Free Motion to Take Deposition - District Court of Delaware - Delaware

Case 1:04-cv-00219-GMS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE DONIAL FAYSON, ) ) Plaintiff, ) ) v. ) ) ) BERNITA EARLE and PATRICK RYAN, ) ) Defendants. )

C.A. No. 04-219-*** Jury Trial Requested

DEFENDANTS' MOTION FOR LEAVE TO DEPOSE PLAINTIFF COMES NOW, Defendants Bernita Earle and Patrick Ryan (the "Defendants"), by and through their undersigned counsel, and hereby move this Honorable Court (the "Motion") to enter an order, substantially in the form attached hereto, granting the Defendants leave to depose Plaintiff Donial Fayson ("Fayson" or "Plaintiff"). In support of the Motion, the Defendants state as follows: 1. Plaintiff, Fayson is an inmate presently incarcerated at the Baylor

Women's Correctional Institution ("BWCI") in New Castle, Delaware. 2. discovery in this case. 3. The scheduling order entered in this matter set the discovery Counsel for the Defendants wishes to depose Fayson as part of

deadline for September 28, 2007 (D.I. 43). 4. On August 21, 2007, the Court held a status conference in this

matter with the Plaintiff and counsel for the Defendants. At the status conference, Plaintiff informed the Court that she would be filing a motion seeking a stay of the proceedings while she attempted to hire an attorney. To date, however, Plaintiff has not

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filed a motion to stay. 5. The discovery deadline in this matter is looming and, given that

Plaintiff has not filed a motion to stay, Defendants will need to depose Plaintiff prior to the discovery deadline. 6. Federal Rule of Civil Procedure 30(a) requires leave of the Court

to depose an incarcerated individual. 7. A form of order is attached to this Motion that grants Defendants'

counsel the right to depose Fayson. WHEREFORE, Defendants respectfully request that this Honorable Court enter an order, substantially in the form attached hereto, granting the Motion for Leave to Depose Plaintiff Donial Fayson.

DEPARTMENT OF JUSTICE STATE OF DELAWARE /s/ Erika Y. Tross Erika Y. Tross (#4506) Deputy Attorney General 820 N. French Street, 6th Floor Wilmington, DE 19801 (302) 577-8400 Attorney for the Defendants

Dated: September 10, 2007

-2-

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE DONIAL FAYSON, ) ) Plaintiff, ) ) v. ) ) ) BERNITA EARLE and PATRICK RYAN, ) ) Defendants. ) ORDER Upon Defendants' Motion For Leave To Depose Plaintiff (the "Motion"); and it appearing that good and sufficient notice of the Motion has been given; and after due deliberation thereon: IT IS HEREBY ORDERED as follows: 1. 2. The Motion is GRANTED. Defendants are granted leave to depose the Plaintiff in this matter.

C.A. No. 04-219-*** Jury Trial Requested

SO ORDERED this _________ day of ______________, 2007.

__________________________________________ The Honorable Mary Pat Thynge United States District Court Magistrate Judge

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE DONIAL FAYSON, ) ) Plaintiff, ) ) v. ) ) ) BERNITA EARLE and PATRICK RYAN, ) ) Defendants. )

C.A. No. 04-219-*** Jury Trial Requested

7.1.1 CERTIFICATE OF COUNSEL The undersigned counsel hereby certifies, pursuant to Rule 7.1.1 of the Local Rules for the District Court of Delaware, that she is, as a practical matter, unable to discuss the subject of this Motion with the Plaintiff because the Plaintiff is an incarcerated inmate in a prison. Defense counsel assumes that the Plaintiff opposes the Motion. DEPARTMENT OF JUSTICE STATE OF DELAWARE /s/ Erika Y. Tross Erika Y. Tross (#4506) Deputy Attorney General 820 N. French Street, 6th Floor Wilmington, DE 19801 (302) 577-8400 Attorney for the Defendants

Dated: September 10, 2007

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CERTIFICATE OF SERVICE
I, Erika Y. Tross, Esq., hereby certify that on September 10, 2007, I caused a true and correct copy of the attached Defendants' Motion for Leave to Depose Plaintiff to be served on the following individual in the form and manner indicated:

NAME AND ADDRESS OF RECIPIENT(S): Inmate Donial Fayson SBI #463713 Baylor Women's Correctional Institution 660 Baylor Boulevard New Castle, DE 19720

MANNER OF DELIVERY: One true copy by facsimile transmission to each recipient Two true copies by first class mail, postage prepaid, to each recipient Two true copies by Federal Express Two true copies by hand delivery to each recipient /s/ Erika Y. Tross Erika Y. Tross (#4506) Deputy Attorney General Delaware Department of Justice Carvel State Office Building 820 N. French Street, 6th Floor Wilmington, DE 19801 302-577-8400