Blackmon v. Kukua et al

Filing 48

ORDER granting 47 Motion for Leave to Depose.(Signed by Magistrate Judge Brian L Owsley) Parties notified.(lcayce, )

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS CORPUS CHRISTI DIVISION EUGENE BLACKMON TDCJ-CID #485431 v. WARDEN KUKUA, ET AL. § § § § §

C.A. NO. C-08-273

ORDER GRANTING LEAVE FOR DEPOSITION BY WRITTEN QUESTIONS Plaintiff is an inmate in the Texas Department of Criminal Justice, Correctional Institutions Division, and is currently incarcerated at the Chase Field W6 in Beeville, Texas. Proceeding pro se, he filed a civil rights action pursuant to 42 U.S.C. § 1983. (D.E. 1). Pending is plaintiff's motion for leave to depose a witness by written questions. (D.E. 47). Specifically, he seeks leave to depose Joe Nunez, an inmate at the Garza East Unit. Id. As an initial matter, the Federal Rules of Civil Procedure require that any party seeking to depose by written questions someone "confined in prison" must first obtain leave of the court. Fed. R. Civ. P. 31(a)(2)(B); accord Whitehurst v. United States, 231 F.R.D. 500, 501 (S.D. Tex. 2005). "Unless the parties stipulate otherwise," deposition by written questions must be conducted before an officer. See Fed. R. Civ. P. 28(a)(1); Fed. R. Civ. P. 31(b). The party serving the deposition must deliver it to the officer. Fed. R. Civ. P. 31(b). Furthermore, the party noticing the deposition has an obligation to notify when the deposition is completed. Fed. R. Civ. P. 31(c). It appears that plaintiff has already provided Mr. Nunez with the deposition and he has answered the questions. (D.E. 47). This approach does not allow defendants to object to specific questions or pose their own questions to the deponent. Therefore, the deposition by written questions will have to be provided to Mr. Nunez again. If the parties cannot stipulate,

then it is ordered that the law librarian of the unit where Mr. Nunez is incarcerated serve as the officer for the deposition by written questions. Plaintiff must serve a copy of the deposition by written questions on defendants' attorney. Defense counsel will ensure that deponent receives the deposition and that the deposition is completed within thirty days of receipt. Accordingly, plaintiff's motion for leave to depose a witness by written questions, (D.E. 47), is GRANTED consistent with this Order. ORDERED this 25th day of February 2009. ____________________________________ BRIAN L. OWSLEY UNITED STATES MAGISTRATE JUDGE

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