Dallas Buyers Club, LLC v. DOE-

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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 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] 13 14 15 v. DOE-, Defendant. 16 17 18 On May 20, 2016, Plaintiff, Dallas Buyers Club, LLC, filed an Ex Parte Motion for 19 Leave to Conduct a Deposition by Written Questions Under Federal Rule of Civil 20 Procedure 31. (ECF No. 10.) Because Defendant has not been named or served, no 21 opposition or reply briefs have been filed. For the reasons discussed below, Plaintiff’s 22 Motion is DENIED. 23 I. BACKGROUND 24 On February 8, 2016, Plaintiff filed a Complaint against Doe, a subscriber assigned 25 IP address (“Defendant”). (ECF No. 1.) Plaintiff alleges a single cause of 26 action for direct copyright infringement. Plaintiff asserts that it is the registered copyright 27 holder of the motion picture Dallas Buyers Club. (See ECF No. 1 at ¶¶ 4, 6.) Plaintiff 28 contends Defendant used the BitTorrent file distribution network to copy and distribute 1 16cv317-BAS (DHB) 1 Plaintiff’s copyrighted work through the Internet without Plaintiff’s permission. (ECF No. 2 1 at ¶ 35.) 3 On February 22, 2016, the Court permitted Plaintiff to serve a Rule 45 subpoena on 4 Cox Communications to learn the identity of the subscriber assigned to Defendant’s IP 5 address. (ECF No. 7.) 6 On April 8, 2016, Cox Communications provided Plaintiff the name and physical 7 address of the subscriber. (ECF No. 10-1 at 4.) Thereafter, Plaintiff sent a letter to the 8 subscriber, Sydney Leibel, requesting that he voluntarily cooperate with Plaintiff to 9 identify the infringer, and inviting him to contact Plaintiff’s counsel with questions. (ECF 10 No. 10-5.) On April 21, 2016, Plaintiff sent a second letter to the subscriber. (ECF No. 11 10-6.) Plaintiff contends it has not received a response to the letters. 12 Therefore, Plaintiff brings the instant motion seeking permission to depose the 13 subscriber by written questions under Rule 31. (ECF No. 10.) Plaintiff acknowledges that 14 the Court has previously denied oral depositions of third parties under Rule 45. Plaintiff 15 argues that Rule 31 provides is a less burdensome means for Plaintiff to solicit information 16 than by use of depositions under Rule 45. 17 II. ANALYSIS 18 Federal Rule of Civil Procedure 31 permits depositions of any person by written 19 questions instead of by oral examination. Fed.R.Civ.P. 31(a). Based on the Rule’s title, it 20 may sound like a deposition by written questions is a less burdensome way to obtain 21 deposition discovery. However, once the Rule is examined, it is clear that depositions by 22 written questions “entail more than mailing questions to the deponents and awaiting their 23 written response.” Dasenbrook v. Enenmoh, 2015 WL 1889069, *2 (E.D. Cal. April 24, 24 2015). Rule 31 requires the party taking the deposition to deliver the written questions to 25 a deposition officer. Fed.R.Civ.P. 31(b). The deposition then proceeds in a manner similar 26 to oral depositions. Id. (incorporating Rule 30(c), (e), and (f)). The deponent is put under 27 oath, and then the deposition officer “must ask the deponent [the written] questions and 28 record the answers verbatim.” Fed.R.Civ.P. 30(c)(3). Following the deposition, a 2 16cv317-BAS (DHB) 1 transcript is prepared in the same manner as an oral deposition. Fed.R.Civ.P. 31(b)(2)-(3). 2 Therefore, Plaintiff’s contention that a deposition by written questions is appropriate 3 here because it is a less intrusive alternative is without merit. In addition, the Court notes 4 that Plaintiff’s counsel has previously abused the procedure under Rule 31. See Cobbler 5 Nevada LLC v. Doe, 15cv2729-GPC (JMA), ECF No. 27 (S.D. Cal. July 5, 6 2016) (denying motion to compel responses to deposition by written questions where 7 counsel attempted to use Rule 31 in a manner that was functionally similar to 8 interrogatories, which is improper and not permitted by the federal rules). Therefore, the 9 Court declines to permit Plaintiff to pursue a deposition by written questions, which if the 10 Rule were correctly followed, would require essentially the same burden on the third party 11 as an oral deposition. 12 13 14 15 16 17 18 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 19 20 21 22 23 24 25 26 27 28 3 16cv317-BAS (DHB)

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