Ahdom v. Lopez et al

Filing 164

ORDER Granting Defendant Ashby's Motion To Take Deposition Of Plaintiff Bilal Adhom, A Prisoner (ECF No. 159 ), signed by Magistrate Judge Barbara A. McAuliffe on 12/7/2015. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BILAL AHDOM,
Plaintiff,

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v.

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S. LOPEZ, et al.,
Defendants.

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I.

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1:09-cv-01874-AWI-BAM (PC)
ORDER GRANTING DEFENDANT
ASHBY’S MOTION TO TAKE
DEPOSITION OF PLAINTIFF BILAL
ADHOM, A PRISONER
(ECF No. 159)

Introduction

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Plaintiff Bilal Ahdom (“Plaintiff”), a state prisoner proceeding pro se and in forma

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pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. This action now proceeds on

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Plaintiff’s claims against Defendants Schaefer, Araich, Chen, Shittu, and Ashby for Eighth

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Amendment deliberate indifference.
Currently before the Court is Defendant Ashby’s motion to take the deposition of

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Plaintiff, filed on November 6, 2015 with a supporting memorandum of points and authorities.

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(ECF No. 159.) Plaintiff’s response to this motion was due on or before November 30, 2015. As

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of the date of this order, no response was filed, and the motion is now deemed submitted. Local

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Rule 230(l).

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II.

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Discussion
Defendant Ashby moves for leave to depose Plaintiff pursuant to Federal Rule of Civil
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Procedure 30(a)(2)(A)(ii) and (a)(2)(B). Defendant Ashby explains that he requires leave of

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court to depose Plaintiff because Plaintiff is a prisoner who has already been deposed in this

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matter. However, at the time of Plaintiff’s prior deposition, Defendant Ashby was not yet

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represented and had not yet appeared in this case. Therefore, Defendant Ashby argues that good

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cause exists to allow him to depose Plaintiff.

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A.

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In order to take a deposition of a deponent who has already been deposed, leave of court

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is required, and “the court must grant leave to the extent consistent with Rule 26(b)(2).” Fed. R.

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Civ. P. 30(a)(2)(A)(ii). “Repeat depositions are not favored, except in certain circumstances,

Standard

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some of which include a long passage of time with new evidence, or where an amended

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complaint has added new theories.” Kress v. Price Waterhouse Coopers, No. CIV S-08-0965

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LKK, 2011 WL 5241852, at *1 (E.D. Cal. Nov. 1, 2011) (citing Graebner v. James River

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Corporation, 130 F.R.D. 440, 441 (N.D. Cal. 1990)). Thus, good cause for a repeated deposition

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“exists where new claims or defenses have been added, new parties have been added, and new

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documents have been produced.” Id. (internal citations omitted). “Courts may limit the scope of

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the second deposition to matters not covered in the first deposition.” Id.

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B.

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Defendant Ashby has shown good cause for taking Plaintiff’s deposition in this case,

Analysis

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despite the fact that Plaintiff was previously deposed. The parties litigated the case for over three

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months before Defendant Ashby appeared through counsel. Defendant Ashby immediately filed

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a motion to dismiss, and did not take discovery during the pendency of that motion, as the claims

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and parties were not yet finalized. (ECF No. 66.) Now that all of the Defendants’ motions to

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dismiss in this case have been decided, Defendant Ashby seeks to depose Plaintiff on the

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finalized complaint. Since Defendant Ashby seeks to depose Plaintiff on matters specifically

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pertaining to him that were not addressed in the previous deposition, this second deposition will

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neither be cumulative nor overly burdensome. Moreover, Defendant Ashby would be prejudiced

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if he is not able to depose Plaintiff on the matters related to the claims and allegations

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specifically being made against him.
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III.

Conclusion and Order

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Accordingly it is HEREBY ORDERED that Defendant Ashby’s motion for leave of court

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to depose Plaintiff is GRANTED. Defendant Ashby may notice Plaintiff for a second deposition,

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which shall be limited to areas related to claims against Defendant Ashby.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

December 7, 2015

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A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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