UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION
CASE NO. 1:04CV00152-GCM

JONATHAN L. HENSLEE, )
)
Plaintiff, ) DEFENDANTS’ OPPOSITION TO
) MOTION FOR DEPOSITION OF
vs. ) DEFENDANTS THROUGH
) DEFENDANTS’ LAWYER
SHERRI LEWIS, et al., )
)
Defendants. )
)

1. PLAINTIFF IS NOT ENTITLED TO DEPOSE THE DEFENDANTS UPON

WRITTEN QUESTIONS UNLESS HE SETS UP THE DEPOSITION AND
PAYS FOR IT HIMSELF

This is Defendants’ response to Plaintiff’s filing entitled “Plaintiff’s Motion for

Order of Deposition of Defendants Through Defendants’ Lawyer.” (Doc. 58) The motion

apparently seeks an Order requiring defense counsel to depose his clients on written

questions submitted by Plaintiff as “the best way to handle this deposition.” (Motion, p.

1).

Fed.R.Civ.P. 31 permits the taking of depositions on written questions. However,

“[i]f plaintiff wants to depose defendant on written questions, plaintiff needs to set up

such a deposition, arrange for a court reporter and arrange for the attendance of the

witness. It is not defendant’s obligation or the court’s obligation to do so.” Lopez v.

Horel, 2007 WL 2177460 *2 (N.D. Cal. 2007) (pro se prisoner case). See also Doe v.

U.S., 112 F.R.D. 183, 185 (S.D.N.Y. 1986) (neither the defendant nor the government is

required to pay for the deposition costs of a prisoner litigant).

Case 1:04-cv-00152-GCM Document 70 Filed 12/01/08 Page 1 of 3

 A prisoner’s indigency does not relieve him of his responsibility to arrange for a

Rule 31 deposition he wishes to have taken, by “designat[ing] a deposition officer and

notify[ing] the deponent of the agreed-upon time, place and manner of deposition.”

Jackson v. Woodford, 2007 WL 2580566 *1 (S.D. Cal. 2007).

“‘Expenditure of public funds [on behalf of an indigent litigant] is proper

only when authorized by Congress ....’ United States v. MacCollom, 426 U.S.
317, 321, 96 S.Ct. 2086, 48 L.Ed.2d 666 (1976). Pursuant to 28 U.S.C. § 1915(a),
Plaintiff’s in forma pauperis status entitles him to a waiver of the filing fee and
free service of process by United States Marshals, however, it does not entitle him
to waiver of witness fees, mileage or deposition officer fees. [citations]” Ibid.

Since Plaintiff has not retained and paid a court reporter to cover the requested

depositions, his motion should be denied. He is certainly not without the means to obtain

the requested information through other methods. He has already demonstrated

substantial familiarity with the discovery process through the serving of interrogatories,

requests for admission, and at least two sets of requests for production.

2. CONCLUSION

As hereinabove demonstrated, Plaintiff has failed to satisfy the Rule 31

prerequisites for depositions on written questions. His motion should therefore be

denied.

Dated: December 1, 2008 /s/ Scott D. MacLatchie

Scott D. MacLatchie
North Carolina Bar No. 22824
Womble Carlyle Sandridge & Rice
301 S. College Street, Ste. 3500
Charlotte, North Carolina 28202
Telephone No. (704) 331-4942
Fax No. (704) 343-4867
Attorney for Defendants

Case 1:04-cv-00152-GCM Document 70 Filed 12/01/08 Page 2 of 3

 CERTIFICATE OF SERVICE

I certify that the interested parties to this action were served this date with a copy
of the foregoing OPPOSITION TO MOTION FOR DEPOSITION OF DEFENDANTS
THROUGH DEFENDANTS’ LAWYER by placing said copy in the United States mail,
postage prepaid, addressed as follows:

Jonathan L. Henslee
#0722492
P.O. Box 909
Taylorsville, NC 28681

Dated: December 1, 2008

/s/ Scott D. MacLatchie
Scott D. MacLatchie

3
WCSR 4026408v1

Case 1:04-cv-00152-GCM Document 70 Filed 12/01/08 Page 3 of 3