Opinion
06 Civ. 14420 (RWS).
October 11, 2007
MEMORANDUM OPINION AND ORDER
Plaintiff Michael Myers ("Plaintiff" or "Myers") has filed, on June 28, 2007, a motion for leave to take oral depositions of three non-parties to this action: Dr. Jacquelyn Levitt, a medical doctor employed at Wende Correctional Facility ("Wende"); Joseph Gullo, an outside audiologist who has conducted hearing tests at Wende; and Christ Zaluski, a teacher and member of the Wende staff. For the reasons stated below, the motion will be denied.
Defendant Ann Andzel ("Andzel") has argued that the motion should be denied because the taking of depositions by Plaintiff would be disruptive to the prison environment and that interrogatories would be a preferable discovery method.
Depositions conducted by pro se, incarcerated litigants are generally disfavored in this District. See, e.g., LaBounty v. Coombe, No. 95 Civ. 2617, 1996 U.S. Dist. LEXIS 645 at *2 (S.D.N.Y. 1996); Espinal v. Coughlin, No. 98 Civ. 2579, 1999 U.S. Dist. LEXIS 18034 at *2-3 (S.D.N.Y. Nov. 22, 1999). Instead, courts typically require such litigants to propound interrogatories to the adverse party. Here, that alternative discovery device is not available since interrogatories may only be served upon parties to an action. Fed.R.Civ.P. 33. "Discovery of non-parties must be conducted by subpoena pursuant to Fed.R.Civ.P. 45." Lehman v. Kornblau, 206 F.R.D. 345, 346 (E.D.N.Y. 2001).
Under Fed.R.Civ.P. 26(b)(2), courts may limit discovery if "the burden or expense of the proposed discovery outweighs its likely benefit." Allowing Plaintiff to depose the two Wende employees and one outside consultant would negatively impact the discipline, morale, and effective functioning of the prison. See Espinal, 1999 U.S. Dist. LEXIS 18034 at *2-3; see also In re Wilkinson, 137 F.3d 911, 915 (6th Cir. 1998).
Plaintiff has failed to establish the benefit of oral depositions. First, Plaintiff has indicated that he would be unable to obtain a proper transcription of the deposition, and there is no authority requiring the Government to pay for such costs. See Espinal, 1999 U.S. Dist. LEXIS 18034 at *4. Second, while interrogatories may not be used, Plaintiff may serve subpoenas upon these non-parties for other forms of discovery under Fed.R.Civ.P. 45. Plaintiff has not demonstrated that he cannot obtain the information sought through these other forms of discovery.
For the reasons set forth above, Plaintiff's motion is denied.
It is so ordered.