(PC) Perez v. Smith ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 SANDRO S. PEREZ, Case No. 1:20-cv-00840-DAD-SAB (PC) 11 Plaintiff, ORDER GRANTING MOTION FOR RELIEF FROM REQUIREMENT UNDER 12 v. FEDERAL RULE OF CIVIL PROCEDURE 28’S REQUIREMENT TO HAVE COURT 13 A. SMITH, et al., REPORTER PHYSICALLY PRESENT 14 Defendants. (ECF No. 38) 15 16 Plaintiff Sandro S. Perez is proceeding pro se and in forma pauperis in this civil rights 17 action pursuant to 42 U.S.C. § 1983. On June 21, 2021, the Defendants filed an ex parte 18 application to conduct a deposition of Plaintiff with the court reporter appearing remotely, due to 19 COVID-19 precautions. (ECF No. 38.) “The expression ‘ex parte motion’ is a term of art. In its 20 pure form it means a request a party makes to the court without any notice to the other side.” 21 Mission Power Eng’g Co. v. Cont'l Cas. Co., 883 F. Supp. 488, 490 (C.D. Cal. 1995). The Court 22 notes the Defendants’ filing was served on Plaintiff by U.S. mail. (ECF No. 38-3.) The Court 23 shall construe the application as a motion. 24 The Court finds good cause to grant the motion pursuant to Federal Rules of Civil 25 Procedure 28 and 30. However, while the filing indicates the “deposition had to be carefully 26 scheduled in order to accommodate the deponent’s institution and court reporting agency’s social 27 distancing requirements,” (ECF No. 38-1 at 1), the Court notes the filing does not appear to contain the date of the noticed deposition. It is thus not clear how long Plaintiff would have had 1 | to file any opposition or objection to the instant motion. If the Court receives any objection or 2 | opposition to the motion prior to the deposition, the Court may review and entertain such, but 3 | does not foresee any basis to overrule the granting of the motion herein, given the needs of the 4 | court report and the facility due to COVID-19 protocols. 5 The Defendants shall further be ordered to ensure the video system or other protocols are 6 | sufficiently in place so that ensure Plaintiff is able to view any exhibits during the deposition. 7 Accordingly IT IS HEREBY ORDERED that: 8 1. Defendants’ ex parte motion (ECF No. 38) is GRANTED; 9 2. The court reporter is not required to be in the same physical location as Plaintiff 10 during the deposition; and 11 3. Defendant shall ensure sufficient procedures are set in place to allow Plaintiff can 12 view any exhibits presented during the deposition. 13 14 IT IS SO ORDERED. DAM Le 15 | Dated: _ July 6, 2021 ; 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28