Lout v. Jovanovich et al

Filing 88

ORDER denying without prejudice 82 Motion for Order to Schedule Depositions; granting 84 Motion for Protective Order; denying 86 Motion for Extension of Deadlines. Signed by Magistrate Judge John Johnston on 3/6/2017. Mailed to Lout. (TAG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
JEFFERY J. LOUT,

CV 15-00055-H-DLC-JTJ

Plaintiff,
vs.

ORDER

ROXANNE TUSS, et al.,
Defendants.
The following motions are pending: Plaintiff Jeffery Lout’s “Motion for
Order to Schedule Depositions” (Doc. 82); Defendants’ Motion for Protective
Order (Doc. 84); and Mr. Lout’s Motion for Extention [sic] of Scheduling Orders
Deadlines for Discovery (Doc. 86).
I. Motion for Depositions
Mr. Lout moves the Court for an order to schedule the taking of 107
depositions of lay and expert witnesses. Attached to that motion is a proposed
order commanding the appearance of lay witnesses for oral deposition (Doc. 82-1
at 1-2); proposed order commanding the appearance of expert witnesses for oral
deposition (Doc. 82-1 at 3-4); Mr. Lout’s first set of witnesses lay-persons and
experts in which he lists 83 lay witnesses and 24 expert witnesses (Doc. 82-2 at 116); a listing of lay person witnesses incarcerated at MSP (Doc. 82-2 at 17-20); a
1

motion for order to transport and return to the Montana State Prison the
incarcerated lay person witness for the taking of oral depositions (Doc. 82-3 at 14); a list of offender lay witnesses to be transferred to MSP for the taking of oral
depositions (Doc. 82-3 at 5-6); a proposed order to transport and return to Montana
State Prison for the taking of oral depositions (Doc. 82-3 at 8-9); a motion for
order of subpoenas for witnesses attendance at oral depositions (Doc. 82-4 at 1-4);
a subpoena and notice to appear at the taking of oral depositions (Doc. 82-4 at 56); a listing of expert witnesses of MSP Staff and outside sponsors (Doc. 82-4 at 78); a list of lay witnesses former Wiccan’s who have been discharged or paroled
(Doc. 82-4 at 9-10); and a list of Wiccan Expert Witnesses (Doc. 82-4 at 11-12).
Defendants oppose the motion arguing that Mr. Lout has not yet made his
required initial disclosures as required by the Court’s August 1, 2016 Scheduling
Order (Doc. 49 at 1-3, ¶ I(A)(B); Mr. Lout has not indicated what method of
recording he will use or how he will pay for the recording or witness fees; and Mr.
Lout has not demonstrated a need to exceed the presumptive limit of 10
depositions imposed by Fed.R.Civ.P. 30(a)(2)(A)(i).
There are a number of problems with Mr. Lout’s requests. First, the motion
does not indicate that he has conferred with defense counsel regarding these issues
and therefore the motion is subject to dismissal pursuant to Local Rule 7.1.
2

Second, Mr. Lout is asking the Court to assist him in litigating this matter by
helping him contact witnesses, schedule depositions, provide for transport of
witness, and provide the means of taking/recording those depositions. The Federal
Rules of Civil Procedure govern the manner in which such depositions may be
taken, either by oral or written questions. Rule 30 of the Federal Rules of Civil
Procedure governs the procedure by which depositions are taken by oral
examination. “A party who wants to depose a person by oral questions must give
reasonable written notice to every other party.” Fed. R. Civ. P. 30(b)(1). “The
party who notices the deposition must state in the notice the method for recording
the testimony.” Fed. R. Civ. P. 30(b)(3)(A). The noticing party must also bear costs
of recording the deposition. Id. In addition, that party must arrange for an officer
to conduct the depositions (absent a stipulation by all parties otherwise). Fed. R.
Civ. P. 30(b)(5)(A). Depositions by written questions must be taken pursuant to
the procedures set forth under Federal Rule of Civil Procedure 31.
Mr. Lout’s in forma pauperis status also does not entitle him to a waiver of
any of the costs associated with taking depositions, including recording costs, court
reporter fees, and transcript fees. Mr. Lout does not need the Court’s permission to
depose any witness (except incarcerated inmates). Yet, he must follow the
applicable rule and bear the costs for any depositions he seeks to take in this
3

matter. His in forma pauperis status does not entitle him to free services from the
Court, such as scheduling, conducting, or recording the deposition, or to utilize
Defendants’ resources for the deposition. See, e.g., Brooks v. Tate, 2013 WL
4049053, *1 (E.D. Cal. Aug. 7, 2013) (indigent prisoner not entitled to take the
depositions of defendant and non-party witnesses during his own deposition). To
the extent Mr. Lout seeks an order for Defendants or defense counsel to make the
necessary arrangements, the Court will not order them to do so. Mr. Lout cites no
authority under the Federal Rules of Civil Procedure that allows or directs the court
to assist in discovery on behalf of a party.
It is Mr. Lout’s responsibility to schedule depositions and provide the means
of taking/recording any depositions. See Fed.R.Civ.P. 30(b)(3); Fed.R.Civ.P.
45(a)(1)(B) (“A subpoena commanding attendance at a deposition must state the
method for recording the testimony.) He has not indicated in any of his filings the
means he intends to use for recording testimony.
Third, because Mr. Lout has been granted leave to proceed in forma pauperis
in this matter, 28 U.S.C. § 1915(d) requires officers of the Court to issue and serve
witness subpoenas. All witnesses, except prisoner-witnesses are entitled to witness
fees. 28 U.S.C. § 1821(f). Each witness is entitled to $40.00 plus mileage for the
distance between his or her home or work address and the courthouse at a rate of
4

$0.535 per mile. See 28 U.S.C. § 1821(b), (c)(2); Tedder v. Odel, 890 F.2d 210
(9th Cir. 1989). The witness fee must be paid by institutional check or money
order made payable to the witness. The check or money order must be attached to
any request to the Court to subpoena the witness. The Court will not order service
of any subpoena that is not accompanied by the appropriate
witness attendance fee.
Fourth, Mr. Lout is seeking to conduct over 107 depositions. Rule 30 of the
Federal Rules of Civil Procedure provides that leave of court is required if a party
is taking more than 10 depositions. Mr. Lout has not provided sufficient
justification for taking such an excessive number of depositions. Also, as
explained by Defendants, the taking of such a large number of inmate witnesses
would put a tremendous burden on the security staff at MSP. The Court will need
sufficient justification to allow Mr. Lout to depose this many inmate witnesses. In
addition, as set forth above, Mr. Lout will need to advise the Court of how he will
provide a means of taking/recording each of these depositions.
Fifth, the Court will direct service of proper subpoenas for Mr. Lout under
28 U.S.C. 1915(d), but only if Mr. Lout submits a completed subpoena in final
form, with appropriate justification for said subpoena, and the fees for one days
attendance and the mileage allowed by law for any non-incarcerated witnesses.
5

See Fed.R.Civ.P. 45(b)(1) (“Serving a subpoena requires delivering a copy to the
named person and, if the subpoena requires that person's attendance, tendering the
fees for 1 day's attendance and the mileage allowed by law.”)
Sixth, the Court will only issue subpoenas which comply with Rule 45 of the
Federal Rules of Civil Procedure. Rule 45(c)(1) provides that
A subpoena may command a person to attend a trial, hearing, or
deposition only as follows:
(A) within 100 miles of where the person resides, is
employed, or regularly transacts business in person; or
(B) within the state where the person resides, is employed, or
regularly transacts business in person, if the person
(i)
is a party or a party's officer; or
(ii) is commanded to attend a trial and would not incur
substantial expense.
Mr. Lout seeks to subpoena a number of witnesses to depositions which would not
be within 100 miles of where the person resides, is employed, or regularly transacts
business.
Mr. Lout’s motion will be denied without prejudice subject to him
complying with the rules set forth above. Mr. Lout must communicate and work
with defense counsel in scheduling and obtaining the appearance of witnesses prior
to seeking Court assistance, he must complete notices of depositions which
indicate the manner of recording and he must arrange for that means of recording,
and should he need subpoenas for witnesses he must submit those subpoenas to the
6

Court in a completed form with appropriate justification.
II. Motion for Protective Order
Defendants seek a protective order to limit Mr. Lout’s discovery requests.
The Scheduling Orders and Order granting Mr. Lout’s Motion to Extend the
Interrogatory Limit (Doc. 71) were clear. The parties were allowed to serve no
more than 50 written interrogatories, including discrete subparts. As such, Mr.
Lout is limited to a total of 50 interrogatories, 25 requests for the production of
documents and 25 requests for admission. It appears that Mr. Lout has now
complied with this ruling. (Lout letter dated February 15, 2017, Doc. 87-1.)
To the extent Mr. Lout seeks additional discovery above the limits set forth
above, Defendants’ motion for protective order is granted.
III. Motion for Extention [sic] of Scheduling Orders Deadlines for Discovery
Mr. Lout asks for a stay of 90 days and an additional 30 days for the filing of
pretrial motions. He argues the case is complex, there is a large number of
defendants, there is a large number of witnesses that need to be deposed, there are
pending discovery motions, there are a large amount of documents to be examined,
and Mr. Lout had an appellate brief due to the Ninth Circuit Court of Appeals in
February.
Defendants oppose the extension arguing that the Court’s discovery orders
7

were clear and the parties are on track to meet the March 10, 2017 discovery
deadline.
The Court is generally inclined to grant necessary extensions but it is
disinclined to do so in this case where the scheduling order has been extended on
two prior occasions. The initial scheduling order in this case was issued on August
1, 2016, and required discovery to be completed by January 5, 2017. (Doc. 49.)
Defendants moved to extend the deadline for procedural motions on October 28,
2016 (Doc. 68) and that motion was granted on October 31, 2016, when the Court
issued its first Amended Scheduling Order (Doc. 69). Pursuant to that order
discovery was set to close on February 6, 2017. Mr. Lout filed a motion for
extension of time to complete discovery on January 3, 2017. The motion was
granted and the Court issued a second Amended Scheduling Order on January 6,
2017, extending the discovery deadline to March 10, 2017. (Doc. 77.)
Defendants represent that Mr. Lout has served his answers to Defendants’
discovery requests and Defendants have agreed to serve their responses to Mr.
Lout’s modified discovery requests on or before March 10, 2017. The request to
take the enormous amount of depositions in this case and the other discovery issues
are resolved by this Order. The Court therefore sees no need to further extend
discovery or any other deadlines. All discovery shall be completed on or before
8

March 10, 2017, and all pretrial motions shall be filed on or before April 7, 2017.
Based upon the foregoing, the Court issues the following:
ORDER
1. Mr. Lout’s “Motion for Order to Schedule Depositions” (Doc. 82) and
the motions attached thereto are DENIED WITHOUT PREJUDICE.
2. Defendants’ Motion for Protective Order (Doc. 84) is GRANTED. The
parties are limited to 50 total interrogatories, 25 total requests for admissions, and
25 total requests for production of documents.
3. Mr. Lout’s Motion for Extention [sic] of Scheduling Orders Deadlines for
Discovery (Doc. 86) is DENIED.
DATED this 6th day of March 2017.

/s/ John Johnston
John Johnston
United States Magistrate Judge

9