Calloway v. Veal et al

Filing 55

ORDER Denying Plaintiff's 43 Requests for Depositions by Written Questions signed by Magistrate Judge Gary S. Austin on 04/04/2012. (Flores, E)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JASIMI JERMAINE CALLOWAY,

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Plaintiff,

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vs.

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ORDER DENYING PLAINTIFF’S
REQUEST FOR DEPOSITIONS
BY WRITTEN QUESTIONS
(Doc. 43.)

WARDEN M. VEAL, et al.,

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1:08-cv-01896-LJO-GSA-PC

Defendants.
_____________________________/

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I.

BACKGROUND

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Jasimi Jermaine Calloway (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. A scheduling order was issued on June

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14, 2011, establishing a deadline of February 12, 2012 in this action for the parties to complete

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discovery. (Doc. 31.) On September 8, 2011, Plaintiff filed a request for depositions by written

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questions. (Doc. 43.) On September 20, 2011, Defendants filed an opposition. (Doc. 45.)

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II.

DEPOSITION BY WRITTEN QUESTIONS

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By definition, “a ‘deposition’ is the examination under oath by ‘oral questions’ of a party or

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deponent.” Paige v. Consumer Programs, Inc., 248 F.R.D. 272, 275 (C.D.Cal, 2008.) A party who

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wants to depose a person by oral questions must give written notice to every other party, stating the time

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and place of the deposition. Fed. R. Civ. P. 30(b)(1). “Where a deponent is not a party to the action,

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he can be compelled to appear at a deposition examination only by issuance of a subpoena” pursuant to

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Rule 45. Cleveland v. Palmby, 75 F.R.D. 654, 656 (W.D.Okl. 1977.) “Unless the parties stipulate

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otherwise, a deposition must be conducted before an officer appointed or designated under Rule 28.”

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Fed. R. Civ. P. 30(b)(5)(A). Under Rule 30(c)(3), instead of participating in the oral examination, a

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party may serve written questions in a sealed envelope on the party noticing the deposition, who must

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deliver them to the officer[, and t]he officer must ask the deponent those questions and record the

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answers.” Fed. R. Civ. P. 30(c)(3). Rule 31(a)(1) allows a party, by written questions, to depose any

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person, including a party, without leave of court, with exceptions not present here. Fed. R. Civ. P.

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31(a)(1). A party who wants to depose a person by written questions must serve them on every other

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party with a notice which includes the name or descriptive title and the address of the officer before

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whom the deposition will be taken. Fed. R. Civ. P. 31(a)(3).

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Plaintiff seeks to take depositions by written questions, pursuant to Federal Rules of Civil

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Procedure 30(c) and 31(a)(1). Plaintiff has submitted to the Court seven sets of written “cross-

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questions,” one for each of seven named “witnesses.” (E.g., Request, Doc. 43 at 1:16-17.) The seven

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“witnesses” include Hayward, Oaks, R.N. Ceballos, Sergeant Moore, Sergeant Canales, Spears, and R.N.

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Crawford. Plaintiff requests that the depositions of these witnesses be held at Corcoran State Prison or

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another CDCR state prison.

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In opposition, Defendants argue that Plaintiff’s request lacks proper notice to the “witnesses” and

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fails to identify any officer to take the deposition as required by Rule 31. Defendants assert that

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Plaintiff’s request is not addressed to one party, does not adequately identify the “witnesses,” and was

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filed with the Court rather than served on the “witnesses.” Defendants contend that Plaintiff’s questions

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are unintelligible as phrased and require the “witness” to speculate as to the information sought, as the

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questions contain no time perimeters or identifying information, and use vague and ambiguous terms.

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Defendants also assert that Plaintiff fails to identify the source of payment for the preparation of

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transcripts of his requested depositions. Defendants advise Plaintiff that the information Plaintiff seeks

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from defendants Oaks and Hayward can be obtained through proper use of interrogatories under Rule

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33, which would not raise the issue of transcripts or use of an officer.

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It appears that Plaintiff is requesting the Court to schedule depositions at Corcoran State Prison

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or another CDCR prison for his seven named “witnesses,” appoint an officer to ask the “witnesses” the

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written questions submitted by Plaintiff, and arrange for an officer to record the answers, without cost

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to Plaintiff. While it is true that Plaintiff is proceeding in forma pauperis in this action, this status does

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not entitle Plaintiff to free services such as scheduling, conducting, and recording depositions. Plaintiff

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was advised in the Court’s order of August 22, 2011, that if he wished to conduct oral or written

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depositions, he must review Rules 28, 30, 31, and 45 of the Federal Rules of Civil Procedure and if, after

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reviewing the rules, he believed he was able to conduct depositions in compliance with the rules,

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Plaintiff “shall notify the Court and make a showing that he is able and willing to retain an officer to take

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responses and prepare the record.” (Doc. 41 at 2:8-17.) Plaintiff has not made such a showing.

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Therefore, Plaintiff’s request for depositions by written questions shall be denied.

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III.

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CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s request for depositions by

written questions is DENIED.

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IT IS SO ORDERED.

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Dated:
6i0kij

April 4, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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