p.m. on the same date. The parties are notified that the court

will also rule on the motions in limine filed by defendant at that

time. 

IT IS SO ORDERED. 

DATED: May 16, 2006.

/s/Lawrence K. Karlton

LAWRENCE K. KARLTON

SENIOR JUDGE

UNITED STATES DISTRICT COURT

Case 2:04-cv-02467-LKK -PAN Document 94 Filed 05/17/06 Page 3 of 3