Bird v. Zuniga et al

Filing 40

ORDER Denying 32 Motion for Leave of Court to Conduct Depositions by Written Questions, signed by Magistrate Judge Michael J. Seng on 11/30/16. (Verduzco, M)

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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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CASE NO. 1:15-cv-00910-DAD-MJS (PC)

MICHAEL BIRD,

v.
A. ZUNIGA, et al.,

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ORDER DENYING MOTION FOR LEAVE OF
COURT TO CONDUCT DEPOSITIONS BY
WRITTEN QUESTIONS
(ECF No. 32)

Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil

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rights action brought pursuant to 28 U.S.C. § 1983. The action proceeds against

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Defendant Musleh on Plaintiff’s Eighth Amendment failure to protect claim.

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Before the Court is Plaintiff’s August 31, 2016 motion seeking leave to conduct

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depositions by written questions and requesting that the Court appoint an officer to

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administer oaths and take testimony. (ECF No. 32.) Defendant filed an opposition. (ECF

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No. 36.) Plaintiff filed no reply. The matter is submitted. Local Rule 230(l).

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I.

Legal Standard

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Depositions by written questions must be taken pursuant to the procedures set

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forth under Federal Rule of Civil Procedure 31. These procedures require plaintiff to

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send out a notice of deposition identifying “(a) the deponent (i.e., the witness), (b) the

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officer taking the deposition, (c) a list of the exact questions to be asked of the witness,

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and (d) the date and time for the deposition to occur.” Lopez v. Horel, C 06–4772 SI PR,

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2007 WL 2177460 n.2 (N.D. Cal. July 27, 2007). The parties then would exchange

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written cross-examination questions for the witness, followed by written re-direct

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questions, and then written re-cross-examination questions. Id. The questions then

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would be sent to the deposition officer who would depose the witness with the scripted

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questions. Id. Under most circumstances, leave of court is unnecessary to conduct a

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deposition upon written questions. Fed. R. Civ. P. 31(a).

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To obtain a deposition upon written questions, a prisoner must pay the deposition

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officer fee, court reporter fee, and the cost of a transcript of the proceedings. Id.

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Additionally, depositions of non-parties require that they be subpoenaed pursuant to

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Rule 45, and a prisoner is required to pay related statutory witness fees. “[T]he

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expenditure of public funds [on behalf of an indigent litigant] is proper only when

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authorized by Congress.” Tedder v. Odel, 890 F.2d 210, 211–12 (9th Cir.1989) (quoting

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United States v. MacCollum, 426 U.S. 317, 321(1976)). The in forma pauperis statute

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does not authorize the expenditure of public funds for deposition transcripts, court

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reporter fees, or witness fees. See 28 U.S.C. § 1915; Jackson v. Woodford, 2007 WL

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2580566, at *1. (S.D. Cal. August 17, 2007) (holding that “[p]laintiff's in forma pauperis

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status...does not entitle him to waiver of witness fees, mileage or deposition officer

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fees.”)

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II.

Discussion

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Plaintiff seeks leave to depose Defendant and five witnesses by written questions.

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Leave of court is not required to conduct such depositions. Fed. R. Civ. P. 31(a)(1)-(2).

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Accordingly, this request will be denied. If Plaintiff wishes to pursue depositions upon

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written questions, he must follow the procedures outlined in Rule 31. He is reminded to

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begin this process well in advance of the discovery cut-off to allow sufficient time to

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notice the deposition, exchange questions with Defendant, and subpoena the

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deponents, if necessary. He also is reminded that he may be able to avoid deposing

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Defendant by propounding interrogatories pursuant to Rule 33.
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Plaintiff requests that the Court appoint someone to administer oaths and take

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testimony at the depositions at no cost to Plaintiff. While Rule 28(a)(1)(B) authorizes the

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Court to appoint a deposition officer, it does not authorize the Court to impose any

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related expenses on the public. As stated above, the Court is without authority to require

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depositions to be taken at public expense. Accordingly, this request also will be denied.

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III.

Conclusion and Order

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Based on the foregoing, Plaintiff’s motion requesting leave to take depositions

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upon written questions and to appoint a deposition officer (ECF No. 32) is HEREBY

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DENIED.

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IT IS SO ORDERED.
Dated:

November 30, 2016

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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