Stephens v. Fredrickson et al

Filing 85

ORDER by Judge Richard A Jones. The court DENIES Defendants' objection (Dkt. # [83) to Judge Theiler's November 19 order. (CL) Modified on 12/10/2013 (CL). (cc: pltf)

HONORABLE RICHARD A. JONES

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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FRED A. STEPHENS,

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ORDER

v.
SGT. TODD FREDRICKSON, et al.,
Defendants.

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CASE NO. C12-1067RAJ-MAT

Plaintiff,

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I. INTRODUCTION

This matter comes before the court on Defendants’ objection to a November 19,

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2013 order from the Honorable Mary Alice Theiler, United States Magistrate Judge. This

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District’s local rules prohibit an opposing party from responding to an objection unless

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the court orders a response. Local Rules W.D. Wash. LCR 72(a). The court finds that no

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response is necessary. The court DENIES the objection. Dkt. # 83.

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II. DISCUSSION

Judge Theiler’s order resolved, among other things, Plaintiff’s motion to compel

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the depositions of three or four prison officials. Judge Theiler found the request for

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depositions “entirely reasonable,” and ordered the parties to “promptly meet and confer

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to resolve issues associated with the depositions and any other outstanding discovery

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disputes.” There is no evidence that Defendants met their obligation to meet and confer.

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ORDER – 1

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Instead, they filed this objection, in which they complain that Judge Theiler did not make

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explicit instructions as to how to complete the depositions.

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Defendants’ approach, in both this objection and in their opposition to Plaintiff’s

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motion to compel, has been to decry the cost and logistical difficulty of conducting

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depositions inside the prison. Their objections as to cost are meritless. Plaintiff offered

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to pay for audiocassettes necessary to record the depositions, and to pay the costs of

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transcription. Pltf.’s Reply (Dkt. # 79) at 3. Plaintiff also offered to pay the cost of

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renting recording equipment from a nearby community college. Pltf.’s Mot. (Dkt. # 74)

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at 3. Defendants’ only viable challenge regarding logistics is that Federal Rule of Civil

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Procedure 28 allows many people to serve as officers before whom a deposition may be

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taken, but it does not permit a deposition to be taken before a party’s relative, employee,

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attorney, or a person with a financial interest in the outcome of the action. Compare Fed.

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R. Civ. P. 28(a) with Fed. R. Civ. P. 28(c). So far, Plaintiff has not proposed an officer

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qualified to preside over a deposition. As he observes, however, the parties may stipulate

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to have a deposition taken before “any person” and in any matter. Fed. R. Civ. P. 29(a).

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The court assumes that this provision is one of the many reasons Judge Theiler ordered

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the parties to meet and confer.

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A court can modify a magistrate’s order resolving a nondispositive motion only

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where it is “clearly erroneous” or “contrary to law.” Fed. R. Civ. P. 72(a). Defendants

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have demonstrated no error, much less clear error, and no portion of the order is contrary

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to law. The parties shall meet and confer as Judge Theiler ordered. It is in everyone’s

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interest to reach an appropriate stipulation as to taking these depositions. If Defendants

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are unwilling to reach a stipulation that avoids the need for a person from outside the

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prison to serve as an officer to preside over the deposition, Mr. Stephens may move the

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court for permission to have an outside officer appointed.

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ORDER – 2

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Finally, the court notes that Defendants perpetually tout the difficulty of

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conducting litigation from inside a prison as a reason to deny Plaintiff basic discovery.

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While the court appreciates the challenges unique to prison litigation, prisoners are

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entitled to access to the courts. If Defendants continue to deny him reasonable access,

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the court will consider sanctions.

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III. CONCLUSION

For the reasons stated above, the court DENIES Defendants’ objection (Dkt. # 83)
to Judge Theiler’s November 19 order.
DATED this 10th day of December, 2013.

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A

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The Honorable Richard A. Jones
United States District Court Judge

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ORDER – 3