Barry v. Felker et al

Filing 41

ORDER signed by Magistrate Judge George W. Foley on 10/21/10 ORDERING dfts Bishop and Albonic's Motion to Compel 37 is GRANTED in part and DENIED in part: the Court GRANTS dfts leave to depose pltf; and dfts' request for sanctions is DENIED. (Carlos, K)

(PC) Barry v. Felker et al

Doc. 41

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This matter is before the Court on Plaintiff's Objections to Defendants J. Bishop and N. Albonico Taking Deposition of Plaintiff Pursuant to F.R.C.P. 30 (#33), filed August 27, 2010; Defendants Bishop and Albonico's Notice of Motion to Compel the Deposition of Plaintiff (#37), filed August 31, 2010; and Declaration of Counsel in Lieu of Reply to Opposition to Defendants Bishop and Albonico's Motion to Compel the Deposition of Plaintiff (#39), filed September 29, 2010. DISCUSSION Defendants J. Bishop and N. Albonico state that they served Plaintiff with a notice of deposition on August 11, 2010, which scheduled the deposition to take place on August 31, 2010. (#37-1 at 1-2). Defendant, who is incarcerated at High Desert State Prison, would be deposed telephonically. (Id. at 2). On August 24, 2010, Plaintiff Timothy Barry mailed his objections to the scheduled deposition to the Court and Defendants. (#33; #37-1 at 2). At the time the deposition was scheduled to be taken on August 31, 2010, Plaintiff refused to attend the deposition. As a result, Defendants move the Court pursuant to Fed.R.Civ.P. 37 for an order to compel the deposition of Plaintiff Barry and imposing sanctions against Plaintiff for failure to attend the deposition. (#37). Plaintiff objects to allowing Defendants to take his deposition as noticed. (#33). He argues that Fed.R.Civ.P. 28(a) and 30 require that a deposition must take place before an officer of the Court. (Id.) As a result, he states that he will not submit to a deposition. TIMOTHY DEMOND BARRY, ) ) Plaintiff, ) ) vs. ) ) T. FELKER, et al., ) ) Defendants. ) __________________________________________)

UNITED STATES DISTRICT COURT FO R THE EASTERN DISTRICT OF CALIFORNIA

Case No. 2:08-cv-01722-PMP-GWF ORDER Motion to Compel (#37)

Dockets.Justia.com

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1.

De pos ition of Plaintiff

Under Fed.R.Civ.P. 30(a), a defendant has the right to depose a plaintiff without seeking the Court's leave to do so. Hines v. California Public Utilities Com'n, 2009 WL 3621878, *1 (N.D.Cal. October 29, 2009). See also Fed.R.Civ.P. 26(b)(1) (stating "[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense"). However, where a deponent is confined in prison, the party "must obtain leave" of the Court prior to noticing the deposition. Fed.R.Civ.P. 30(a)(2)(B) (emphasis added). In this instance, Defendants failed to seek the Court's leave to depose Plaintiff, who is incarcerated at High Desert State Prison. As a result, Defendants' notice of deposition was improper and the Court will not compel the deposition of Plaintiff under Fed.R.Civ.P. 37. The Court will, alternatively, consider the present motion to comprise a motion for leave to take the deposition of Plaintiff as a deponent confined in prison pursuant to Fed.R.Civ.P. 30(a) and grant Defendants leave to depose Plaintiff. Defendants shall properly notice the deposition and make arrangements with High Desert State Prison for a time and place to depose Plaintiff. As for Plaintiff's objections to Defendants taking his deposition, Rules 28(a) and 30(b)(5) require that a deposition be taken before a court reporter or officer authorized to administer oaths. Plaintiff interprets these rules as requiring that Plaintiff be deposed by "an officer," rather than the defendants. (#33). As discussed above, Defendants have the right to have their counsel depose Plaintiff by oral questions under Fed.R.Civ.P. 30(a). There is no requirement under the Rules of Civil Procedure that a deposition be taken by a third party or court officer. Fed.R.Civ.P. 28(a) and 30(b)(5) merely mandate that the deposition must be taken before a court reporter or other officer authorized to administer oaths. Defendants' notice states that the "deposition will be taken before a certified shorthand reporter". (#37-6 at 3). Plaintiff has not offered any evidence that the presence of the shorthand reporter does not comply with the requirements of Rules 28(a) and 30(b)(5). Therefore, Plaintiff's objections to Defendants taking his deposition are overruled. ... ... ... 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

2.

M otion for Sanctions

The Court finds sanctions are not appropriate at this time as Defendants failed to seek leave of the Court prior to noticing the deposition of Plaintiff as required by Fed.R.Civ.P. 30(a)(2)(B). Accordingly, IT IS HEREBY ORDERED that Defendants Bishop and Albonico's Notice of Motion to Compel the Deposition of Plaintiff (#37) is granted in part and denied in part, as follows: 1. The Court grants Defendants leave to depose Plaintiff pursuant to Fed.R.Civ.P. 30(a); and 2. Defendants' request for sanctions is denied.

IT IS FURTHER ORDERED that Defendants shall properly notice the deposition of Plaintiff and make arrangements with High Desert State Prison for a time and place to depose Plaintiff. DATED this 21st day of October, 2010.

______________________________________ GEORGE FOLEY, JR. Unite d States Magistrate Judge

3