The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
Plaintiff is a California prisoner proceeding pro se with an action for violation of civil rights under 42 U.S.C. § 1983. Defendant is a Correctional Officer at California State Prison, Sacramento. This action is proceeding on a claim arising under the Eighth Amendment.
In the court's April 5, 2012 discovery and scheduling order, the parties were informed that they could conduct discovery until July 27, 2012. On June 19, 2012, defendant filed a motion requesting permission to depose plaintiff by video-conference. That request was granted on June 20, 2012. That same day, counsel for defendant sent plaintiff notice that he would be deposing plaintiff on July 19, 2012.
On July 19, 2012, counsel for defendant, in Sacramento, made contact with plaintiff via video-conferencing. Plaintiff was located at Salinas Valley State Prison in Soledad. Shortly after contact was made and after plaintiff was sworn in, plaintiff informed counsel for defendant that he refused to be deposed because the court had never signed the proposed order submitted by defendant with his motion requesting permission to depose plaintiff via video-conference. Counsel for defendant informed plaintiff that the court had signed the proposed order. Plaintiff still refused to be deposed. In light of these facts, defendant moves the court for an order compelling plaintiff to sit for deposition and for an award of $1064.00 for expenses incurred by defendant in bringing the motion to compel.
In response to the motion, plaintiff asserts the court's June 20, 2012 order granting defendant's request to depose plaintiff by video-conference was never served on him. However, court records indicate that it was served and it has not been returned to the court by the U.S. Postal Service. Plaintiff also asserts that he interpreted defendant's serving the proposed order on plaintiff, before the court signed it, as an attempt by defendant to mislead plaintiff into believing the order had already been signed. However, counsel's proposed order was clearly labeled "[PROPOSED] ORDER."
In light of everything before the court, the court will order plaintiff to sit for deposition, by video-conference if defendant prefers, within thirty days. If plaintiff refuses to be deposed, he will be sanctioned, possibly with dismissal of this action. The court will also extend the deadline established in the court's April 5, 2012 scheduling order for the filing of pretrial motions.
Under Rule 37(a)(5)(A) the court must award a party any costs, including attorney's fees, associated with bringing a successful motion to compel unless the conduct of the party opposing the motion was substantially justified or an award is otherwise unjust. The court finds that an award under Rule 37(a)(5)(A) is warranted. As indicated above, court records indicate plaintiff was properly served with the June 20, 2012 order. Also, plaintiff terminating his deposition after counsel for defendant also indicated that the order permitting video-deposition had been granted was not reasonable especially considering plaintiff has put forward no objection, valid or otherwise, to being deposed by video-conference or to the timing of the deposition. Plaintiff has not put forward any justification for his failure to cooperate with defense counsel in the taking of his deposition which amounted to a waste of time for counsel and the court.
Good cause appearing, IT IS HEREBY ORDERED that:
1. Defendant's July 24, 2012 motion to compel is granted.
2. Defendant may depose plaintiff via video-conference within thirty days.
3. Defendant's request for an award of fees and expenses in the amount $1064.00 payable by plaintiff is granted.
4. If plaintiff refuses to be deposed a second time, further sanctions will be issued and this action may be dismissed.
5. The pretrial motion filing deadline established in the court's April 5, 2012 scheduling order is ...