United States District Court, D. Montana, Helena Division
JEFFERY J. LOUT, Plaintiff,
ROXANNE TUSS, et al, Defendants.
Johnston United States Magistrate Judge.
following motions are pending: Plaintiff Jeffery Lout's
"Motion for Order to Schedule Depositions" (Doc.
82); Defendants' Motion for Protective Order (Doc. 84);
and Mr. Lout's Motion for Extention [sic] of Scheduling
Orders Deadlines for Discovery (Doc. 86).
Motion for Depositions
Lout moves the Court for an order to schedule the taking of
107 depositions of lay and expert witnesses. Attached to that
motion is a proposed order commanding the appearance of lay
witnesses for oral deposition (Doc. 82-1 at 1-2); proposed
order commanding the appearance of expert witnesses for oral
deposition (Doc. 82-1 at 3-4); Mr. Lout's first set of
witnesses lay-persons and experts in which he lists 83 lay
witnesses and 24 expert witnesses (Doc. 82-2 at 1-16); a
listing of lay person witnesses incarcerated at MSP (Doc.
82-2 at 17-20); a motion for order to transport and return to
the Montana State Prison the incarcerated lay person witness
for the taking of oral depositions (Doc. 82-3 at 1-4); a list
of offender lay witnesses to be transferred to MSP for the
taking of oral depositions (Doc. 82-3 at 5-6); a proposed
order to transport and return to Montana State Prison for the
taking of oral depositions (Doc. 82-3 at 8-9); a motion for
order of subpoenas for witnesses attendance at oral
depositions (Doc. 82-4 at 1-4); a subpoena and notice to
appear at the taking of oral depositions (Doc. 82-4 at 5-6);
a listing of expert witnesses of MSP Staff and outside
sponsors (Doc. 82-4 at 7-8); a list of lay witnesses former
Wiccan's who have been discharged or paroled (Doc. 82-4
at 9-10); and a list of Wiccan Expert Witnesses (Doc. 82-4 at
oppose the motion arguing that Mr. Lout has not yet made his
required initial disclosures as required by the Court's
August 1, 2016 Scheduling Order (Doc. 49 at 1-3, ¶
I(A)(B); Mr. Lout has not indicated what method of recording
he will use or how he will pay for the recording or witness
fees; and Mr. Lout has not demonstrated a need to exceed the
presumptive limit of 10 depositions imposed by Fed.R.Civ.P.
are a number of problems with Mr. Lout's requests. First,
the motion does not indicate that he has conferred with
defense counsel regarding these issues and therefore the
motion is subject to dismissal pursuant to Local Rule 7.1.
Mr. Lout is asking the Court to assist him in litigating this
matter by helping him contact witnesses, schedule
depositions, provide for transport of witness, and provide
the means of taking/recording those depositions. The Federal
Rules of Civil Procedure govern the manner in which such
depositions may be taken, either by oral or written
questions. Rule 30 of the Federal Rules of Civil Procedure
governs the procedure by which depositions are taken by oral
examination. "A party who wants to depose a person by
oral questions must give reasonable written notice to every
other party." Fed.R.Civ.P. 30(b)(1). "The party who
notices the deposition must state in the notice the method
for recording the testimony." Fed.R.Civ.P. 30(b)(3)(A).
The noticing party must also bear costs of recording the
deposition. Id. In addition, that party must arrange
for an officer to conduct the depositions (absent a
stipulation by all parties otherwise). Fed.R.Civ.P.
30(b)(5)(A). Depositions by written questions must be taken
pursuant to the procedures set forth under Federal Rule of
Civil Procedure 31.
Lout's in forma pauperis status also does not entitle him
to a waiver of any of the costs associated with taking
depositions, including recording costs, court reporter fees,
and transcript fees. Mr. Lout does not need the Court's
permission to depose any witness (except incarcerated
inmates). Yet, he must follow the applicable rule and bear
the costs for any depositions he seeks to take in this
matter. His in forma pauperis status does not entitle him to
free services from the Court, such as scheduling, conducting,
or recording the deposition, or to utilize Defendants'
resources for the deposition. See, e.g., Brooks v.
Tate, 2013 WL 4049053, *1 (E.D. Cal. Aug. 7, 2013)
(indigent prisoner not entitled to take the depositions of
defendant and non-party witnesses during his own deposition).
To the extent Mr. Lout seeks an order for Defendants or
defense counsel to make the necessary arrangements, the Court
will not order them to do so. Mr. Lout cites no authority
under the Federal Rules of Civil Procedure that allows or
directs the court to assist in discovery on behalf of a
Mr. Lout's responsibility to schedule depositions and
provide the means of taking/recording any depositions.
See Fed.R.Civ.P. 30(b)(3); Fed.R.Civ.P. 45(a)(1)(B)
("A subpoena commanding attendance at a deposition must
state the method for recording the testimony.) He has not
indicated in any of his filings the means he intends to use
for recording testimony.
because Mr. Lout has been granted leave to proceed in forma
pauperis in this matter, 28 U.S.C. § 1915(d) requires
officers of the Court to issue and serve witness subpoenas.
All witnesses, except prisoner-witnesses are entitled to
witness fees. 28 U.S.C. § 1821(f). Each witness is
entitled to $40.00 plus mileage for the distance between his
or her home or work address and the courthouse at a rate of
$0, 535 per mile. See 28 U.S.C. § 1821(b),
(c)(2); Tedder v. Odel, 890 F.2d 210 (9th Cir.
1989). The witness fee must be paid by institutional check or
money order made payable to the witness. The check or money
order must be attached to any request to the Court to
subpoena the witness. The Court will not order service of any
subpoena that is not accompanied by the appropriate witness
Mr. Lout is seeking to conduct over 107 depositions. Rule 30
of the Federal Rules of Civil Procedure provides that leave
of court is required if a party is taking more than 10
depositions. Mr. Lout has not provided sufficient
justification for taking such an excessive number of
depositions. Also, as explained by Defendants, the taking of
such a large number of inmate witnesses would put a
tremendous burden on the security staff at MSP. The Court
will need sufficient justification to allow Mr. Lout to
depose this many inmate witnesses. In addition, as set forth
above, Mr. Lout will need to advise the Court of how he will
provide a means of taking/recording each of these
the Court will direct service of proper subpoenas for Mr.
Lout under 28 U.S.C. 1915(d), but only if Mr. Lout submits a
completed subpoena in final form, with appropriate
justification for said subpoena, and the fees for one days
attendance and the mileage allowed by law for any
non-incarcerated witnesses. See Fed.R.Civ.P. 45(b)(1)
("Serving a subpoena requires delivering a copy to the
named person and, if the subpoena requires that person's
attendance, tendering the fees for 1 day's attendance and
the mileage allowed by law.")
the Court will only issue subpoenas which comply with Rule 45
of the Federal Rules of Civil ...