Opinion
C.A. NO. C-08-273.
March 3, 2009
ORDER GRANTING LEAVE FOR DEPOSITION BY WRITTEN QUESTIONS
Plaintiff is an inmate in the Texas Department of Criminal Justice, Correctional Institutions Division ("TDCJ-CID"), and is currently incarcerated at the Chase Field W6 in Beeville, Texas. Proceeding pro 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. 51). Specifically, he seeks leave to depose Gary Mitchell, #562431, an inmate within the TDCJ-CID. 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). Plaintiff is granted leave to take the deposition of inmate Gary Mitchell. "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). If the parties cannot stipulate, then it is ordered that the law librarian of the unit where Mr. Mitchell 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. 51), is GRANTED consistent with this Order.
ORDERED.