Polk v. Cavin et al

Filing 106

ORDER GRANTING REQUEST FOR SUBPOENAS; DENYING REQUEST FOR COURT TO ORDER DEPOSITIONS; DIRECTIONS TO CLERK. Signed by Judge Maxine M. Chesney on November 9, 2011. (mmcsec, COURT STAFF) (Filed on 11/9/2011) (Additional attachment(s) added on 11/9/2011: # 1 Certificate of Service) (tlS, COURT STAFF).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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Plaintiff,
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v.
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DEPUTY JAMES CAVIN, et al.,
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Defendants.
_______________________________ )
SUSAN MAE POLK,

No. C 08-1483 MMC (PR)
ORDER GRANTING REQUEST FOR
SUBPOENAS; DENYING REQUEST
FOR COURT TO ORDER
DEPOSITIONS; DIRECTIONS TO
CLERK
(Docket No. 94, 95, 97)

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On March 17, 2008, plaintiff, a California prisoner then incarcerated at the Central

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California Women’s Facility in Chowchilla, California (“CCWF”), and proceeding pro se,

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filed the above-titled civil rights action under 42 U.S.C. § 1983.1 On March 10, 2010, the

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Court dismissed plaintiff’s claims and entered judgment for defendants. On August 17,

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2011, the Ninth Circuit issued an opinion reversing this Court’s dismissal of plaintiff’s

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claims and remanding for further proceedings. On September 23, 2011, the Court reopened

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the case and informed the parties they could take discovery in accordance with the Federal

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Rules of Civil Procedure. Now pending before the Court are plaintiff’s request for “three

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subpoenas duces tecum” and request to depose defendants. The Court addresses each request

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in turn.

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Plaintiff currently is incarcerated at Valley State Prison for Women (“VSPW”).

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First, with respect to the subpoenas duces tecum, good cause appearing, the request
will be granted.

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Second, with respect to the depositions, plaintiff requests defendants Cavin,

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Chertkow, Rupf, Roberts, Gibson, and Patrick be ordered to appear at VSPW to have their

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depositions taken, and that the Court order the Warden of VSPW to make a private room

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available for the purpose of taking such depositions as well as provide equipment for the

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recording of such depositions.

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In general, the court is not involved with discovery matters unless and until the parties

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have satisfied the “meet and confer” requirements of the discovery rules. See Fed. R. Civ. P.
37(a)(1) (providing motion to compel must include certification movant has in good faith

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For the Northern District of California

United States District Court

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conferred or attempted to confer with non-disclosing party in effort to secure disclosure

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without court action). Moreover, federal courts do not conduct discovery for the parties.

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Accordingly, plaintiff’s request for the Court to order depositions and/or the manner in which

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such discovery is to be taken will be denied without prejudice.

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If plaintiff wishes to have a witness appear to testify at deposition, she must make

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arrangements to pay for it. The cost for a deposition is the cost of a court reporter (for which

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plaintiff must make arrangements and pay), plus a witness fee of $40.00 per day and actual

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transportation expenses. See 28 U.S.C. § 1821. The court does not waive these costs and

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fees, even for litigants appearing in forma pauperis, and plaintiff must pay them herself or

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have someone pay them on her behalf.

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Due to the cost of conducting depositions, many litigants find it easier to try to obtain

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discovery through several other discovery methods available under the Federal Rules of Civil

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Procedure. For example: if plaintiff wants written responses from a defendant, she can send

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a set of interrogatories (Rule 33); if she only wants single-word answers (i.e., “admit” or

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“deny”) from a defendant, she can send a request for admission (Rule 36); if she wants

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documents from a defendant, she can send a request for production of documents (Rule 34).

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Discovery requests and responses normally are exchanged between the parties without any

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copy sent to the court. See Fed. R. Civ. P. 5(d) (listing discovery requests and responses that
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“must not” be filed with court until used in proceeding or court orders otherwise).
CONCLUSION

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For the foregoing reasons, the Court orders as follows:

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1. Plaintiff’s request for subpoenas duces tecum is hereby GRANTED; the Clerk is

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DIRECTED to send three blank subpoenas to plaintiff for her to complete and return to the

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court for issuance by the Clerk and thereafter to be returned to plaintiff for service.
2. Plaintiff’s request for depositions is hereby DENIED without prejudice.

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This order terminates Docket Nos. 94, 95, and 97.

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IT IS SO ORDERED.

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DATED: November 9, 2011

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For the Northern District of California

United States District Court

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_________________________
MAXINE M. CHESNEY
United States District Judge

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