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Barnett v. Norman

August 10, 2010


The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER RE MOTIONS (Docs. 58, 66, 67)

Plaintiff Troas V. Barnett ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Before the Court are three motions. Defendants filed a motion requesting leave to take Plaintiff's deposition via a video conference on July 19, 2010. (Doc. #58.) Plaintiff filed two motions on August 2, 2010. Plaintiff filed a motion to "quash" Defendants' discovery request and a second "discovery request" seeking the last known address for Defendant Martin Gamboa.

I. Discussion

A. Defendants' Motion to Take Deposition Via a Video Conference

On July 19, 2010, Defendants filed a motion requesting leave to conduct Plaintiff's deposition via a video conference. (Doc. #58.) Plaintiff filed objections to Defendants' motion on July 30, 2010. (Doc. #63.)

Defendants request to take Plaintiff's deposition via a video conference because it would be more expeditious and cost effective to conduct the deposition remotely. Plaintiff's opposition does not object to the means of conducting the deposition, but instead objects to the deposition itself.

Plaintiff's opposition sets forth several unsupported boilerplate objections to the proposed deposition. Plaintiff claims that a deposition would be unreasonably cumulative or duplicative because Defendants can obtain the information they seek by more convenient methods such as interrogatories or requests for admission. However, written interrogatories and requests for admission are not adequate substitutes for conducting a deposition. As the Ninth Circuit aptly noted:

[w]ritten interrogatories are rarely, if ever, an adequate substitute for a deposition . . . . Only by examining a witness live can a lawyer use the skills of his trade to plumb the depths of a witness' recollection, using to advantage not only what a witness may have admitted in answering interrogatories, but also any new tidbits that usually come out in the course of answering carefully framed and pin-pointed deposition questions. Written interrogatories are not designed for that purpose; pointed questions at deposition are the only effective way to discover facts bottled up in a witness' recollection, particularly when the witness is . . . hostile.

Shoen v. Shoen, 5 F.3d 1289, 1297 (9th Cir. 1993).

Plaintiff claims that the information Defendants are seeking can be obtained by less burdensome and less expensive means. Plaintiff's objection is unavailing. First, Plaintiff has not identified any expense that he must pay in order for Defendants to conduct the deposition. Plaintiff has offered no explanation as to how the deposition is overly burdensome for him.

Plaintiff requests a protective order pursuant to Federal Rule of Civil Procedure 26(c) to prohibit Defendants from deposing him. The purpose of a protective order under Rule 26(c) is to protect a party "from annoyance, embarrassment, oppression, or undue burden or expense." Federal Rule of Civil Procedure 26(c)(1). "The relevant standard for purposes of Rule 26(c) is whether good cause exists to protect the information from being disclosed to the public by balancing the needs for discovery against the need for confidentiality." Pintos v. Pacific Creditors Ass'n, 605 F.3d 665, 678 (9th Cir. 2010) (internal quotations and citations omitted). Plaintiff has failed to present a compelling argument that any of these factors apply in this situation.

Plaintiff has not identified any confidential or private information that merits protection. Plaintiff's objection to the proposed deposition is nothing more than a general complaint of having to be deposed. However, Plaintiff brought Defendants into court by accusing them of violating his constitutional rights. Defendants are entitled to a fair opportunity to defend against Plaintiff's allegations. Given the nature of Plaintiff's allegations, a deposition of Plaintiff would likely be a crucial procedure for formulating an effective defense. Plaintiff argues that Defendants are "sufficiently . . . on notice" of the injuries Plaintiff suffered through the allegations made in his complaint. However, that is not sufficient to formulate a complete defense against Plaintiff's allegations. Defendants may be able to obtain information from Plaintiff's deposition that Plaintiff did not allege in his complaint. There is nothing in the record to suggest that the deposition of Plaintiff is being conducted for an improper purpose. The Court will deny Plaintiff's request for a protective order.

Plaintiff next argues that Defendants are attempting to conduct a deposition before the time frame specified in Federal Rule of Civil Procedure 26(d), which states that "[a] party may not seek discovery from any source before the parties have conferred as required by Rule 26(f)." Apparently, Plaintiff only read the first half of Rule 26(d). The rule further provides that: ". . . except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B). . ." Under Rule 26(a)(1)(B), "an action brought without an attorney by a person in the custody of the United States, a state, or a state subdivision" is a "proceeding exempted from initial disclosure." Federal Rule of Civil Procedure 26(a)(1)(B)(iv). Rule 26(d) further provides that a Rule 26(f) conference is not a prerequisite for conducting discovery when discovery is "authorized . . . by court order." The Court's July 20, 2010 discovery order expressly permitted the parties to conduct depositions.

Finally, Plaintiff requests that in the event that the Court permits Defendants to depose Plaintiff, the Court should limit the duration of the deposition to 90 minutes. Under Rule 30(d)(1), a deposition is limited to a single day of seven hours, unless otherwise stipulated or ordered by the court. Plaintiff has failed to demonstrate any persuasive reason to shorten the default time limit. Plaintiff's unsupported arguments that the deposition is being conducted for an ...

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