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Garrison S. Johnson v. John Dovey

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


February 9, 2011

GARRISON S. JOHNSON,
PLAINTIFF,
v.
JOHN DOVEY, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Dennis L. United States Magistrate Judge

ORDER DENYING PLAINTIFF LEAVE TO TAKE DEFENDANTS' DEPOSITION BY WRITTEN QUESTION AS UNNECESSARY (DOC. 74)

ORDER DENYING MOTION TO COMPEL AS MOOT (DOC. 92)

Plaintiff Garrison S. Johnson ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding against Defendants Dunnahoe, V. Ybarra, Cunningham, Medrano, Holguin, Valasquez, G. Ybarra, Curliss, J. Gonzales, and K. Powell. Pending before the Court is Plaintiff's motion to take Defendants' deposition by written question, filed June 28, 2010. Doc. 74. Defendants filed an opposition to Plaintiff's motion on July 20, 2010. Doc. 75. Also pending is Plaintiff's motion to compel, filed September 14, 2010, seeking to compel responses to Plaintiff's deposition by written questions. Doc. 92.

Plaintiff requests that the Court grant Plaintiff leave to take each Defendants' deposition by written question, pursuant to Rule 31(a)(2) of the Federal Rules of Civil Procedure.

Plaintiff's motion is denied. It is unclear whether Plaintiff would require the Court's leave to depose Defendants by written question. A party requires the Court's leave "if the parties have not stipulated to the deposition and: (i) the deposition would result in more than depositions being taken under this rule or Rule 30 . . .; (ii) the deponent has already been deposed in the case; or (iii) the party seeks to take a deposition before the time specified in Rule 26(d)."

It thus appears that leave of the Court was unnecessary, as neither of these three factors was met. Defendants indicate that they do not stipulate to deposition by written question. See Kelly A. Yokley Decl., Doc. 75. However, there are only ten Defendants in this action, none of the Defendants have been deposed, and meeting and conferring was not required in this action, rendering Rule 26(d)'s timing issues inapplicable.*fn1 Leave of the Court is required only if the parties do not stipulate and one of the above three situations occurs. Thus, Plaintiff's motion for leave of the Court is denied as unnecessary.

On September 14, 2010, Plaintiff filed a motion to compel, seeking responses from Defendants to Plaintiff's deposition by written question. Doc. 92. Plaintiff's motion to compel is denied. Plaintiff did not use proper procedure. Pursuant to Rule 31(b), Plaintiff is required to deliver to the deposition officer a copy of the questions to be served and the notice. Fed. R. Civ. P. 31(b). Plaintiff's motion to compel, filed September 14, 2010, indicates that Plaintiff merely served his written questions on Defendants' counsel directly. See Doc. 92. There is no deposition officer listed anywhere. That is improper procedure for the taking of deposition by written question.

Plaintiff may have confused the procedure for deposition by written question with the procedure for propounding interrogatories pursuant to Fed. R. Civ. P. 33. Plaintiff may propound interrogatories to any defendant by serving them on defendants' counsel of record.

Accordingly, it is HEREBY ORDERED that Plaintiff's motion for leave of the Court to take deposition by written question, filed June 28, 2010, and motion to compel, filed September 14, 2010, are DENIED.

IT IS SO ORDERED.


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