Free Order on Motion for Miscellaneous Relief - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Timothy Lee Ward, Plaintiff -vsCarr, et al., Defendants CV-03-2159-PHX-ROS (JRI) ORDER

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

MOTIONS RE DEPOSITIONS Under consideration is Plaintiff's Motion for Leave to Take Carr's Deposition and Motion for Appointment of Court Reporter, filed February 4, 2008 (#116), and Plaintiff's Motion for Leave to Take Stewart's Deposition and Motion for Appointment of Court Reporter, filed February 13, 2008 (#119). Plaintiff seeks leave to depose these two defendants on the basis that the limited written discovery available to him is inadequate to develop his case. Plaintiff notes that he lacks funds to pay a court reporter, but expresses a willingness for payments to be deducted from his inmate trust account. Defendants have not filed timely responses to these motions. Plaintiff provides little information about the nature of the inquiries he feels cannot be pursued with written discovery. Given the practical complexities involved with a deposition by an inmate, a greater showing of a need for depositions is required to show that they are not unduly burdensome. Moreover, Plaintiff is unprepared to bear the expenses of such depositions, i.e. court reporters fees, transcription costs, etc.. Plaintiff is required under the Federal Rules of Civil Procedure to arrange and pay for the officiator and the means of recording a deposition. Fed. R. Civ. P. 30(b)(2). Plaintiff points to no authority for the Court to undertake, or to require Defendants to undertake, such expenses. Plaintiff's in forma pauperis status does not
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authorize such cost shifting. The Court cannot appoint a court reporter or other official without compensation.

MOTION FOR ADDITIONAL DISCOVERY Also under consideration is Plaintiff's Motion for Clarification and Motion to Expand Limits on Discovery, filed February 29, 2008 (#123). Plaintiff reports that the parties have disparate opinions about the nature of the Court's limitation on the number of requests for production (i.e. whether it is 15 per defendant, or in total), and seeks clarification. Plaintiff further seeks to expand those limits to serve on Defendants an additional 12 requests for production. Defendants have responded (#126), indicating that Plaintiff served his original requests for production on Defendants Carr and Stewart jointly, which included 18 separate categories. They express confusion over whether Plaintiff's requested expansion of 35 requests is additional or cumulative in number. While the Court's scheduling order authorizes 15 requests for production per responding party, Plaintiff chose to direct his requests jointly, resulting in exhaustion of his allocation. Nonetheless, as Defendants propose no objections to the specific proposed additional requests, and they appear reasonable in light of the matters at issue, the Court will permit Plaintiff to serve the additional requests appended to his motion. Defendants suggest an expansion of the dispositive motion deadline if an expansion of discovery is permitted. The Court sees no correlation between additional discovery requests by Plaintiff and any need for additional time for dispositive motion preparation by Defendants. Plaintiff does not request such an extension. Accordingly, no such extension will be made.

MOTION FOR DISCOVERY CONFERENCE Also under consideration is Plaintiff's Motion for Informal Telephonic Conference, filed February 29, 2008 (#124). Plaintiff seeks a conference to resolve ongoing disputes
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concerning his discovery requests and Defendants' responses. Defendants have responded (#127) concurring in the request. The Court will grant the request, but delay the scheduling of the conference until the parties have had an opportunity to complete the additional discovery authorized herein.

MOTION FOR LEAVE TO FILE RESPONSE Finally, under consideration is Defendant's Motion for Leave to File Untimely Responses, filed March 13, 2008 (#128). Although briefing on the motion is not complete, the Court finds that further briefing is not necessary to a fair adjudication of the motion. Defendants seek leave to file their lodged proposed response (#129) to Plaintiff's motions to depose Defendants Carr and Stewart (#116 and 119). Defendants relate that their response is delinquent due to a calendaring mishap. Plaintiff opposes (#130) the motion, arguing that a clerical error does not justify the delay, and Plaintiff will be prejudiced as result of the impingement on the schedule fixed in this matter. In light of the denial of the underlying motions, Defendants' request is moot.

IT IS THEREFORE ORDERED that Plaintiff's Motion for Leave to Take Carr's Deposition, filed February 4, 2008 (#116) is DENIED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that Plaintiff's Motion for Appointment of Court Reporter, filed February 4, 2008 (#116) is DENIED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that Plaintiff's Motion for Leave to Take Stewart's Deposition, filed February 13, 2008 (#119) is DENIED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that Plaintiff's Motion for Appointment of Court Reporter, filed February 13, 2008 (#119) is DENIED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that Plaintiff's Motion for Clarification, filed February 29, 2008 (#123) is GRANTED to the extent of the explanation given herein. IT IS FURTHER ORDERED that Plaintiff's Motion to Expand Limits on Discovery, filed February 29, 2008 (#123) is GRANTED to the extent that Plaintiff may
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serve on Defendants Carr and Stewart the requests for production attached to said motion. IT IS FURTHER ORDERED that Plaintiff's Motion for Informal Telephonic Conference, filed February 29, 2008 (#124) is GRANTED. IT IS FURTHER ORDERED that within fifteen days of the service of their responses to Plaintiff's additional requests for production authorized herein, Defendants shall contact Plaintiff in person or by telephone to discuss any remaining discovery disputes. IT IS FURTHER ORDERED that within ten days of the completion of such conference among the parties, Plaintiff shall file a notice advising the Court of any additional unresolved discovery disputes, and that the discovery conference is ready to be set. The Court will thereafter set a time for the discovery conference. IT IS FURTHER ORDERED that Defendant's Motion for Leave to File Untimely Responses, filed March 13, 2008 (#128) is DENIED as moot.

DATED: March 26, 2008
S:\Drafts\OutBox\03-2159-116o Order 08 03 14 re MDepos MDepos MClarif MExpand MLeave.wpd

_____________________________________ JAY R. IRWIN United States Magistrate Judge

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