Wright v. State of Washington

[5] UNITED STATES DISTRICT COURT [6] WESTERN DISTRICT OF WASHINGTON AT SEATTLE [7] 8 MATT WRIGHT, 9 Plaintiff, Case No. C23-1326-BJR-SKV 10 v. ORDER DENYING MOTION TO TAKE MORE THAN TEN 11 STATE OF WASHINGTON, et al., DEPOSITIONS 12 Defendants. [13] 14 I. BACKGROUND 15 This matter is before the Court on Plaintiff’s motion for leave to take more than ten 16 depositions. Dkt. 19. In the complaint, Plaintiff alleges various tortious, constitutional, and 17 statutory violations were committed against him in retaliation for exercising his First 18 Amendment rights while incarcerated at the Monroe Correctional Complex. See Dkt. 1-2. He 19 names the State of Washington, the Washington State Department of Corrections (“DOC”), and 20 ten DOC employees as Defendants. See Dkt. 1-2. At the time of filing his motion, Plaintiff had 21 taken five depositions and noted three more. Dkt. 19 at 3-4. Three of Plaintiff’s deponents are 22 defendants, including one Rule 30(b)(6) witness, and five are non-parties. Id. Pursuant to Fed. [23] 1 R. Civ. P. 26(b)(2), Plaintiff now seeks permission to depose the eight remaining DOC employee 2 defendants and “any experts or designees that defendants declare.” Id. at 4. 3 II. DISCUSSION 4 Fed. R. Civ. P. 30(a)(2) limits the number of depositions each side is allowed to take to 5 ten. Thykkuttathil v. Keese, 294 F.R.D. 597, 599 (W.D. Wash. 2013). “The ten-per-side limit is 6 intended to promote cost-effective discovery and promote the federal rules’ policy of minimizing 7 ‘unreasonably cumulative or duplicative’ discovery.” Id. (citing Fed. R. Civ. P. 26(b)(2); Fed. R. 8 Civ. P. 30 Advisory Committee’s Note (1993)). The Rule 30 Advisory Committee expressly 9 noted this rule “applies to multi-party cases . . . and can only be lifted by stipulation or court 10 approval.” Id. (citing Fed. R. Civ. P. 30 Advisory Committee’s Note (1993)). Where there is no 11 stipulation, the party “seeking to exceed the presumptive limit” must make a “‘particularized 12 showing’ of the need for additional depositions.” Id. Courts considering whether to expand the 13 limit under Rule 26(b)(2) must look at “whether: (i) the discovery sought is unreasonably 14 cumulative or duplicative, or is obtainable from some other source that is more convenient, less 15 burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by 16 discovery in the action to obtain the information sought; [and] (iii) the burden or expense of the 17 proposed discovery outweighs its likely benefit, taking into account the needs of the case, the 18 amount in controversy, the parties’ resources, the importance of the issues at stake in the 19 litigation, and the importance of the proposed discovery in resolving the issues.” Id. at 600 20 (citation omitted); Fed. R. Civ. P. 26(b)(2)(C). Parties “should ordinarily exhaust their allowed 21 number of depositions” before asking the Court to permit them to take more. Id. (citations 22 omitted). 23 // 1 1. Plaintiff has not shown a particular need for more than ten depositions. 2 Plaintiff has not met his burden to show a particularized need for more than ten 3 depositions. Defendants contend Plaintiff has propounded just one interrogatory to date, Dkt. 22 4 at 5, and Plaintiff does not deny this. He argues depositions are the “most efficient way to gain 5 information that [he] intends to seek,” and that if he “agrees to acquire information via 6 interrogatories” instead, he will “have to submit multiple sets of Interrogatories, asking follow7 up questions after receiving prepared written responses from a defendant.” Dkt. 26 at 4. 8 Plaintiff contends this will “further extend the discovery practice and will be much more 9 burdensome than conducting an oral deposition.” Id. But the Federal Rules of Civil Procedure 10 do not mandate parties use either depositions or interrogatories exclusively. The usual practice 11 is for litigants to employ these and other discovery tools in a complementary manner. 12 Plaintiff correctly points out that depositions allow for discovery of nuances and other 13 details about a case, such as witness credibility, that are unlikely to be ascertainable from 14 attorney-crafted answers to interrogatories. See id. at 2-5. In a deposition, “the examining party 15 has great flexibility and can frame the questions on the basis of answers to previous questions. 16 Moreover, the party being examined does not have the opportunity to study the questions in 17 advance and to consult with counsel before answering.” 8B Wright & Miller, Fed. Prac. & Proc. 18 § 2163. But interrogatories “are an effective way to obtain simple facts, to narrow the issues by 19 securing admissions from the other party, and to obtain information needed in order to make use 20 of the other discovery procedures.” Id. They are also far less expensive and onerous to conduct 21 than depositions and may help the parties determine which witnesses have the most useful 22 information. In any litigation there may be countless individuals whose testimony could bolster [23] 1 a party’s claims or defenses to some degree, but that does not mean each one of them is worth 2 deposing. 3 In his motion, Plaintiff briefly explains the information he sought to learn from the 4 depositions he already took or noted. See Dkt. 19 at 3-4. He does not, however, in any way 5 identify what he expects to learn from the remaining eight defendants beyond broadly stating 6 they are “crucial actors in this lawsuit.” Dkt. 26 at 6. Nor does he explain with any specificity 7 why that information would not be duplicative of what he has already learned or why it cannot 8 be obtained through other means of discovery. Plaintiff contends that deposing each defendant 9 will allow him to “judge witness credibility” and “follow up in real time with unanticipated 10 probing questions [that] might reveal the truth.” Id. at 3. But these arguments are generic to any 11 witness and fall short of the particularized showing he must make. Without more information, 12 the Court cannot weigh the benefits and burdens of granting Plaintiff leave to take more than the 13 normally allowed ten depositions. See Fed R. Civ. P. 26(b)(2)(c). 14 2. Plaintiff’s motion is premature. 15 Even if Plaintiff had met his burden here, his motion is premature. “[C]ourts will 16 generally not grant leave to expand the number of depositions until the moving party has 17 exhausted the ten depositions permitted as of right under Rule 30(a)(2)(A).” Smith v. Ardew 18 Wood Products, Ltd., 2008 WL 4837216 , at *1 (W.D. Wash. 2008); see also Archer Daniels 19 Midland Co. v. Aon Risk Servs., Inc. of Minn., 187 F.R.D. 578, 586 (D. Minn. 1999) (party 20 should “exhaust” the number of depositions allowed so it may make an “informed request for an 21 opportunity to depose more witnesses”). The purpose of this rule is to ensure litigants know the 22 full scope of information they can gather from their ten permitted deponents before making an 23 informed decision as to whether more depositions are necessary. Here, Plaintiff had only taken 1 five depositions when he moved the Court for leave to take six (or more) depositions beyond 2 what the Rules normally allow. See Dkt. 19 at 3-5. He cannot possibly know the full scope of 3 what is to be learned from the ten depositions he is permitted to take and therefore cannot make 4 an informed request to take more at this time. 5 For these reasons, Plaintiff’s motion for leave to take more than ten depositions, Dkt. 19, 6 is denied. He may choose to renew his motion after he has completed the ten permitted 7 depositions. If he does so, Plaintiff should be mindful of the deficiencies discussed herein and 8 ensure his renewed motion shows, with particularity, why each additional deposition is 9 necessary. 10 III. CONCLUSION 11 For the reasons given above, Plaintiff’s motion to take more than ten depositions is 12 DENIED. Dkt. 19. The Clerk is directed to send copies of this order to the parties and to the 13 Honorable Barbara J. Rothstein. 14 Dated this 15th day of August, 2024. [15] A 16 S. KATE VAUGHAN United States Magistrate Judge