United States District Court, D. Connecticut
ORDER ON PLAINTIFF'S LETTER MOTION [Doc.
SARAH A. L. MERRIAM, UNITED STATES MAGISTRATE JUDGE
February 15, 2019, the self-represented plaintiff Santiago
Gomez (“plaintiff”) filed a “letter
motion” requesting: (1) permission to serve written
deposition questions on each of the defendants; (2) that the
Clerk's Office issue a subpoena permitting
plaintiff's brother to inspect certain toilets in the New
Haven Correctional Center (“NHCC”); and (3) that
the Court schedule a conference to address “a discovery
demand that [plaintiff] anticipate will breach the safety and
security of the” NHCC. Doc. #49 at 1 (sic). On February
25, 2019, Judge Janet C. Hall referred plaintiff's letter
motion to the undersigned. [Doc. #50]. For the reasons that
follow, plaintiff's letter motion [Doc.
#49] is DENIED.
Court presumes familiarity with the factual background of
this matter, which is set forth at length in Judge Hall's
Initial Review Order of plaintiff's Amended Complaint.
See Doc. #18.
the referral of Judge Hall, on January 16, 2019, the
undersigned held a telephonic status conference with
plaintiff and counsel for defendants. [Docs. #37, #39].
During that conference, the Court reviewed the status of
discovery with plaintiff and counsel for defendants. See Doc.
#37 at 1-2. The Court also set two interim deadlines: first,
that any written discovery be issued such that it is received
by the opposing party on or before March 1, 2019; and second,
that any requests to take depositions be filed with the Court
on or before March 29, 2019. See Id. at 2. Discovery
in this matter is scheduled to close on May 17, 2019. See
Doc. #18 at 22; see also Doc. #37 at 2.
first “request[s] permission to serve written
Deposition questions upon defendants.” Doc. #49 at
1 (sic). “A party may, by written questions, depose any
person, including a party, without leave of court except ...
if the parties have not stipulated to the deposition and
the deposition would result in more than 10 depositions being
taken under this rule[.]” Fed.R.Civ.P. 31(a)(1),
(a)(2)(A)(i). Presumably, plaintiff seeks to serve written
deposition questions on each of the remaining sixteen
defendants and thus seeks leave of Court to do so.
mandates that “[w]ithin the United States ..., a
deposition must be taken before: (A) an officer authorized to
administer oaths either by federal law or by the law in the
place of examination; or (B) a person appointed by the court
where the action is pending to administer oaths and take
testimony.” Fed.R.Civ.P. 28(a)(1)(A)-(B). Rule 31,
which governs depositions by written questions, contemplates
that a deposition by written questions shall also occur
before such an officer. See Fed.R.Civ.P. 31(a)(3) (“A
party who wants to depose a person by written questions must
serve them on every other party, with a notice stating, if
known, the deponent's name and address. ... The notice
must also state the name or descriptive title and the address
of the officer before whom the deposition will be
taken.”). Indeed, Rule 31(b) outlines that
officer's duties when presiding over the deposition by
written questions, including that the officer: “(1)
take the deponent's testimony in response to the
questions; (2) prepare and certify the deposition; and (3)
send it to the party, attaching a copy of the questions and
of the notice.” Fed.R.Civ.P. 31(b)(1)-(3). See also
Sherrod v. Breitbart, 304 F.R.D. 73, 77 n.3 (D.D.C.
2014) (Deposition by written questions does not
“eliminate the need for [the deponent] to appear,
because ‘Rule 31 clearly contemplates a witness's
personal presence at a deposition, where the witness delivers
his or her testimony orally. It does not contemplate written
responses to written deposition questions.'”
(quoting Kendrick v. Bowen, No. 83CV3175, 1989 WL
39012, at *1 n.2 (D.D.C. Apr. 13, 1989))).
has not identified an officer who will administer the oath or
who will proceed in accordance with Rule 31(b). Nor has
plaintiff, an incarcerated individual who is proceeding in
forma pauperis, see Doc. #8, stated whether he has
the funds necessary to pay for that officer's services.
Until plaintiff identifies an appropriate officer, and
demonstrates an ability to pay for that officer's
services, the Court will not permit plaintiff to proceed by
written deposition. See, e.g., Braham v. Lantz, No.
3:08CV1564(DFM), 2011 WL 4809032, at *1 (D. Conn. Oct.
11, 2011) (Self-represented inmate's motion for leave to
conduct depositions denied where, inter alia, “[h]e has
not explained how he would fund the expenses associated with
plaintiff's request to proceed by written deposition as
to each of the sixteen defendants is DENIED,
without prejudice. If plaintiff chooses to
re-file his motion for leave to proceed by written
deposition, he must set forth the name of the officer who
will administer the oath, the estimated cost of the written
depositions, and how plaintiff intends to pay for those
Request for Subpoena
next requests that the Clerk of the Court issue a subpoena so
his brother may inspect and take a video of “the
operation of the Toilets in the B-block and D-Block along
with the 22 Rm in S-Unit” in the NHCC. Doc. #49 at 1
(sic). The Court DENIES this request on two
video footage taken inside a correctional facility by a third
party implicates obvious safety and security concerns.
See, e.g., Gardner v. Univ. of Conn. Health Ctr.,
No. 3:12CV1168(CSH), 2013 WL 6073430, at *2 (D. Conn. Nov.
18, 2013) (“Federal courts have repeatedly found good
cause to limit ...