Dennis v. Kerman et al

Filing 105

ORDER signed by Magistrate Judge Allison Claire on 5/4/2021 DENYING 104 Motion for Leave to Depose Defendants by Written Question. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MATTHEW DENNIS,

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Plaintiff,

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No. 2:16-cv-0542 JAM AC P

v.

ORDER

SCOTT KERNAN, et al.,

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Defendants.

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Plaintiff, a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C.

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§ 1983, has filed a motion requesting leave to depose defendants by written question. ECF No.

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104.

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This case, including discovery, is currently stayed pending the resolution of plaintiff’s

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interlocutory appeal, ECF No. 100, and the motion will therefore be denied. Plaintiff is advised

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that once the stay is lifted and discovery has opened, he does not require leave of this court to

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conduct a deposition by written question unless the parties have not stipulated to the deposition

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and “the deposition would result in more than 10 depositions being taken [by plaintiff] under this

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rule or Rule 30” or “the deponent has already been deposed in the case.” Fed. R. Civ. P. 31(a).

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A deposition by written questions pursuant to Rule 31 proceeds like any other deposition,

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but with the deposition officer (usually the court reporter) asking the questions of the witness as

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submitted in writing by the deposing party. If plaintiff wants to depose either defendant, he will
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be responsible for setting up the deposition, including setting the date, time, and location of the

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deposition, arranging for a court reporter, and paying any fees for the court reporter’s services and

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for the transcription of the deposition. See Matthews v. Puckett, 670 F. App’x 964, 965 (9th Cir.

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2016) (upholding denial of request for additional copy of deposition transcript because indigent

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plaintiff “must bear his own discovery costs” (citing Tedder v. Odel, 890 F.2d 210, 211 (9th Cir.

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1989) (per curiam))). As one court has noted, “[t]he deposition upon written questions procedure

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may sound like an inexpensive way for a prisoner to do discovery but usually is not.” Lopez v.

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Horel, No. C 06-4772 SI (pr), 2007 WL 2177460, at *2 n.2, 2007 U.S. Dist. LEXIS 56903, at *7

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(N.D. Cal. July 27, 2007).

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

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defendants by written question, ECF No. 104, is DENIED.

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DATED: May 4, 2021

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