United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
LYNN WINMILL U.S. DISTRICT COURT JUDGE.
Court has before it a motion to transport and motion for
protective order filed by defendant Dillon, and a motion to
take Dillon's deposition filed by the Government. The
motions are fully briefed and at issue. For the reasons
expressed below, the Court will deny the motion to transport
and the motion for protective order, and will grant the
motion to take defendant's deposition.
Dillon is presently incarcerated at FCI Aliceville, Alabama,
following her sentencing on 48 counts of identity theft and
Medicaid fraud. In this civil action, the Government alleges
that Dillon violated the False Claims Act by presenting
fraudulent Medicaid claims to the United States.
has filed a motion asking that she be transferred to a prison
facility closer to her attorneys, who reside in Boise Idaho.
She argues that being in Alabama, she (1) has difficulty
communicating with counsel in Idaho, and (2) cannot afford to
have her counsel come to Alabama for her deposition.
support of her motion, she cites the All Writs Act, 26 U.S.C.
§ 1651, and the holding in Holt v. Pitts 619
F.2d 558 (6th Cir. 1980) that the Act gives federal courts
discretion to “issue writs requiring penal authorities
to produce prisoners at judicial proceedings in civil
cases.” Id. at 561.
Dillon recognizes, Holt stated that “a court
should issue a writ that requires the production of a
prisoner [in a civil case] only in those cases where the
prisoner's physical presence will contribute
significantly to a fair adjudication of his claims.”
Id. The district court in Holt ultimately
refused to grant the writ and the Sixth Circuit affirmed,
stating “[t]he cost and inconvenience that would have
been involved in the transportation of plaintiff from the
federal penitentiary in California to the district courthouse
in Tennessee would have been entirely disproportionate to the
prospective benefits.” Id.
Holt is not binding on this Court, its analysis is
persuasive. Dillon fails to identify any specific
communication problems other than those always associated
with distance - that is an inconvenience, not a barrier, and
if it triggered transport, all inmates would be filing such
requests. Dillon says she lacks the funds for her counsel to
travel, but she apparently has the funds to pay him for
attending the deposition and continuing to represent her.
This sounds again like an inconvenience, not a barrier. There
would be a substantial cost to transfer Dillon across the
country and a real concern with overriding the Bureau of
Prisons' designation expertise. Because there has been no
showing that transfer would contribute significantly to a
fair adjudication of her claims, the Court will deny
to Take Dillon's Deposition & Motion for Protective
Government has moved under Rule 30(a)(2)(B) to take
Dillon's deposition. Dillon responded with a motion for
protective order seeking to block the Government from taking
her deposition, and from taking any other depositions without
her being present.
has personal knowledge of relevant facts, and thus the
Government has made the necessary showing under Rule
30(a)(2)(B). Dillon argues, however, that she is entitled to
a protective order blocking that deposition because she lacks
financial resources to “afford legal counsel to be
present for her deposition in Aliceville, Alabama.”
See Brief (Dkt. No. 33) at p. 2. She cites no
authority that this reason justifies protecting her from
being deposed; indeed, having no right to appointed counsel,
Hernandez v. Whiting, 881 F.2d 768, 770 (9th Cir.
1989), it follows that her lack of funds to fly her attorney
to Alabama cannot be a justification for an order blocking
also seeks a protective order blocking any deposition of
another person unless Dillon could be physically present. She
does not identify any specific depositions and explain why
her physical presence is necessary. She has no right to be
physically present at depositions of other persons,
Hernandez, 881 F.2d at 770, and has made no ...