Dallas Buyers Club, LLC v. DOE-70.181.229.254

Filing 11

ORDER denying Plaintiff's 10 Ex Parte Motion for Leave to Conduct a Deposition by Written Questions Under FRCP 31. Signed by Magistrate Judge David H. Bartick on 7/15/2016. (jah)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 16cv317-BAS (DHB)

DALLAS BUYERS CLUB, LLC, a Texas
limited liability company,
Plaintiff,

ORDER DENYING PLAINTIFF'S EX
PARTE MOTION FOR LEAVE TO
CONDUCT A DEPOSITION BY
WRITTEN QUESTIONS UNDER
FRCP 31[ECF No. 10]

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v.
DOE-70.181.229.254,
Defendant.

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On May 20, 2016, Plaintiff, Dallas Buyers Club, LLC, filed an Ex Parte Motion for

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Leave to Conduct a Deposition by Written Questions Under Federal Rule of Civil

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Procedure 31. (ECF No. 10.) Because Defendant has not been named or served, no

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opposition or reply briefs have been filed. For the reasons discussed below, Plaintiff’s

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Motion is DENIED.

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I. BACKGROUND

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On February 8, 2016, Plaintiff filed a Complaint against Doe, a subscriber assigned

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IP address 70.181.229.254 (“Defendant”). (ECF No. 1.) Plaintiff alleges a single cause of

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action for direct copyright infringement. Plaintiff asserts that it is the registered copyright

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holder of the motion picture Dallas Buyers Club. (See ECF No. 1 at ¶¶ 4, 6.) Plaintiff

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contends Defendant used the BitTorrent file distribution network to copy and distribute
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16cv317-BAS (DHB)

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Plaintiff’s copyrighted work through the Internet without Plaintiff’s permission. (ECF No.

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1 at ¶ 35.)

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On February 22, 2016, the Court permitted Plaintiff to serve a Rule 45 subpoena on

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Cox Communications to learn the identity of the subscriber assigned to Defendant’s IP

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address. (ECF No. 7.)

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On April 8, 2016, Cox Communications provided Plaintiff the name and physical

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address of the subscriber. (ECF No. 10-1 at 4.) Thereafter, Plaintiff sent a letter to the

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subscriber, Sydney Leibel, requesting that he voluntarily cooperate with Plaintiff to

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identify the infringer, and inviting him to contact Plaintiff’s counsel with questions. (ECF

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No. 10-5.) On April 21, 2016, Plaintiff sent a second letter to the subscriber. (ECF No.

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10-6.) Plaintiff contends it has not received a response to the letters.

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Therefore, Plaintiff brings the instant motion seeking permission to depose the

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subscriber by written questions under Rule 31. (ECF No. 10.) Plaintiff acknowledges that

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the Court has previously denied oral depositions of third parties under Rule 45. Plaintiff

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argues that Rule 31 provides is a less burdensome means for Plaintiff to solicit information

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than by use of depositions under Rule 45.

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II. ANALYSIS

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Federal Rule of Civil Procedure 31 permits depositions of any person by written

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questions instead of by oral examination. Fed.R.Civ.P. 31(a). Based on the Rule’s title, it

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may sound like a deposition by written questions is a less burdensome way to obtain

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deposition discovery. However, once the Rule is examined, it is clear that depositions by

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written questions “entail more than mailing questions to the deponents and awaiting their

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written response.” Dasenbrook v. Enenmoh, 2015 WL 1889069, *2 (E.D. Cal. April 24,

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2015). Rule 31 requires the party taking the deposition to deliver the written questions to

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a deposition officer. Fed.R.Civ.P. 31(b). The deposition then proceeds in a manner similar

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to oral depositions. Id. (incorporating Rule 30(c), (e), and (f)). The deponent is put under

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oath, and then the deposition officer “must ask the deponent [the written] questions and

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record the answers verbatim.”

Fed.R.Civ.P. 30(c)(3).

Following the deposition, a

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16cv317-BAS (DHB)

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transcript is prepared in the same manner as an oral deposition. Fed.R.Civ.P. 31(b)(2)-(3).

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Therefore, Plaintiff’s contention that a deposition by written questions is appropriate

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here because it is a less intrusive alternative is without merit. In addition, the Court notes

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that Plaintiff’s counsel has previously abused the procedure under Rule 31. See Cobbler

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Nevada LLC v. Doe 68.8.213.203, 15cv2729-GPC (JMA), ECF No. 27 (S.D. Cal. July 5,

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2016) (denying motion to compel responses to deposition by written questions where

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counsel attempted to use Rule 31 in a manner that was functionally similar to

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interrogatories, which is improper and not permitted by the federal rules). Therefore, the

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Court declines to permit Plaintiff to pursue a deposition by written questions, which if the

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Rule were correctly followed, would require essentially the same burden on the third party

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as an oral deposition.

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III. CONCLUSION
For the reasons set forth above, Plaintiff’s Ex Parte Motion for Expedited Discovery
is DENIED.
IT IS SO ORDERED.
Dated: July 15, 2016
_________________________
DAVID H. BARTICK
United States Magistrate Judge

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16cv317-BAS (DHB)