United States District Court, S.D. California
DALLAS BUYERS CLUB, LLC, a Texas limited liability company, Plaintiff,
ORDER DENYING PLAINTIFF'S EX PARTE MOTION FOR
LEAVE TO CONDUCT A DEPOSITION BY WRITTEN QUESTIONS UNDER FRCP
31[ECF NO. 10]
H. BARTICK United States Magistrate Judge.
20, 2016, Plaintiff, Dallas Buyers Club, LLC, filed an Ex
Parte Motion for Leave to Conduct a Deposition by
Written Questions Under Federal Rule of Civil Procedure 31.
(ECF No. 10.) Because Defendant has not been named or served,
no opposition or reply briefs have been filed. For the
reasons discussed below, Plaintiff’s Motion is DENIED.
February 19, 2016, Plaintiff filed a Complaint against Doe, a
subscriber assigned IP address 220.127.116.11
(“Defendant”). (ECF No. 1.) Plaintiff alleges a
single cause of action for direct copyright infringement.
Plaintiff asserts that it is the registered copyright holder
of the motion picture Dallas Buyers Club.
(See ECF No. 1 at ¶¶ 4, 6.) Plaintiff
contends Defendant used the BitTorrent file distribution
network to copy and distribute Plaintiff’s copyrighted
work through the Internet without Plaintiff’s
permission. (ECF No. 1 at ¶ 35.) On March 11, 2016, the
Court permitted Plaintiff to serve a Rule 45 subpoena on Cox
Communications to learn the identity of the subscriber
assigned to Defendant’s IP address. (ECF No. 7.)
April 28, 2016, Cox Communications provided Plaintiff the
name and physical address of the subscriber. (ECF No. 10-1 at
4.) Thereafter, Plaintiff sent a letter to the subscriber,
Cara Greico, requesting that she voluntarily cooperate with
Plaintiff to identify the infringer, and inviting her to
contact Plaintiff’s counsel with questions. (ECF No.
10-5.) In response, On May 5, 2016, an individual identifying
himself as the subscriber’s husband, Austin Morris,
telephoned Plaintiff’s counsel. (ECF No. 10-8 at ¶
2.) Mr. Morris requested information about how the IP address
was tracked and located, and also if Plaintiff could provide
the media access control address (MAC address) of the
computer that was tracked. (Id. at ¶ 3.) Mr.
Morris indicated he would not assist Plaintiff’s
counsel with the investigation unless counsel provided the
requested information. (Id. at ¶ 4.)
9, 2016, Plaintiff sent a second letter to the subscriber.
(ECF No. 10-6.) Plaintiff contends it has not received a
response to the letter.
Plaintiff brings the instant motion seeking permission to
depose the subscriber by written questions under Rule 31.
(ECF No. 10.) Plaintiff acknowledges that the Court has
previously denied oral depositions of third parties under
Rule 45. Plaintiff argues that Rule 31 provides is a less
burdensome means for Plaintiff to solicit information than by
use of depositions under Rule 45.
Rule of Civil Procedure 31 permits depositions of any person
by written questions instead of by oral examination.
Fed.R.Civ.P. 31(a). Based on the Rule’s title, it may
sound like a deposition by written questions is a less
burdensome way to obtain deposition discovery. However, once
the Rule is examined, it is clear that depositions by written
questions “entail more than mailing questions to the
deponents and awaiting their written response.”
Dasenbrook v. Enenmoh, 2015 WL 1889069, *2 (E.D.
Cal. April 24, 2015). Rule 31 requires the party taking the
deposition to deliver the written questions to a deposition
officer. Fed.R.Civ.P. 31(b). The deposition then proceeds in
a manner similar to oral depositions. Id.
(incorporating Rule 30(c), (e), and (f)). The deponent is put
under oath, and then the deposition officer “must ask
the deponent [the written] questions and record the answers
verbatim.” Fed.R.Civ.P. 30(c)(3). Following the
deposition, a transcript is prepared in the same manner as an
oral deposition. Fed.R.Civ.P. 31(b)(2)-(3).
Plaintiffs contention that a deposition by written questions
is appropriate here because it is a less intrusive
alternative is without merit. In addition, the Court notes
that Plaintiffs counsel has previously abused the procedure
under Rule 31. See Cobbler Nevada LLC v. Doe
18.104.22.168, 15cv2729-GPC (JMA), ECF No. 27 (S.D. Cal.
July 5, 2016) (denying motion to compel responses to
deposition by written questions where counsel attempted to
use Rule 31 in a manner that was functionally similar to
interrogatories, which is improper and not permitted by the
federal rules). Therefore, the Court declines to permit
Plaintiff to pursue a deposition by written questions, which
if the Rule were correctly followed, would require
essentially the same burden on the third party as an oral
deposition. Further, in this case, the Court notes that the
subscriber’s husband responded to Plaintiffs first
letter and indicated a willingness to cooperate if Plaintiff
would provide some additional information about how Plaintiff
discovered the alleged infringement. In the Court’s
opinion, the subscriber’s response was not
unreasonable. However, it appears Plaintiff chose not to
address to the subscriber’s questions, thereby
foreclosing an available avenue of investigation.
reasons set forth above, Plaintiffs Ex Parte Motion