Opinion
No. 1:06-cv-00136 ALA (P).
October 1, 2008
ORDER
Patrick Brady ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. The matter before this Court concerns the failure of five of the seven non-party deponents to respond to Plaintiff's written deposition questions which were filed pursuant to Rule 31 of the Federal Rules of Civil Procedure. Rule 31(a)(1) holds in pertinent part that
[a] party may, by written questions, depose any person, including a party, without leave of court except as provided in Rule 31(a)(2). The deponent's attendance may be compelled by subpoena under Rule 45.
On August 6, 2008, non-party deponent, Dr. K. Knight, returned his answers to Plaintiff's deposition questions. (Doc. 78). On August 27, 2008 this Court ordered that the subpoenas (Doc. 30) and written deposition questions (Doc. 85-90) be re-served on the following non-party deponents: (1) Psych Tech Lavine (Doc. 85); (2) Dr. Puljol (Doc. 86); (3) Dr. Barda (Doc. 87); (4) Dr. Renee Kanan (Docs. 88, 90); and, (5) Psych Tech Gonzales (Doc. 89). The Clerk for the Eastern District of California, Becknal, R., entered in the Docket that "Service by Mail" of this Court's orders was completed on August 27, 2008. On September 19, 2008, this Court further ordered that Dr. McGuiness be re-served a copy of his subpoena and written deposition questions. (Docs. 30, 92). As of the date of this order, only Drs. K. Knight and Renee Kanan have filed their answer. (Docs. 78, 91).
The original subpoenas dated August 2, 2007 (Doc. 30), commanded the non-party deponents to appear at Corcoran State Prison, 4001 Kings Ave., Corcoran, CA 93212, within 30 days from the date of service. These subpoenas were re-served on five of the non-party deponents on August 27, 2008. The 30 days within which to comply with these subpoenas have since passed. Plaintiff has previously requested this Court's intervention pursuant to Rule 37 of the Federal Rules of Civil Procedure which states that
[a] party seeking discovery may move for an order compelling an answer, designation, production, or inspection. This motion may be made if:
(i) a deponent fails to answer a question asked under Rules 30 or 31.
This Court may on its own motion intervene for the purpose of expediting the discovery process. Failure to comply with a subpoena without adequate excuse is a contempt of court. Fed.R.Civ.P. 45(e). See, e.g., Brewer v. Salyer, No. 1:06CV1324, 2007 U.S. Dist. LEXIS 85150, at *5 (E.D. Cal. Nov. 7, 2007).
This Court orders Psych Tech Lavine, Dr. Puljol, Dr. Barda, and Psych Tech Gonzales, who have yet to respond to their written deposition questions, to respond to this order to show cause on or before October 9, 2008 explaining why they should not be held in contempt for failure to respond to the subpoena pursuant to Federal Rule of Civil Procedure 45(e). Rule 45(e) holds that
[t]he issuing court may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena. A nonparty's failure to obey must be excused if the subpoena purports to require the nonparty to attend or produce at a place outside the limits of Rule 45(c)(3)(A)(ii).
The non-party deponent, Dr. McGuiness, who was re-served on September 19, 2008 is ordered to respond to the subpoena and written deposition questions on or before October 22, 2008.
Accordingly, IT IS HEREBY ORDERED that:
1. The named non-party deponents respond to this Order to Show Cause on or before October 9, 2008, or, in the alternative, that they respond to the subpoena and written deposition questions on or before October 9, 2008.
2. Dr. McGuiness respond to the subpoena and written deposition questions on or before October 22, 2008.