Rodella v. Jackson et al

Filing 100

ORDER signed by Magistrate Judge Edmund F. Brennan on 1/30/12 DENYING 89 , 94 , 97 and 98 Motions. (Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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VICTOR JOSEPH RODELLA,
Plaintiff,

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No. CIV S-09-0794 GEB EFB P

vs.

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TERRY JACKSON, et al.,

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Defendants.
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ORDER

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. Currently before the court are plaintiff’s motions to depose defendants by written

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question (Docket No. 89) and to compel further discovery responses from defendants (Docket

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Nos. 94, 97, 98).

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Plaintiff filed a motion for “deposition upon written questions,” in which he requests that

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defendants Jackson and Hibbits respond to interrogatories. Dckt. No. 89. Plaintiff then

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addresses six interrogatories to defendant Jackson. As the court has previously informed

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plaintiff, discovery requests must be served on the person or party from whom plaintiff seeks

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discovery and not filed with the court “until there is a proceeding in which the document or

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proof of service is at issue.” See Dckt. No. 85; E.D. Cal. Local Rules 250.2-250.4. To the extent

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plaintiff has merely filed his discovery request with the court, it will be disregarded. To the
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extent plaintiff is requesting leave of court for depositions by written question, the motion will

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be denied for failure to comply with Rule 31 of the Federal Rules of Civil Procedure. Under

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Rule 31, a party may depose any person by written questions. Unless the parties stipulate

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otherwise, the party noticing the deposition is required to provide the questions to an “officer,”

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as that term is defined in Rule 28(a), who will take the deponent’s responses to the questions,

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certify them, and send them to the noticing party. Fed. R. Civ. P. 31(b), 30(b)(5). It appears as

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though plaintiff has not complied with this requirement. Moreover, defendants have opposed

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plaintiff’s motion and have not indicated a willingness to stipulate to plaintiff deposing them by

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written questions in some manner not requiring the participation of a deposition officer. See

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Dckt. No. 92. Accordingly, plaintiff’s request to depose defendants by written questions is

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denied.

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The court construes three of plaintiff’s filings (Docket Nos. 94, 97, 98) as motions to

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compel discovery. Plaintiff apparently seeks from defendants a copy of a video interview, and a

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copy of a compact disc. On October 27, 2011, the court ordered defendants to produce certain

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video interviews to plaintiff, and directed defendants to file a proof of service of those responses

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with the court. Dckt. No. 86. Defendants responded by filing the declaration of the Evidence

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Officer at High Desert State Prison, who stated that the requested video could not be located, and

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that he believed that the video at issue might have been destroyed in a flood that occurred on

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December 14, 2009. Dckt. No. 88. In his December 5, 2011 motion to compel, plaintiff again

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requests a copy of the video, and states that a disc that was sent to him was confiscated. Dckt.

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No. 94. Defendants responded to that motion, explaining that they did not produce the video

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interviews because they are presumed destroyed in the flood. Dckt. No. 96. They also explained

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that because plaintiff stated that the disc they had sent to him was confiscated, they would be

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forwarding him hard copies of the photographs that were contained on that disc. Dckt. No. 96.

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In response, plaintiff expressed doubt as to the likelihood of a flood destroying the requested

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video, and concern that the defendants were concealing the contents of the disc that had been
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confiscated from him. Dckt. Nos. 97, 98. Defendants indicate that they have forwarded plaintiff

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hard copies of the photographs contained on the disc that was confiscated from plaintiff, and it

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appears from plaintiff’s filings that he is in possession of those photographs. See Dckt. No. 98.

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Additionally, defendants have produced a declaration from the Evidence Officer stating under

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penalty of perjury that the requested video interview could not be located and may have been

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destroyed. See Dckt. No. 88. Plaintiff apparently seeks the video to offer proof of his alleged

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injuries, but he may be able to rely on other evidence, such as medical records or declarations, to

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prove the same. Moreover, plaintiff has not demonstrated that the requested video is in

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defendants’ possession, custody or control. See United States v. Int’l Union of Petroleum and

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Indus. Workers, 870 F.2d 1450, 1452 (9th Cir. 1989) (party seeking production bears the burden

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of showing that the opposing party has control of the requested discovery). Accordingly,

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plaintiff’s motion to compel are denied.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motions (Docket Nos. 89, 94,

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97, 98) are denied.

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DATED: January 30, 2012.

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