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Graves v. Williams

January 14, 2009


The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge


Plaintiff, a state prisoner proceeding pro se and in forma pauperis, seeks relief pursuant to 42 U.S.C. § 1983. Pursuant to an order of this court (Doc. 81), plaintiff was allowed an opportunity to submit deposition questions to his treating physicians and defendants were allowed an opportunity to file any objections they may have to those questions. Defendants were further provided an opportunity to submit any questions they may have for the doctors. Plaintiff timely filed his requests with proposed questions for Drs. Allen, Pepper and Tanji (Docs. 82, 84, 90, 99, 100). The defendants have filed objections (Docs. 86, 87, 92, 93, 96, 103, 104, 105, 106) to almost all of plaintiff's proposed questions. Plaintiff filed a response regarding objections to the proposed questions to Dr. Allen (Doc. 97). On December 15, 2008, the defendants were provided an opportunity to also submit questions for plaintiff's doctors. No questions from the defendants have been received.

The defendants object to the questions plaintiff has offered on one or more of the following grounds: they are vague and ambiguous, are speculative and lack foundation, are incomplete hypotheticals or call for a narrative, are irrelevant or overbroad, and/or they are leading and compound questions. Many of plaintiff's questions are as the defendants state. However, given the situation in this case, plaintiff, as an incarcerated pro se litigant, will be allowed some leeway in his questioning. Once the responses to plaintiff's questions are received, the defendants may further object to the use of the deposition testimony through other means, i.e., motions in limine, prior to trial.

Plaintiff's questions are compound, somewhat vague, and oftentimes speculative.

However, as these depositions are being conducted by written examination, the compound questions can be understood and answered easier than if the examination was being conducted orally. The doctors will be requested to answer to the best of their abilities. If the doctors do not understand the questions being asked, they can state as much in their responses. Similarly, if the doctors do not have the knowledge or information plaintiff seeks, they can so state in their answers.

With the exception to question 12 asked of Dr. Allen (Doc. 84), all objections are overruled and the court will allow the questions to be asked. As to plaintiff's question number 12 to Dr. Allen, this question is vague, ambiguous, and plaintiff fails to actually pose a question. It appears this is an incomplete hypothetical which the court will not require Dr. Allen to answer. The defendants' objections to Dr. Allen's question 12 is sustained. The court now directs the Clerk of the Court to forward a copy of the questions to each deponent as follows: Dr. Allen (Docs. 84); Dr. Pepper (Doc. 90); and Dr. Tanji (Doc. 100). The addresses plaintiff has provided are as follows:

Dr. Jeffrey L. Tanji

U.C. Davis Regional Outreach Center of Heath & Technology Department of Sports Medicine 2500 Stockton Blvd., Ste 3300 Sacramento, CA 95817-1415 Dr. Walter H. Pepper PO Box 610 Tracy, CA 95378 Dr. Robert Allen University of California Davis Health System 4860 Y Street, Ste. 1700 Sacramento, CA 95817

The Clerk of the Court shall also send each deponent a subpoena issued by the court and a copy of this order. Each deponent shall write out the answers to the questions for which objections have not been sustained*fn1 , swear to their truthfulness, and return them to the court within 30 days of the date of this order. The clerk shall then forward copies of the answers to the parties.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Plaintiff's requests to depose Drs. Allen, Pepper and Tanji by written questions (Docs. 82, 90, 99) are granted;

2. The Clerk of the Court is directed to forward a subpoena, a copy of this order, and a copy of the written deposition questions (Docs. 84, 90, 100) to the appropriate deponent as outlined above, by U.S. Certified Mail;

2. Drs. Allen, Pepper and Tanji shall return their answers to the questions, pursuant to subpoena, with the attached Notice of Submission to the court no later than ...

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