Tran v. Junious et al
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)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
ORDER DIRECTING CLERK TO RETURN
PLAINTIFF’S FIRST SET OF DEPOSITION
UPON WRITTEN QUESTIONS AND LETTER
Binh Tran (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with
this civil rights action filed pursuant to 42 U.S.C. § 1983 and attendant state law claim for
common law negligence. On May 25, 2017, Plaintiff attempted to file his first set of deposition
upon written questions, as well as a letter addressed to the Court.
The Court will return to Plaintiff both Plaintiff’s first set of deposition upon written
questions and the letter. Plaintiff should not file discovery requests with the Court. Further,
discovery has not yet been opened in this case. (ECF No. 2, p. 4). Additionally, Plaintiff appears
to request that the questions not be shared with defendant until a later time, which the Court
Finally, the Court notes that Plaintiff appears to confuse two separate discovery tools.
Federal Rule of Civil Procedure 33, under which this discovery request is purportedly filed,
allows interrogatories to be served on other parties. Federal Rule of Civil Procedure 31 allows
depositions to be taken by written questions. However, Plaintiff must first ask for leave of the
Court before he can serve a deposition by written questions. Fed. R. Civ. P. 31(a)(2)(B). If
Plaintiff is granted leave to take a deposition by written questions, he needs to serve a copy of the
questions on defendant E. Smith (Fed. R. Civ. P. 31(a)(3)), as well as the officer who is to take
the deposition (Fed. R. Civ. P. 31(b)).
Oral Examination has a provision regarding “Participating Through Written Questions,” which
states that “Instead of participating in the oral examination, a party may serve written questions in
a sealed envelope on the party noticing the deposition, who must deliver them to the officer. The
officer must ask the deponent those questions and record the answers verbatim.”
Note also that Rule 30(c)(3), regarding Depositions by
If Plaintiff wishes to proceed with a deposition upon written questions, he may make an
oral motion at the initial scheduling conference, which is currently set for August 14, 2017, at
2:00 p.m. The Court and parties will discuss discovery at that time and can address Plaintiff’s
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.
IT IS SO ORDERED.
May 26, 2017
UNITED STATES MAGISTRATE JUDGE
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