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Joshua J. Cantu v. M. Garcia

January 8, 2013

JOSHUA J. CANTU,
PLAINTIFF,
v.
M. GARCIA, ET AL.,
DEFENDANTS.



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

ORDER DENYING PLAINTIFF'S MOTIONS FOR SUBPOENAS AND DEPOSITION BY WRITTEN QUESTIONS Doc. 54, 55, 64, 66 ORDER DENYING PLAINTIFF'S MOTIONS TO COMPEL AND MOTION FOR SANCTIONS Doc. 57, 59, 60 ORDER DENYING PLAINTIFF'S MOTION FOR LEAVE TO SERVE ADDITIONAL INTERROGATORIES Doc. 63

I. Procedural History

On January 15, 2009, Plaintiff Joshua J. Cantu ("Plaintiff"), a state prisoner proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983. On July 26, 2010, Plaintiff filed an amended complaint. On November 29, 2010, the Court found a cognizable Eighth Amendment claim for excessive force against M. Garcia and failure to intervene excessive force against three doe defendants. On January 3, 2012, the Court issued a discovery and scheduling order, setting a deadline to amend pleadings of July 3, 2012, a discovery deadline of September 3, 2012, and a dispositive motion deadline of November 13, 2012. On September 12, 2012, the Court granted Plaintiff's motions to compel responses to discovery and granted his motion to modify the scheduling order. The Court set a revised deadline to amend pleadings of November 13, 2012, a discovery deadline of January 14, 2013, and a dispositive motion deadline of March 14, 2013.

Between September 21, 2012 and December 3, 2012, Plaintiff filed two motions for subpoenas, two motions for deposition by written questions, one motion for sanctions, one motion to compel, one motion to order Defendant to identify employees, and one motion for leave to serve additional interrogatories. On December 12, 2012, Defendant filed an opposition to Plaintiff's motion for leave to file additional interrogatories. This matter is deemed submitted pursuant to Local Rule 230(l).

II. Analysis

A. Motions for Subpoenas Subject to certain requirements, Plaintiff is entitled to the issuance of a subpoena commanding the production of documents or tangible things from a nonparty, and to service of the subpoena by the United States Marshal. Fed. R. Civ. P. 45; 28 U.S.C. § 1915(d).

However, the Court will consider granting such a request only if the documents or tangible things sought from the nonparty are not equally available to Plaintiff and are not obtainable from Defendant through a request for the production of documents or tangible things. Fed. R. Civ. P. 34. If Defendant objects to Plaintiff's discovery request, a motion to compel is the next required step. If the Court rules that the documents or tangible things are discoverable but Defendants do not have care, custody, and control of them, Plaintiff may then seek a subpoena of a nonparty. Alternatively, if the Court rules that the documents are not discoverable, the inquiry ends.

The Court will not issue a subpoena for a nonparty individual without Plaintiff first following the procedure outlined above. Therefore, the Court DENIES Plaintiff's motions for subpoenas.

B. Motions to Conduct Deposition by Written Questions

As for Plaintiff's requests to conduct a deposition under Rule 31, a party may depose any person by written questions. However, where the deponent is incarcerated, the party must obtain the Court's permission to conduct the deposition. Fed. R. Civ. P. 31(a)(2)(B). Unless the parties stipulate otherwise, the party noticing the deposition is required to provide the questions to an "officer," as that term is defined in Rule 28(a), who will take the deponent's responses to the questions, certify them, and send them to the noticing party. Id.; Fed. R. Civ. P. 31(b); 30(b)(5).

Plaintiff has not established that he followed the procedure outlined above to obtain a deposition by written questions. Therefore, the Court DENIES Plaintiff's motions to conduct deposition by written questions.

C. Motion for Sanctions

The Court declines to issue a sanction for non-compliance with the interrogatories and requests for production of documents until after the issuance of an order commanding compliance. SeePennwalt Corp. v. Durand-Wayland, Inc., 708 F.2d 492, 494 (9th Cir. 1983) (finding corporation subject to subpoena could not be sanctioned in ...


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