UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

RAYMOND M. KRUSHIN, :

Plaintiff :

:

v. : CIVIL NO. 4:CV-04-2151

:

: (Judge McClure) 

GENE FISCHI, ET AL., :

Defendants :

ORDER

April 27, 2005

Background

Raymond M. Krushin, an inmate presently confined at the Luzerne County

Correctional Facility, Wilkes-Barre, Pennsylvania, initiated this pro se civil rights

action. The required filing fee has been paid. An answer to the complaint was

submitted on December 13, 2004. Presently pending are seven (7) motions by the

Plaintiff requesting leave to take depositions upon written questions of five (5)

correctional officials who are named as Defendants in this action.

On November 3, 2004, Krushin filed a motion requesting leave to take

depositions upon written questions of Defendants Gene Fischi and Joe Morris. 

See Record document no 35. Plaintiff next filed a motion on January 14, 2005,

seeking permission to take a deposition upon written questions of Defendant

Jackie Grimes. 

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See Record document no. 87. Similar motions were subsequently submitted

regarding Defendant James Larson (Record document nos. 101 & 120); 

Defendant Fischi (Record document nos. 104 & 111); Defendant Morris (Record

document no. 103); Defendant Grimes (Record document no. 120); and

Defendant Ronald Orkwis (Record document no. 120).

Discussion

Federal Rule of Civil Procedure 26 provides in relevant part as follows:

Parties may obtain discovery regarding any matter, not

privileged, which is relevant to the subject matter

involved in the pending action, whether it relates to the

claim or defense of the party seeking discovery or to the

claim or defense of any other party, including the

existence, description, nature, custody, condition, and

location of any books, documents, or other tangible

things and the identity and location of persons having

knowledge of any discoverable matter. The information

sought need not be admissible at the trial if the

information sought appears reasonably calculated to lead

to the discovery of admissible evidence.

. . .

The frequency or extent of use of the discovery methods

. . . shall be limited by the court if it determines that: (i)

the discovery sought is unreasonably cumulative or

duplicative, or is obtainable from some other source that

is more convenient, less burdensome, or less expensive;

(ii) the party seeking discovery has had ample

opportunity by discovery in the action to obtain the

information sought; or (iii) the burden or expense of the

proposed discovery outweighs its likely benefit, taking

into account the needs of the case, the amount in

controversy, the parties' resources, the importance of the

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issues at stake in the litigation, and the importance of the

proposed discovery in resolving the issues.

Fed. R. Civ. P. 26(b)(1), (2).

It is well-settled that Rule 26 establishes a liberal discovery policy. 

Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978); Hickman v.

Taylor, 329 U.S. 495, 507-08 (1947); Great West Life Assurance Co. v. Levithan,

152 F.R.D. 494, 497 (E.D. Pa. 1994). As a general rule, therefore, discovery is

permitted of any items that are relevant or may lead to the discovery of relevant

information. Hicks v. Big Bros./Big Sisters of Am., 168 F.R.D. 528, 529 (E.D.

Pa. 1996); Transcontinental Fertilizer Co. v. Samsung Co., 108 F.R.D. 650, 652

(E.D. Pa. 1985).

Relevancy is not limited to the precise issues set out in the pleadings. 

Caruso v. Coleman Co., 157 F.R.D. 344, 347 (E.D. Pa. 1994). Instead, discovery

requests "may be deemed relevant if there is any possibility that the information

[requested] may be relevant to the general subject matter of the action." Id. 

Moreover, discovery need not be confined to items of admissible evidence but

may encompass that which appears reasonably calculated to lead to the discovery

of admissible evidence. Callahan v. A.E.V., Inc., 947 F. Supp. 175, 177 (W.D.

Pa. 1996); Momah v. Albert Einstein Medical Ctr., 164 F.R.D. 412, 417 (E.D. Pa.

1996); Miles v. Boeing Co., 154 F.R.D. 117 (E.D. Pa. 1994). 

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Although "the scope of relevance in discovery is far broader than that

allowed for evidentiary purposes, it is not without its limits." Stabilus v.

Haynsworth, Baldwin, Johnson & Greaves, P.A., 144 F.R.D. 258, 265 (E.D. Pa.

1992) (citations omitted). The court will not permit discovery where a request is

made in bad faith, unduly burdensome, irrelevant to the general subject matter of

the action, or relates to confidential or privileged information. S.S. Fretz, Jr., Inc.

v. White Consol. Indus., Inc., No. 90-1731, 1991 WL 21655, at *2 (E.D. Pa. Feb.

15, 1991); M. Berenson Co. v. Faneuil Hall Marketplace, Inc., 103 F.R.D. 635,

637 (D. Mass. 1984); see generally 8 Charles Alan Wright, et al., Federal Practice

and Procedure §§ 2007-2013 (2d ed. 1990). 

Plaintiff has filed motions and incorporated notices indicating his desire to

undertake depositions by written questions of five (5) correctional officials.

Krushin is requesting leave of Court before proceeding with the depositions. It is

initially noted that the Plaintiff’s requested depositions appear to be a legitimate use

of discovery. However, the notices previously submitted to this Court did not

specify a date, time, or location where the deponents should appear. It has also

not been established that the Plaintiff has tendered payment of the required witness

fees or established that he has sufficient assets to cover the expenses of taking of

multiple depositions by written questions. 

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However, in order to resolve this issue, Plaintiff’s motions will be granted

and he will be granted thirty (30) days from the date of this Order in which to

properly serve notice and schedule the taking of depositions by written question of

the five (5) correctional officials listed above. Krushin is forewarned that he is

solely responsible for the timely payment of all related fees and costs. 

Furthermore, if he fails to timely make all necessary arrangements and pay all

related costs, the five (5) correctional officers are under no obligation to appear

for said depositions. Consequently,

IT IS HEREBY ORDERED THAT:

1. Plaintiff’s motions to take depositions upon written questions 

(Record document nos. 35, 87, 101, 103, 104, 111, and 120)

are granted. 

2. Within thirty (30) days of the date of this Order, Plaintiff may

serve the five (5) correctional officials with notice of 

depositions by written questions. The notices shall specify the

time, place and date of the depositions.

3. Plaintiff is solely responsible for timely payment of all fees and

costs related to the taking of the depositions.

 s/ James F. McClure, Jr. 

James F. McClure, Jr.

United States District Judge

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