Modica v. Cox et al

Filing 37

ORDER signed by Magistrate Judge Dale A. Drozd on 1/30/13 DENYING 34 Motion seeking leave to conduct a deposition by written questions. (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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ANTOINE E. MODICA, SR.

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Plaintiff,

No. 2:11-cv-2163 DAD P

Defendants.

ORDER

vs.
B. COX, et al.

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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action,

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seeking relief under 42 U.S.C. § 1983. He has moved for leave to take a written deposition of

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Lashawn Thomas, who, according to plaintiff, “is still incarcerated in the California Correctional

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Facility in Susanville, California,” and “can provide information relevant to prove my case[.]”

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(Dkt. No. 34 at 1-2.)

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The defendants have filed a statement of non-opposition to plaintiff’s motion.

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However, a deposition of an inmate by written questions requires leave of court under Rule

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31(a)(2)(B) of the Federal Rules of Civil Procedure and is therefore an available discovery tool,

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to some extent, at the discretion of the court. Rule 31(a)(2) expressly incorporates Rule 26(b),

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which provides in part that “the court must limit the . . . extent of discovery otherwise allowed by

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these rules if it determines that: the discovery sought . . . can be obtained from some other
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source that is more convenient, less burdensome, or less expensive[.]” Fed. R. Civ. P.

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26(b)(2)(C)(i).

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As one of the leading treatises on federal civil procedure puts it, “[t]hough Rule

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31 appears to offer a saving in expense when the deposition is to be taken at some far off place,

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its advantages are largely illusory. The procedure is more cumbersome than an oral examination,

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and is less suitable for a complicated inquiry, or for a searching interrogation of a hostile or

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reluctant witness.” Wright & Kane, 20 Fed. Prac. & Proc. Deskbook § 91. Indeed, the procedure

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that plaintiff seeks would require the services of a court reporter to put the parties’ questions,

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cross-questions, redirect-questions and re-cross questions to the witness, transcribe and certify

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his answers and deliver them to the plaintiff, who would then send a notice of completion to the

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other parties. See Fed. R. Civ. P. 31(a)(5), (b). Plaintiff has made no showing why he cannot

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obtain inmate Thomas’ statement through simpler means, such as the solicitation of a sworn

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declaration, nor has he suggested any way of paying the court reporter who would carry out Rule

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31’s tedious procedure.

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The existence of unexplored avenues by which plaintiff may obtain inmate

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Thomas’ statement suggests a “source that is more convenient, less burdensome, or less

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expensive” than a deposition by written questions. Fed. R. Civ. P. 26(b)(2)(C)(i). Under these

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circumstances, leave for deposing inmate Thomas by written questions will be denied.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion seeking leave to

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conduct a deposition by written questions (Dkt. No. 34) is denied.

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DATED: January 30, 2013.

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modi2163.ord

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