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16514482.1

Case No. 16-CV-6994-PJH

Stephen R. Jaffe (SBN 49539) 

THE JAFFE LAW FIRM

1 Sansome Street, Suite 3500 

San Francisco, CA 94104

Telephone: (415) 618-0100 

stephen.r.jaffe@jaffetriallaw.com

Attorneys for Relator STEVEN FALLON

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA 

OAKLAND DIVISION

UNITED STATES OF AMERICA, ex rel., 

STEVEN FALLON and on behalf of the 

STATE OF CALIFORNIA, ,

Relator, 

v. 

MATTHEW WAYNE; MIRIAM 

DELGADILLO; TAMMY WATSON, 

Defendants.

Case No. 16-CV-6994-PJH 

ORDER DENYING ADMINISTRATIVE 

MOTION (L. R. 7-11) FOR SCHEDULING 

ORDER RE: TRIAL SUBPOENA SERVED 

ON FORMER DEFENDANT AND THIRDPARTY WITNESS HAYWARD UNIFIED 

SCHOOL DISTRICT

MEMORANDUM OF POINTS AND AUTHORITIES

IN SUPPORT OF ADMINISTRATIVE MOTION

INTRODUCTION

This administrative motion is based on the following procedural posture of this case.

A jury trial of this case is set for March 6, 2023. 

On November 1 and 2, 2022, the relator filed an administrative motion (Dkt. 152, 153) 

seeking leave of this court to reopen discovery for the limited purpose of seeking to enforce a 

third-party document subpoena on former defendant and now third-party witness, Hayward 

Unified School District (“HUSD”). 

On November 10, 2022, this court denied the relator’s administrative motion (Dkt. 158). 

On December 20, 2022, the relator served a trial subpoena (“trial subpoena) on HUSD. A 

January 3, 2023

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORN

I

A

DENIED

Judge Phyllis J. Hamilton

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-2- Case No. 16-CV-6994-PJH

true and correct copy of the trial subpoena is attached to this administrative motion as Exhibit A. 

 By this motion, the relator seeks an order of this court: (a) requiring the defendants and/or 

HUSD to either (i) move to quash the trial subpoena on or before January 6, 2023 or (ii) to waive 

its right to move to quash or otherwise not fully comply with the trial subpoena and (b) if a motion 

to quash the trial subpoena is made, for the court setting an expedited briefing schedule and 

hearing date on such motion to quash. 

 As set forth in the declaration of relator’s counsel which accompanies this 

administrative motion, in the event the court grants a motion to quash the trial subpoena or 

otherwise declines to enforce the trial subpoena, the relator intends to immediately move this court 

for an order certifying (a) the court’s previous denial (Dkt. 158) of relator’s administrative motion 

(Dkt. 152,153) and (b) the court’s granting of any motion to quash the trial subpoena or 

declination to enforce the trial subpoena for interlocutory appeals to the Ninth Circuit pursuant to 

28 USC §1292(b). 

ARGUMENT 

 The relief sought by this motion is because this court’s ruling on any motion to quash the 

trial subpoena is necessary to avoid the reasonable possibility of having to conduct two full jury 

trials of this case, causing a tremendous waste of the time and resources of this court, counsel and 

jurors. As set forth in the declaration of relator’s counsel which accompanies this administrative 

motion, if the court grants a motion to quash the trial subpoena or otherwise declines to enforce

the trial subpoena, the relator intends to immediately move this court for an order, pursuant to 28 

USC §1942(b), certifying that ruling for interlocutory appellate review to the Ninth Circuit. 

28 USC §1292(b) states:

When a district judge, in making in a civil action an order not otherwise appealable 

under this section, shall be of the opinion that such order involves a controlling 

question of law as to which there is substantial ground for difference of 

opinion and that an immediate appeal from the order may materially advance 

the ultimate termination of the litigation, he shall so state in writing in such 

order. The Court of Appeals which would have jurisdiction of an appeal of such 

action may thereupon, in its discretion, permit an appeal to be taken from such 

order, if application is made to it within ten days after the entry of the order. 

(emphasis added)

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16514482.1 

-3- Case No. 16-CV-6994-PJH

The documents sought by the trial subpoena are Individual Education Plans (“IEPs”) for 

special education students enrolled in the HUSD for the years 2015-2017. As described in great 

detail in the relator’s previous administrative motion (Dkt 152, 153), the relator unsuccessfully 

sought production of the IEPs for almost six years. The relator firmly believes the relevant 

contents of the IEPs “involves a controlling question of law as to which there is substantial ground 

for difference of opinion” and the appellate resolution of that issue will “materially advance the 

ultimate termination of the litigation” or may likely be dispositive of the central issue in this case. 

If the court declines to enforce the trial subpoena and grants a motion to quash it and the 

relator is subsequently required to conduct an entire jury trial without the IEP evidence available 

to him, the relator’s only opportunity for an appellate review of this court’s denial of his 

opportunity to obtain the IEPs would be a post-judgment appeal of the district court’s prior 

rulings. If, on such post-judgment appeal, it is determined the relator was entitled to obtain the 

IEPs in discovery or by enforcement of the trial subpoena, the sole remedy the appellate court 

could provide to the relator would be to remand the matter to the district court, order the IEPs to 

be produced and then to hold a new jury trial with that evidence available. 

However, unnecessary duplicate jury trials can be avoided by application of the procedure 

provided by 28 USC §1292(b). But the §1292(b) procedure can only be invoked by the relator if 

this court rules on the enforceability of the trial subpoena sufficiently in advance of the date of the 

trial, which is the date on which the trial subpoena is returnable. 

This administrative motion solely requests a scheduling order and does not seek any 

substantive relief. No party or the HUSD will be prejudiced by the granting of this administrative 

motion. in the event the court grants a motion to quash the trial subpoena or otherwise declines to 

enforce the trial subpoena, the relator intends to immediately move this court for an order 

certifying (a) the court previous denial of relator’s administrative motion (Dkt. 152,153) and (b) 

Case 4:16-cv-06994-PJH Document 165 Filed 01/03/23 Page 3 of 9
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the court’s granting of any motion to quash the trial subpoena or declination to enforce the trial 

subpoena for interlocutory appeals to the Ninth Circuit pursuant to 28 USC §1292(b). 

For the foregoing reasons, the reltor, STEVEN FALLON, requests this court grant the 

administrative relief sought by this motion. 

Dated: December 27, 2022 Respectfully submitted,

 THE JAFFE LAW FIRM

 By:________/S/____________ 

 Stephen R. Jaffe 

 Attorneys for Relator 

 STEVEN FALLON 

 

DECLARATION OF STEPHEN R. JAFFE

Stephen R. Jaffe states:

1. I am counsel for the relator in this action. The facts set forth in this declaration are true 

of my own personal knowledge and if called as a witness I could and would testify 

thereto.

2. In the event the court grants a motion to quash the trial subpoena or otherwise declines 

to enforce that subpoena, for the reasons set forth in the ARGUMENT preceding this 

declaration, the relator intends to immediately move this court for an order certifying

(a) the denial of relator’s previous administrative motion (Dkt. 152,153) and (b) the 

court’s granting of any motion to quash the trial subpoena or declination to enforce the 

trial subpoena for interlocutory appeals to the Ninth Circuit pursuant to 28 USC 

§1292(b). 

I declare the foregoing to be true under the penalty of perjury of the laws of the State of 

California. Executed December 27, 2022, in Riverside County, California. 

 ____________/s/______________ 

 Stephen R. Jaffe 

Case 4:16-cv-06994-PJH Document 165 Filed 01/03/23 Page 4 of 9
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EXHIBIT A

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