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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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 Plaintiff, 13 14 15 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. 16 17 18 19 Binh Tran (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with 20 this civil rights action filed pursuant to 42 U.S.C. § 1983 and attendant state law claim for 21 common law negligence. On May 25, 2017, Plaintiff attempted to file his first set of deposition 22 upon written questions, as well as a letter addressed to the Court. 23 The Court will return to Plaintiff both Plaintiff’s first set of deposition upon written 24 questions and the letter. Plaintiff should not file discovery requests with the Court. Further, 25 discovery has not yet been opened in this case. (ECF No. 2, p. 4). Additionally, Plaintiff appears 26 to request that the questions not be shared with defendant until a later time, which the Court 27 cannot do. 28 Finally, the Court notes that Plaintiff appears to confuse two separate discovery tools. 1 1 Federal Rule of Civil Procedure 33, under which this discovery request is purportedly filed, 2 allows interrogatories to be served on other parties. Federal Rule of Civil Procedure 31 allows 3 depositions to be taken by written questions. However, Plaintiff must first ask for leave of the 4 Court before he can serve a deposition by written questions. Fed. R. Civ. P. 31(a)(2)(B). If 5 Plaintiff is granted leave to take a deposition by written questions, he needs to serve a copy of the 6 questions on defendant E. Smith (Fed. R. Civ. P. 31(a)(3)), as well as the officer who is to take 7 the deposition (Fed. R. Civ. P. 31(b)). 8 Oral Examination has a provision regarding “Participating Through Written Questions,” which 9 states that “Instead of participating in the oral examination, a party may serve written questions in 10 a sealed envelope on the party noticing the deposition, who must deliver them to the officer. The 11 officer must ask the deponent those questions and record the answers verbatim.” Note also that Rule 30(c)(3), regarding Depositions by 12 If Plaintiff wishes to proceed with a deposition upon written questions, he may make an 13 oral motion at the initial scheduling conference, which is currently set for August 14, 2017, at 14 2:00 p.m. The Court and parties will discuss discovery at that time and can address Plaintiff’s 15 discovery plan. 16 17 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. 18 19 20 IT IS SO ORDERED. Dated: May 26, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 2

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