Ashker et al v. Schwarzenegger et al

Filing 62


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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 9 United States District Court For the Northern District of California 10 TODD ASHKER and DANNY TROXELL, No. 09-05796 CW Plaintiffs, ORDER GRANTING PLAINTIFFS’ RENEWED MOTION FOR TAPED DEPOSITIONS 11 12 v. 13 EDMUND G. BROWN, JR., et al., 14 Defendants. 15 / 16 17 Pro se Plaintiffs Todd Ashker and Danny Troxell, inmates at 18 Pelican Bay State Prison (PBSP), renew their motion for taping the 19 depositions of Defendant G.H. Wise and Defendants’ agent, Devan 20 Hawkes. 21 motion as premature because Defendants had not yet answered the 22 complaint. 23 Plaintiffs have filed this renewed motion. 24 an opposition. 25 26 27 28 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 1 2 audio, audiovisual, or stenographic means. The noticing party bears the recording costs. Any party may arrange to transcribe a deposition. 3 Under Rule 30(3)(A), Plaintiffs may decide whether to record 4 deposition testimony by any of three methods listed therein and 5 Plaintiffs have chosen to record it by audio recorder. 6 Defendants insist that there is only one way for Plaintiffs to take 7 depositions, and that is using a stenographer. 8 9 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 10 they cannot afford one. 11 three recording methods is proper; there is no preference for a 12 stenographer or need for parties to prove they cannot access or 13 afford a stenographer in order to notice a deposition using one of 14 the other two recording methods. 15 However, Rule 30 provides that any one of Defendants argue that taking depositions by tape recorder 16 would impose significant expenses on them because they would have 17 to employ extra staff to transport Plaintiffs to and from the 18 depositions, provide security for the depositions, provide the 19 means of recording the depositions, transcribe the depositions and 20 incur the expense of defense counsel traveling to PBSP in Crescent 21 City. 22 depositions by recorder would cost them more than by stenographer. 23 Using either recording method, the expenses for transportation, 24 security and transcribing should be the same. 25 Plaintiffs have suggested that the recording take place in the PBSP 26 Secured Housing Unit Parole Board Hearing Room, so that efforts to 27 transport Plaintiffs would be minimal. 28 Defendants do not provide evidence that taking the 2 Furthermore, Plaintiffs state that they 1 have access to a recorder from the PBSP litigation department. 2 Plaintiffs’ suggestion that the depositions be recorded by two 3 recorders simultaneously, thus providing all parties with the same 4 tapes, seems reasonable. 5 According to Plaintiffs, Defendants argue that recording is 6 improper because Federal Rule of Civil Procedure 30(b)(5) requires 7 that an officer authorized under Rule 28 administer the oath or 8 affirmation of the deponent and state certain information at the 9 beginning of each unit of the recording medium and at the end of United States District Court For the Northern District of California 10 the deposition. 11 counsel undertake the tasks required by Rule 30(b)(5). 12 reasonable solution because Rule 30 allows the parties to stipulate 13 that an individual other than one authorized by Rule 28 may perform 14 the required duties. 15 Plaintiffs suggest that the PBSP notary or defense This is a Defendants also argue that Plaintiffs are not permitted to be 16 in the same room together because of security concerns. 17 be an issue whether the depositions are recorded by tape or 18 stenographer. 19 conjunction with PBSP staff, must devise logistics to ameliorate 20 any security concerns. 21 In summary, This would Under either recording method, the parties, in Defendants’ arguments for requiring the use of a 22 stenographer to record depositions instead of an audio recorder are 23 without merit. 24 do so if they provide and pay the stenographer and provide a copy 25 of the transcripts of the depositions to Plaintiffs. 26 27 28 If Defendants wish to use a stenographer, they may CONCLUSION Based on the foregoing, Plaintiffs’ motion to record the 3 1 2 depositions of Wise and Hawkes by audio recorder is granted. IT IS SO ORDERED. 3 4 Dated: 10/11/2011 CLAUDIA WILKEN United States District Judge 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 1 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 2 3 TODD ASHKER et al, Case Number: CV09-05796 CW 4 Plaintiff, CERTIFICATE OF SERVICE 5 v. 6 ARNOLD SCHWARZENEGGER et al, 7 Defendant. 8 9 United States District Court For the Northern District of California 10 11 12 / 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. 13 14 15 16 17 18 19 20 21 22 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 23 24 25 26 27 28 5

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