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.
6, 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 18.104.22.168
(“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.)
March 4, 2016, the Court permitted Plaintiff to serve a Rule
45 subpoena on Cox Communications (“Cox”) to
learn the identity of the subscriber assigned to
Defendant’s IP address. (ECF No. 7.)
April 21, 2016, Cox provided Plaintiff with the name and
physical address of the subscriber. (ECF No. 10-1 at 4.) A
few days before Plaintiff received the information from Cox,
an individual named Westly, who identified himself as the
subscriber Ruby Clont’s son, telephoned
Plaintiff’s counsel. (ECF No. 10-8 at ¶ 2.) Westly
indicated his mother had received a notice of copyright
infringement from Cox,  and wanted to know why she had received
it. (Id. at ¶ 3.) Plaintiff’s counsel
declined to speak with Westly because he was not the
subscriber. (Id.) Westly requested counsel to
contact his mother, and provided a telephone number.
(Id. at ¶ 4.) Thereafter, Plaintiff’s
counsel called Ruby Clont. (Id. at ¶ 5.)
Counsel informed her that Cox had not yet provided Plaintiff
with the subscriber’s identity, but that once he
received the information, he would contact her.
(Id.) Ms. Clont informed Plaintiff’s counsel
that only her husband and son had access to the internet
services provided by Cox, provided demographic information
regarding her family, and indicated that Cox had contacted
her about infringing activity before, but that when she
informed them it was not her, no further action was taken.
(Id. at 6-8.)
April 21, 2016, Plaintiff sent a letter to Ms. Clont
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.) On
May 18, 2016, Plaintiff sent a second letter to the
subscriber. (ECF No. 10-6.) Plaintiff contends it has not
received a response to the letters.
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).
Plaintiff’s 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 Plaintiff’s counsel has previously abused the
procedure under Rule 31. See Cobbler Nevada LLC v. Doe
22.214.171.124, 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 son reached out to Plaintiffs counsel
after receiving notice that the Rule 45 subpoena had been
served on Cox, and gave counsel the subscriber’s
telephone number. Counsel then contacted the subscriber, who
was apparently willing to discuss the alleged infringement.
However, counsel elected not to ask her about the information
it now seeks in the proposed Rule 31 questions because
counsel was awaiting a response from Cox, thereby passing up
an opportunity to investigate its claims.
reasons set forth above, Plaintiff’s Ex Parte