Sargent et al v. Simoneta et al

Filing 44

ORDER signed by Magistrate Judge Craig M. Kellison on 7/28/2011. To extent plaintiffs are requesting a Protective Order, they have not shown good cause. Therefore, the Request is DENIED without prejudice. (Marciel, 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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GARY L. SARGENT, et al.,

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No. CIV S-10-1420-CMK

Plaintiff,
vs.

ORDER

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PAUL SIMONETA, et al.,

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Defendants.

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/

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Plaintiffs, proceeding pro se, brings this civil rights action pursuant to 42 U.S.C.

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§ 1983. Pursuant to the written consent of all parties, this case is before the undersigned as the

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presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c).

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Pending before the court is plaintiffs’ request for assistance regarding a notice of

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deposition received from the defense. Plaintiff Atterbury indicates he has received a notice of

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deposition, setting his deposition in Napa, California for August 2, 2011. He states he was not

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asked prior to setting the deposition, indicates he will have nothing to add beyond what was

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stated in his complaint, and he is unable to sit for long periods of time. Plaintiff does not provide

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a copy of the notice of deposition, but does indicate the deposition was noticed to be conducted

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at Sims & Sims Deposition Reporters.
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The Federal Rules of Civil Procedure provide the parties to take deposition by oral

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examination. See Rule 30. The deposition of a party may be noticed wherever the deposing

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party designates, subject to the court’s power to grant a protective order. See Rule 30(b). “A

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district court has wide discretion to establish the time and place of depositions.” Hyde & Drath

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v. Baker, 24 F.3d 1162, 1166 (9th Cir. 1994). A party may move for a protective order to be

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protected “from annoyance, embarrassment, oppression, or undue burden or expense . . . .” Rule

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26(c). The court may grant such a protective order for good cause, specifying the time and place

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of a deposition. See id. The party seeking a protective order has the burden of showing that

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“good cause” exists for the order. See Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 476

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(9th Cir. 1992). To establish good cause, the moving party must submit “a particular and specific

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demonstration of fact, as distinguished from stereotyped and conclusory statements.” Gulf Oil

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Co. v. Bernard, 452 U.S. 89, 102n.16 (1981) (citations omitted).

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Plaintiff has not requested a protective order, nor has he provided good cause for

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the court to issue such an order. Plaintiff resides in Napa, and defense counsel has arranged to

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have plaintiff’s deposition take place in Napa instead of requesting plaintiff travel to Redding to

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participate in a deposition. As the filing before the court is not an actual request for protective

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order, there is insufficient information contained therein for the court to render an opinion to

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extent plaintiff indicates an inability to sit for extended periods of time. Generally, depositions

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are fairly informal, and can be conducted to sufficiently accommodate a party’s inability to sit,

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such as allowing plaintiff to stand as needed. Depositions are routinely used as part of any civil

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action, and are not intended to trick or pressure a pro se party. The court cannot provide further

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guidance to the plaintiffs as to how to conduct their own deposition. If plaintiffs are unsure how

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to proceed, they may consider obtaining the services or advice of an attorney.

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Accordingly, IT IS HEREBY ORDERED that to the extent plaintiffs are

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requesting a protective order, plaintiffs have not shown good cause for such an order and that

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request is therefore denied without prejudice.

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DATED: July 28, 2011
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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