Petillo v. Galliger et al

Filing 63

ORDER DENYING 60 Motion to conduct depositions by written questions, signed by Magistrate Judge Gary S. Austin on 12/10/2021. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ISAIAH J. PETILLO,

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Plaintiff,
vs.

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1:18-cv-00217-NONE-GSA-PC
ORDER DENYING MOTION TO CONDUCT
DEPOSITIONS BY WRITTEN QUESTIONS
(ECF No. 60.)

GALLIGER, et al.,
Defendants.

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I.

BACKGROUND

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Isaiah J. Petillo (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

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with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with Plaintiff’s

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First Amended Complaint, filed on November 19, 2018, on Plaintiff’s Eighth Amendment

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excessive force claim against defendant Fugate; Eighth Amendment claims against defendants

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Gallagher and Fugate for failing to protect Plaintiff; and First Amendment retaliation claim

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against defendant Gallagher. (ECF No. 18.) On August 11, 2021, the court issued a Discovery

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and Scheduling Order setting out deadlines for the parties including a discovery deadline of

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January 11, 2022, and a dispositive motions deadline of March 11, 2022. (ECF No. 53.) This

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case is now in the discovery phase.
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On December 6, 2021, Plaintiff filed a motion to conduct depositions by written

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questions. (ECF No. 60.)

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II.

DEPOSITIONS BY WRITTEN QUESTIONS

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Plaintiff seeks to take depositions by written questions, which must be taken pursuant to

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the procedures set forth under Federal Rule of Civil Procedure 31. The deposition upon written

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questions basically would work as follows: The prisoner would send out a notice of deposition

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that identifies (a) the deponent (i.e., the witness), (b) the officer taking the deposition, (c) a list

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of the exact questions to be asked of the witness, and (d) the date and time for the deposition to

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occur. The defendant would have time to send to the prisoner written cross-examination questions

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for the witness, the prisoner would then have time to send to defendant written re-direct questions

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for the witness, and the defendant would have time to send to the prisoner written re-cross-

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examination questions for the witness[.] Dalke v. Clark, 1:20-cv-00534-AWI-SAB (PC), 2021

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WL 4192036 (E.D. Cal. 2021) (citing Harrell v. Jail, 2015 WL 8539037, *1–2 (E.D. Cal. Dec.

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11, 2015) (quoting Brady v. Fishback, 2008 WL 1925242, at *1–2 (E.D. Cal. Apr. 30, 2008)).

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Plaintiff’s in forma pauperis status does not entitle him to a waiver of any of the costs associated

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with this form of deposition; instead, he must pay the necessary deposition officer fee, court

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reporter fee, and costs for a transcript. Id. (citations omitted). Courts have found that a failure to

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make these showings defeats a motion to take depositions. Id. (citing see Harrell, 2015 WL

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8539037, at *2; Jackson v. Woodford, 2007 WL 2580566, at *1 (S.D. Cal. Aug. 17, 2007)).

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Federal Rule of Civil Procedure 31(a)(2)(A)(i) requires a party to obtain leave of court to

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take more than ten depositions by written question. In addition, Plaintiff must identify the officer

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taking the depositions and the date and time for the depositions. Plaintiff must also show that he

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can pay the costs associated with written depositions, including fees for a deposition officer and

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court reporter, the costs of transcribing the deposition, and witness fees and mileage under Rule

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45(b)(1). As discussed above, Plaintiff’s indigent status does not entitle him to a waiver of fees.

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Accordingly, for the reasons discussed above, Plaintiff has failed to make the required showing

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to conduct depositions by written questions and his motion shall be denied.

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If Plaintiff wishes to conduct oral or written depositions he must review Rules 28, 30, 31,

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and 45 of the Federal Rules of Civil Procedure and if, after reviewing the rules, he believes he is

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able to conduct depositions in compliance with the rules, Plaintiff shall notify the Court and make

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a showing that he is able and willing to retain an officer to take responses and prepare the record.

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III.

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CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s motion to conduct

depositions by written questions, filed on December 6, 2021, is DENIED.

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IT IS SO ORDERED.
Dated:

December 10, 2021

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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