Opinion
1:20-cv-00840-DAD-SAB (PC)
07-06-2021
SANDRO S. PEREZ, Plaintiff, v. A. SMITH, et al., Defendants.
ORDER GRANTING MOTION FOR RELIEF FROM REQUIREMENT UNDER FEDERAL RULE OF CIVIL PROCEDURE 28'S REQUIREMENT TO HAVE COURT REPORTER PHYSICALLY PRESENT (ECF No. 38)
Plaintiff Sandro S. Perez is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On June 21, 2021, the Defendants filed an ex parte application to conduct a deposition of Plaintiff with the court reporter appearing remotely, due to COVID-19 precautions. (ECF No. 38.) “The expression ‘ex parte motion' is a term of art. In its pure form it means a request a party makes to the court without any notice to the other side.” Mission Power Eng'g Co. v. Cont'l Cas. Co., 883 F.Supp. 488, 490 (C.D. Cal. 1995). The Court notes the Defendants' filing was served on Plaintiff by U.S. mail. (ECF No. 38-3.) The Court shall construe the application as a motion.
The Court finds good cause to grant the motion pursuant to Federal Rules of Civil Procedure 28 and 30. However, while the filing indicates the “deposition had to be carefully scheduled in order to accommodate the deponent's institution and court reporting agency's social distancing requirements, ” (ECF No. 38-1 at 1), the Court notes the filing does not appear to contain the date of the noticed deposition. It is thus not clear how long Plaintiff would have had to file any opposition or objection to the instant motion. If the Court receives any objection or opposition to the motion prior to the deposition, the Court may review and entertain such, but does not foresee any basis to overrule the granting of the motion herein, given the needs of the court report and the facility due to COVID-19 protocols.
The Defendants shall further be ordered to ensure the video system or other protocols are sufficiently in place so that ensure Plaintiff is able to view any exhibits during the deposition.
Accordingly IT IS HEREBY ORDERED that:
1. Defendants' ex parte motion (ECF No. 38) is GRANTED;
2. The court reporter is not required to be in the same physical location as Plaintiff during the deposition; and
3. Defendant shall ensure sufficient procedures are set in place to allow Plaintiff can view any exhibits presented during the deposition.
IT IS SO ORDERED.