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Nusbaum v. MBFG Limited Partnership

August 20, 2009

DANIEL J. NUSBAUM, PLAINTIFF,
v.
MBFG LIMITED PARTNERSHIP D/B/A/ MONTEREY BAY FISH GROTTO, DEFENDANT.



The opinion of the court was delivered by: Nora Barry Fischer United States District Judge

MEMORANDUM ORDER

AND NOW, this 20th day of August, 2009, upon consideration of Plaintiff's Motion to Commission Michael Jones as Authorized Deposition Officer Pursuant to Federal Rule of Civil Procedure 28(a)(1) (Docket No. 75) and Defendant's response thereto (Docket No. 77), Plaintiff's motion is hereby DENIED.

Plaintiff has requested that this Court commission Michael Jones, a videographer Plaintiff has retained for the purposes of recording depositions in this matter, as an authorized deposition officer pursuant to this Court's power under Federal Rule of Civil Procedure 28(a)(1)(B). (Docket No. 75 at 12). Plaintiff further asks that this Court permit him to transcribe the videotaped depositions himself, and deny Defendant's request that he be required to hire a certified court reporter to attend and simultaneously transcribe any depositions he notices. (Id.).

Plaintiff's requests are based on the fact that he claims he is not financially able to pay for a certified court reporter to transcribe the depositions he has noticed, nor is he able to afford a notary to serve as the deposition officer. (Id. at 1-2). However, as detailed below, the Court cannot risk the possibility of an inaccurate transcript or a breakdown in the chain of custody of the videotaped depositions were the Court to allow Plaintiff to proceed as he proposes, as this would potentially prejudice Defendant or delay these proceedings.

First, in regard Plaintiff's request that this Court commission Michael Jones as an authorized deposition officer, the Federal Rules of Civil Procedure provide that an officer's duties are, in part, as follows:

(5) Officer's Duties.

(A) Before the Deposition. Unless the parties stipulate otherwise, a deposition must be conducted before an officer appointed or designated under Rule 28. The officer must begin the deposition with an on-the-record statement that includes:

(i) the officer's name and business address;

(ii) the date, time, and place of the deposition;

(iii) the deponent's name;

(iv) the officer's administration of the oath or affirmation to the deponent; and

(v) the identity of all persons present.

(B) Conducting the Deposition; Avoiding Distortion. If the deposition is recorded nonstenographically, the officer must repeat the items in Rule 30(b)(5)(A)(i)-(iii) at the beginning of each unit of the recording medium. The deponent's and attorneys' appearance or demeanor must not be distorted through recording techniques.

(C) After the Deposition. At the end of a deposition, the officer must state on the record that the deposition is complete and must set out any stipulations made by the attorneys about custody of the transcript or recording ...


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