Opinion
1:08-cv-01896-LJO-GSA-PC
08-22-2011
ORDER DENYING REQUEST TO CONDUCT DEPOSITIONS, WITHOUT PREJUDICE
(Doc. 39.)
ORDER FOR CLERK TO SEND PLAINTIFF A COPY OF RULES 28, 30, 31, AND 45 OF THE FEDERAL RULES OF CIVIL PROCEDURE
Jasimi Jermaine Calloway ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. A scheduling order was issued on June 14, 2011, establishing pre-trial deadlines for this action. (Doc. 31.) This case is currently in the discovery phase. On August 11, 2011, Plaintiff filed a request to conduct oral depositions. (Doc. 39.) On August 15, 2011, Defendants filed an opposition. (Doc. 40.)
Plaintiff requests leave to conduct oral depositions of defendants Wang, Oaks, and Hayward before a licensed stenographer. Plaintiff requests a court order directing Defendants' counsel to make arrangements for the depositions to be held at Kern Valley State Prison or any other California State Prison.
In opposition, Defendants argue that Plaintiff's in forma pauperis status does not entitle him to a court-appointed deposition reporter to take depositions, or free deposition transcripts. Defendants also argue that there is no authority that defendants or their counsel are responsible for conducting Plaintiff's discovery for him. Defendants also assert that in the event that Plaintiff somehow arranges to conduct depositions and seeks to personally take Defendants' depositions, Defendants intend to request a protective order on the grounds that Plaintiff has a history of physical violence while incarcerated, including against defendant Hayward.
If Plaintiff wishes to conduct oral or written depositions, Plaintiff is cautioned that he must comply with the Federal Rules of Civil Procedure. Unless the parties stipulate otherwise, an oral deposition must be conducted before an officer appointed or designated under Rule 28. Fed. R. Civ. P. 30(b)(5)(A). Depositions by written questions entail more than simply mailing questions to the deponents and awaiting their written responses. See Fed. R. Civ. P. 31. If Plaintiff wishes to compel attendance of non-parties at a deposition by subpoena, he must comply with Rule 45 of the Federal Rule of Civil Procedure. The Court will direct the Clerk's Office to send Plaintiff a copy of Rules 28, 30, 31, and 45. If, after reviewing the rules, Plaintiff believes he is able to conduct depositions in compliance with the rules, Plaintiff shall notify the Court and make a showing that he is able and willing to retain an officer to take responses and prepare the record. Fed. R. Civ. P. 31(b). At that juncture, the Court will reconsider Plaintiff's request to conduct depositions and will determine what course of action is needed to facilitate the depositions.
Defendants correctly state that Plaintiff's in forma pauperis status does not entitle him to a court-appointed deposition reporter or free deposition transcripts. See 28 U.S.C. § 1915; Wright v. United States, 948 F.Supp. 61, 61-62 (M.D.Fla.1996) (parties proceeding in forma pauperis are responsible for payment of discovery costs, including the costs of depositions, fees for court reporters and transcripts); Papas v. Hanlon, 849 F.2d 702 703-04 (1st Cir.1988) (affirming an order requiring litigants proceeding in forma pauperis to pay stenographer's fees); Barcelo v. Brown, 655 F.2d 458, 462 (1st Cir.1981) (in forma pauperis statute does not authorize a district court to order payment of transcripts).
Accordingly, THE COURT HEREBY ORDERS that:
1. Plaintiff's request to conduct oral depositions is DENIED without prejudice;
2. The Clerk is directed to send Plaintiff a copy of Rules 28, 30, 31, and 45 of the Federal Rules of Civil Procedure; and
3. Should Plaintiff wish to conduct depositions, he must begin by following the instructions written in this order.
IT IS SO ORDERED.
Gary S. Austin
UNITED STATES MAGISTRATE JUDGE