Tran v. Junious et al

Filing 47

ORDER Directing Clerk to Return Plaintiff's First Set of Deposition Upon Written Questions and Letter, signed by Magistrate Judge Erica P. Grosjean on 5/26/17. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,

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1:14-cv-01320-DAD-EPG (PC)

BINH TRAN,

v.

ORDER DIRECTING CLERK TO RETURN
PLAINTIFF’S FIRST SET OF DEPOSITION
UPON WRITTEN QUESTIONS AND LETTER

E. SMITH,
Defendant.

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Binh Tran (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with

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this civil rights action filed pursuant to 42 U.S.C. § 1983 and attendant state law claim for

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common law negligence. On May 25, 2017, Plaintiff attempted to file his first set of deposition

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upon written questions, as well as a letter addressed to the Court.

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The Court will return to Plaintiff both Plaintiff’s first set of deposition upon written

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questions and the letter. Plaintiff should not file discovery requests with the Court. Further,

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discovery has not yet been opened in this case. (ECF No. 2, p. 4). Additionally, Plaintiff appears

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to request that the questions not be shared with defendant until a later time, which the Court

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cannot do.

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Finally, the Court notes that Plaintiff appears to confuse two separate discovery tools.
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Federal Rule of Civil Procedure 33, under which this discovery request is purportedly filed,

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allows interrogatories to be served on other parties. Federal Rule of Civil Procedure 31 allows

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depositions to be taken by written questions. However, Plaintiff must first ask for leave of the

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Court before he can serve a deposition by written questions. Fed. R. Civ. P. 31(a)(2)(B). If

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Plaintiff is granted leave to take a deposition by written questions, he needs to serve a copy of the

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questions on defendant E. Smith (Fed. R. Civ. P. 31(a)(3)), as well as the officer who is to take

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the deposition (Fed. R. Civ. P. 31(b)).

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Oral Examination has a provision regarding “Participating Through Written Questions,” which

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states that “Instead of participating in the oral examination, a party may serve written questions in

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a sealed envelope on the party noticing the deposition, who must deliver them to the officer. The

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officer must ask the deponent those questions and record the answers verbatim.”

Note also that Rule 30(c)(3), regarding Depositions by

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If Plaintiff wishes to proceed with a deposition upon written questions, he may make an

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oral motion at the initial scheduling conference, which is currently set for August 14, 2017, at

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2:00 p.m. The Court and parties will discuss discovery at that time and can address Plaintiff’s

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discovery plan.

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Accordingly, based on the foregoing, the Clerk of Court is DIRECTED to return
Plaintiff’s first set of deposition upon written questions and the attached letter to Plaintiff.

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IT IS SO ORDERED.
Dated:

May 26, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

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