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Frank Orr v. Adriana Hernandez

November 22, 2011

FRANK ORR,
PLAINTIFF,
v.
ADRIANA HERNANDEZ, ET AL.,
DEFENDANT.



The opinion of the court was delivered by: Justin L. Quackenbush Senior United States District Judge

ORDER RE: WRITTEN DEPOSITIONS

BEFORE THE COURT is Plaintiff's Request for Deposition Upon Written Questions (ECF No. 98).

Plaintiff is proceeding pro se and in forma pauperis, and in his Section 1983 complaint alleges Defendant Hernandez twice retaliated against him in violation of the First Amendment. On September 23, 2011, the court denied Defendant Hernandez's Motion for Summary Judgment, in part due to the incomplete and inadequate record. As a result, the court granted the parties until January 15, 2012 to conduct additional discovery and until February 15, 2012 to submit dispositive motions.

Plaintiff is now requesting leave to take written depositions from the Defendant and eight non-party witnesses: Captain Arnold, Captain Kaplan, Lt. Sweany, Corrections Officer Norman, Corrections Officer Heath, C.D.W. S. Garcia, C.C.I. Winkler, and Lt. Martin. Defendant opposes the request, citing Plaintiff's failure to identify the deposition officer who will take the depositions and failure to demonstrate an ability to pay the recording fees associated with deposing the nine witnesses. Defendant does make any argument that the deposition questions suggested (see ECF No. 98) will not lead to discoverable evidence.

Fed.R.Civ.P. 31 outlines the procedure for depositions by written questions. It states

(a) When a Deposition May Be Taken.

(1) Without Leave. A party may, by written questions, depose any person, including a party, without leave of court except as provided in Rule 31(a)(2). The deponent's attendance may be compelled by subpoena under Rule 45.

(2) With Leave. A party must obtain leave of court, and the court must grant leave to the extent consistent with Rule 26(b)(2):

(A) if the parties have not stipulated to the deposition and:

(I) the deposition would result in more than 10 depositions being taken under this rule or Rule 30 by the plaintiffs, or by the defendants, or by the third-party defendants;

(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); or (B) if the deponent is confined in prison.

Fed.R.Civ.P. 31(a)(1) and (2).

The individuals Plaintiff wishes to depose do not appear to be people "confined in prison." Therefore, Plaintiff does not require leave of Court to depose the named individuals by written questions. He is permitted to conduct discovery while incarcerated, without leave of the Court, as long as he complies with the Federal Rules of Civil Procedure, the ...


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