Blackmon v. Kukua

Full title: EUGENE BLACKMON TDCJ-CID #485431 v. WARDEN KUKUA, ET AL

Court: United States District Court, S.D. Texas, Corpus Christi Division

Date published: Feb 25, 2009

C.A. NO. C-08-273 (S.D. Tex. Feb. 25, 2009)

Opinion

C.A. NO. C-08-273.

February 25, 2009

ORDER GRANTING LEAVE FOR DEPOSITION BY WRITTEN QUESTIONS

BRIAN OWSLEY, Magistrate Judge

Plaintiff is an inmate in the Texas Department of Criminal Justice, Correctional Institutions Division, and is currently incarcerated at the Chase Field W6 in Beeville, Texas. Proceedingpro se, he filed a civil rights action pursuant to 42 U.S.C. § 1983. (D.E. 1). Pending is plaintiff's motion for leave to depose a witness by written questions. (D.E. 47). Specifically, he seeks leave to depose Joe Nunez, an inmate at the Garza East Unit. Id.

As an initial matter, the Federal Rules of Civil Procedure require that any party seeking to depose by written questions someone "confined in prison" must first obtain leave of the court. Fed.R.Civ.P. 31(a)(2)(B); accord Whitehurst v. United States, 231 F.R.D. 500, 501 (S.D. Tex. 2005). "Unless the parties stipulate otherwise," deposition by written questions must be conducted before an officer. See Fed.R.Civ.P. 28(a)(1); Fed.R.Civ.P. 31(b). The party serving the deposition must deliver it to the officer. Fed.R.Civ.P. 31(b). Furthermore, the party noticing the deposition has an obligation to notify when the deposition is completed. Fed.R.Civ.P. 31(c).

It appears that plaintiff has already provided Mr. Nunez with the deposition and he has answered the questions. (D.E. 47). This approach does not allow defendants to object to specific questions or pose their own questions to the deponent. Therefore, the deposition by written questions will have to be provided to Mr. Nunez again. If the parties cannot stipulate, then it is ordered that the law librarian of the unit where Mr. Nunez is incarcerated serve as the officer for the deposition by written questions.

Plaintiff must serve a copy of the deposition by written questions on defendants' attorney. Defense counsel will ensure that deponent receives the deposition and that the deposition is completed within thirty days of receipt.

Accordingly, plaintiff's motion for leave to depose a witness by written questions, (D.E. 47), is GRANTED consistent with this Order.

ORDERED