The opinion
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROBERT T. BROWN, Case No.: 19-11325
Plaintiff,
Stephanie Dawkins Davis
v. United States District Judge
MICHAEL SNYDER, Curtis Ivy, Jr.
Defendant. United States Magistrate Judge
____________________________/
ORDER DENYING PLAINTIFF’S MOTION FOR DEPOSITIONS TO
PERPETUATE TESTIMONY (ECF No. 31)
I. PROCEDURAL HISTORY
Plaintiff Robert T. Brown, proceeding pro se, filed this prisoner civil rights
action on May 6, 2019. (ECF No. 1). Defendant Michael Snyder then filed a
motion for more definite statement, which was granted. (ECF Nos. 22, 29). On
May 1, 2020, Brown filed an amended complaint and the instant motion for
depositions to perpetuate testimony. (ECF Nos. 30, 31). In July 2020, Snyder
filed a second motion for more definite statement, (ECF No. 32), which was
subsequently denied after Brown filed a second amended complaint (ECF No. 33,
35). The second amended complaint, at docket no. 33, is now the operative
complaint. (See Order denying Second Motion for More Definite Statement, ECF
No. 35). This matter was referred to the undersigned for all pretrial matters on
October 16, 2020. (ECF No. 36).
II. DISCUSSION
In his pleading, Brown requested the Court to issue an order directing
Snyder to respond to the written deposition questions provided in his motion.
(ECF No. 31, PageID.128). According to his motion, Brown seeks relief pursuant
to Fed. R. Civ. P. 27(a)(1) and 30(c)(3). (Id.). For the reasons outlined below,
Brown’s motion is denied as both improper and premature.
Brown’s attempt to serve the questions on Snyder in the first instance by
filing them with the Court is improper under Eastern District of Michigan Local
Rule 26.2 and Fed. R. Civ. P. 5(d)(1).1 Discovery requests must be made in
accordance with Fed. R. Civ. P. 26 through 37 if and when the time for discovery
begins. See Fed. R. Civ. P. 26-37. That is, discovery requests must be directed to
the defendant, not filed with the Court.2 Therefore, Brown’s motion is due to be
denied as it is an improper means of submitting discovery to Defendant.
1 While Brown is representing himself in this matter, he is still expected to adhere to the
rules governing litigation in this court. West v. Saginaw Twp. Police Dep’t., 2014 WL 3599495,
at *2 (E.D. Mich. July 22, 2014) (a pro se plaintiff is “not excused from failing to follow the
Federal Rules of Civil Procedure”); Fields v. Cnty. of Lapeer, 2000 WL 1720727 (6th Cir. 2000)
(“It is incumbent on litigants, even those proceeding pro se, to follow ... rules of procedure.”);
Kitchen v. Corizon Health Inc., 2018 WL 286425, at *4 (W.D. Mich. Jan. 4, 2018) (“The Federal
Rules of Civil Procedure bind even pro se individuals.”).
2 Although Plaintiff titled his requests “deposition” questions, it is not clear if he intended
that Defendant be compelled to respond to the questions pursuant to Fed. R. Civ. P. 31 or as
Nonetheless, even if Brown’s motion was properly before the Court, it is
still due to be denied. Federal Rule of Civil Procedure 27, “Depositions to
Perpetuate Testimony,” does not apply to motions to perpetuate testimony filed
while an action remains pending before a district court. Federal Rule of Civil
Procedure 27 contemplates such depositions that occur before an action is filed,
Fed. R. Civ. P. 27(a), or after judgment pending appeal, Fed. R. Civ. P. 27(b).
Neither scenario is present here. Brown filed this motion nearly a year after he
commenced the action against Snyder, and to date an appealable judgment has not
been issued in this case. Therefore, Federal Rule of Civil Procure 27 in
inapplicable.3
Moreover, discovery has not yet commenced. In pro se prisoner civil
litigation, such as this case, discovery typically commences upon issuance of a
scheduling order setting discovery and dispositive motion deadlines.4 A
interrogatories pursuant to Fed. R. Civ. P. 33. In either case, Plaintiff’s motion is denied for the
reasons outlined herein.
3 Brown also cited Fed. R. Civ. P. 30(c)(3), “Participating Through Written Questions,”
as authority for his motion. This rule allows a party to participate in a deposition remotely by
serving written questions on the party who noticed the deposition. The party who noticed the
deposition must give the questions to the officer administering the oath who will then ask the
deponent the written questions and record the answers. As with Fed. R. Civ. P. 27, this
particular rule is inapposite here. Brown neither noticed an in-person deposition contemplated
under this rule nor requested that his questions be read at a deposition.
4 In non-prisoner civil litigation, the parties are required to adhere to Fed. R. Civ. P. 26(f)
which requires the parties conduct a discovery conference prior to commencing discovery. Rule
26(d) prohibits a party from seeking discovery from “any source” before the parties have
conducted a Rule 26(f) conference, except when authorized by the Rules, stipulation or court
scheduling order has not been issued, but will be in due course after Snyder files an
answer to the complaint. To the extent Brown’s motion is for leave of the Court to
commence discovery prior to the issuance of the scheduling order, he has provided
no grounds on which to do so.
Further, although Brown refers to his questions as “disregarded
depositions”—implying Snyder has ignored the questions—it is not clear Brown
has served his questions on the defendant. Rather, it appears Brown is providing
his questions to Snyder for the first time in his motion. A motion to compel
responses to discovery is appropriate when the responding party fails to properly or
timely respond to properly served discovery requests. Fed. R. Civ. P. 37(a).
Because it does not appear Snyder was properly served with Brown’s discovery
requests, his obligation to respond was not triggered. Thus, a motion to compel
responses at this juncture is premature.
Accordingly, Brown’s motion is DENIED.
IT IS SO ORDERED.
The parties to this action may object to and seek review of this Order, but
are required to file any objections within 14 days of service as provided for in
Federal Rule of Civil Procedure 72(a) and Local Rule 72.1(d). A party may not
order. Pro se prisoner civil litigation is exempt from Fed. R. Civ. P. 26(f). Fed. R. Civ. P.
26(a)(1)(B)(iv).
assign as error any defect in this Order to which timely objection was not made.
Fed. R. Civ. P. 72(a). Any objections are required to specify the part of the Order
to which the party objects and state the basis of the objection. When an objection
is filed to a magistrate judge’s ruling on a non-dispositive motion, the ruling
remains in full force and effect unless and until it is stayed by the magistrate judge
or a district judge. E.D. Mich. Local Rule 72.2.
Date: October 29, 2020 s/Curtis Ivy, Jr.
Curtis Ivy, Jr.
United States Magistrate Judge
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on October 29, 2020, by electronic means and/or
ordinary mail.
s/Kristen MacKay
Case Manager
(810) 341-7850