Calloway v. Kelley et al

Filing 82

ORDER DENYING Plaintiff's 73 Motion for Leave to Conduct Depositions by Oral Examination, signed by Magistrate Judge Stanley A. Boone on 12/12/2014. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMISI JERMAINE CALLOWAY,

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Plaintiff,

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v.
G. KELLEY, et al.,

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Defendants.

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Case No.: 1:11-cv-01090-LJO-SAB (PC)
ORDER DENYING PLAINTIFF’S MOTION FOR
LEAVE TO CONDUCT DEPOSITIONS BY ORAL
EXAMINATION
[ECF No. 73]

Plaintiff Jamisi Jermaine Calloway is appearing pro se and in forma pauperis in this civil rights

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action pursuant to 42 U.S.C. § 1983.
On November 3, 2014, Plaintiff filed a motion for leave to conduct depositions by oral

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examination of all nine Defendants, along with ten percipient witnesses allegedly employed by the

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California Department of Corrections and Rehabilitation (CDCR). Defendants filed an opposition to

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Plaintiff’s motion on November 24, 2014.1

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Pursuant to Local Rule 230(l), Plaintiff did not file a reply to Defendants’ opposition and the matter is deemed submitted
after the seven day reply period expired. Local Rule 230(l).

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I.

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DISCUSSION

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A.

Depositions by Oral Examination

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Rule 30 of the Federal Rules of Civil Procedure governs the procedure by which depositions

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are taken by oral examination. “A party who wants to depose a person by oral questions must give

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reasonable written notice to every other party.” Fed. R. Civ. P. 30(b)(1). “The party who notices the

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deposition must state in the notice the method for recording the testimony.” Fed. R. Civ. P.

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30(b)(3)(A). The noticing party must also bear the costs of recording the deposition. Id. In addition,

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that party must arrange for an officer to conduct the depositions (absent a stipulation by all parties

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otherwise). Fed. R. Civ. P. 30(b)(5)(A). If a deponent is not a party to the action, he can be compelled

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to appear at a deposition examination only by issuance of a subpoena pursuant to Rule 45.
Rule 30 authorizes a party to take up to ten depositions as a matter of course, and if more than

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10 depositions is necessary, leave of court must be requested and granted. Fed. R. Civ. P.

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30(a)(2)(A)(i). Leave to take additional depositions should be granted if consistent with the principles

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set forth in Rule 26(b)(2) of the Federal Rules of Civil Procedure. Thus, the Court considers whether

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the discovery sought is unreasonably cumulative or duplicative; whether the proponent has had ample

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opportunity to obtain the information by discovery; and whether the burden or expense of the

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proposed discovery outweighs its likely benefit. Fed. R. Civ. P. 26(b)(2)(C).

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1.

Depositions of Defendants

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Plaintiff is advised that the Court cannot order Defendants to arrange for Plaintiff to take their

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depositions. On the other hand, Plaintiff does not require the Court’s permission to take Defendants’

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depositions. Thus, to the extent Plaintiff wishes to take the depositions of the named Defendants in

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this action, he must comply with the Federal Rules of Civil Procedure, which requires proper notice

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along with notice of the method of recording (by way of audio, audiovisual, or stenographic mean), at

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Plaintiff’s expense. To this end, Defendants have no objection to Plaintiff attending a deposition by

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videoconference, provided that such equipment is available at the institution where Plaintiff is housed.

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2.

Depositions of Witnesses

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As to the deposition of percipient witnesses, Plaintiff’s motion for issuance of subpoenas must

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be denied. Plaintiff provides no justification for the requested depositions of the ten percipient

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witnesses, and his motion for leave to conduct such depositions must be denied. In addition, Plaintiff

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has not stated how he will pay for the deposition costs and non-party witness fees pursuant to Rule 45

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of the Federal Rules of Civil Procedure, and there is no stipulation by Defendants to produce the

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percipient witnesses identified by Plaintiff. Furthermore, Plaintiff is required to pay for the recording

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of the depositions pursuant to Rule 30, and Plaintiff provides no indication that he can pay such

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expenses. Although Plaintiff is proceeding in forma pauperis, such status does not entitle him to

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waiver of witness fees, mileage or deposition officer fees. Finally, if Plaintiff deposes each of the nine

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Defendants, Plaintiff should keep in mind that leave of court is necessary to conduct more than ten

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depositions, which includes the depositions of Defendants. Fed R. Civ. P. 30(a)(2). For these reasons,

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Plaintiff’s motion must be denied.

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II.

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ORDER

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Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s motion for leave to

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conduct the depositions by oral examinations is DENIED.

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IT IS SO ORDERED.

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Dated:

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December 12, 2014
UNITED STATES MAGISTRATE JUDGE

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