Ashker et al v. Schwarzenegger et al

Filing 62

ORDER by Judge Claudia Wilken GRANTING PLAINTIFFS 42 RENEWED MOTION FOR TAPED DEPOSITIONS. (ndr, COURT STAFF) (Filed on 10/11/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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TODD ASHKER and DANNY TROXELL,

No. 09-05796 CW

Plaintiffs,

ORDER GRANTING
PLAINTIFFS’
RENEWED MOTION
FOR TAPED
DEPOSITIONS

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v.
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EDMUND G. BROWN, JR., et al.,
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Defendants.
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Pro se Plaintiffs Todd Ashker and Danny Troxell, inmates at

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Pelican Bay State Prison (PBSP), renew their motion for taping the

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depositions of Defendant G.H. Wise and Defendants’ agent, Devan

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Hawkes.

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motion as premature because Defendants had not yet answered the

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complaint.

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Plaintiffs have filed this renewed motion.

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an opposition.

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On May 5, 2011, the Court denied Plaintiffs’ original

On May 5, 2011, Defendants filed their answer and
Defendants have filed

Federal Rule of Civil Procedure 30 governs notice and
requirements for taking depositions.

Rule 30(3)(A) provides:

The party who notices the deposition must state in the
notice the method for recording the testimony. Unless
the court orders otherwise, testimony may be recorded by

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audio, audiovisual, or stenographic means. The noticing
party bears the recording costs. Any party may arrange
to transcribe a deposition.

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Under Rule 30(3)(A), Plaintiffs may decide whether to record

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deposition testimony by any of three methods listed therein and

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Plaintiffs have chosen to record it by audio recorder.

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Defendants insist that there is only one way for Plaintiffs to take

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depositions, and that is using a stenographer.

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However,

Defendants argue that Plaintiffs have failed to provide any
evidence that they do not have access to a stenographer or that

United States District Court
For the Northern District of California

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they cannot afford one.

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three recording methods is proper; there is no preference for a

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stenographer or need for parties to prove they cannot access or

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afford a stenographer in order to notice a deposition using one of

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the other two recording methods.

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However, Rule 30 provides that any one of

Defendants argue that taking depositions by tape recorder

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would impose significant expenses on them because they would have

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to employ extra staff to transport Plaintiffs to and from the

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depositions, provide security for the depositions, provide the

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means of recording the depositions, transcribe the depositions and

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incur the expense of defense counsel traveling to PBSP in Crescent

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City.

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depositions by recorder would cost them more than by stenographer.

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Using either recording method, the expenses for transportation,

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security and transcribing should be the same.

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Plaintiffs have suggested that the recording take place in the PBSP

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Secured Housing Unit Parole Board Hearing Room, so that efforts to

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transport Plaintiffs would be minimal.

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Defendants do not provide evidence that taking the

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Furthermore,

Plaintiffs state that they

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have access to a recorder from the PBSP litigation department.

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Plaintiffs’ suggestion that the depositions be recorded by two

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recorders simultaneously, thus providing all parties with the same

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tapes, seems reasonable.

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According to Plaintiffs, Defendants argue that recording is

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improper because Federal Rule of Civil Procedure 30(b)(5) requires

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that an officer authorized under Rule 28 administer the oath or

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affirmation of the deponent and state certain information at the

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beginning of each unit of the recording medium and at the end of

United States District Court
For the Northern District of California

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the deposition.

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counsel undertake the tasks required by Rule 30(b)(5).

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reasonable solution because Rule 30 allows the parties to stipulate

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that an individual other than one authorized by Rule 28 may perform

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the required duties.

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Plaintiffs suggest that the PBSP notary or defense
This is a

Defendants also argue that Plaintiffs are not permitted to be

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in the same room together because of security concerns.

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be an issue whether the depositions are recorded by tape or

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stenographer.

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conjunction with PBSP staff, must devise logistics to ameliorate

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any security concerns.

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In summary,

This would

Under either recording method, the parties, in

Defendants’ arguments for requiring the use of a

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stenographer to record depositions instead of an audio recorder are

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without merit.

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do so if they provide and pay the stenographer and provide a copy

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of the transcripts of the depositions to Plaintiffs.

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If Defendants wish to use a stenographer, they may

CONCLUSION
Based on the foregoing, Plaintiffs’ motion to record the
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depositions of Wise and Hawkes by audio recorder is granted.
IT IS SO ORDERED.

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Dated:

10/11/2011
CLAUDIA WILKEN
United States District Judge

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United States District Court
For the Northern District of California

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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TODD ASHKER et al,

Case Number: CV09-05796 CW

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Plaintiff,

CERTIFICATE OF SERVICE

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v.
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ARNOLD SCHWARZENEGGER et al,
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Defendant.
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United States District Court
For the Northern District of California

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court,
Northern District of California.
That on October 11, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said
envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located
in the Clerk's office.

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Danny Troxell
Pelican Bay State Prison
B76578
P.O. Box 7500
D1-120
Crescent City, CA 95532
Todd Ashker C58191
Pelican Bay State Prison
P.O. Box 7500
D1-SHU
Crescent City, CA 95532
Dated: October 11, 2011
Richard W. Wieking, Clerk
By: Nikki Riley, Deputy Clerk

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