United States District Court, S.D. Georgia, Savannah Division
Sammy Brian Morris-currently incarcerated-filed this case
alleging he was subjected to excessive force when he was
arrested. See doc. 7 (screening the Complaint,
pursuant to 28 U.S.C. § 1915A and approving the
excessive-force claim for service). Because plaintiff is
incarcerated, Defendant Adam Willis has requested an Order
permitting Morris' deposition. See doc. 31;
see also Fed. R. Civ. P. 30(a)(2)(B). Morris has
both responded in opposition to that motion and filed his own
motion for a protective order. See doc. 33 (Motion
for Protective Order); doc. 34 (opposition to defendant's
motion). The time for defendant to respond to plaintiff's
motion for a protective order has not run, but since
plaintiff's motion and his opposition to the deposition
are without merit, any response is moot.
are not generally required to approve parties'
depositions. See Fed. R. Civ. P. 30(a)(1). One
exception to that general rule is when the proposed deponent
is confined in prison. Fed.R.Civ.P. 30(a)(2)(B). Despite
requiring the Court's blessing, the rule requires that
leave to depose an incarcerated person be granted “to
the extent consistent with Rule 26(b)(1) and (2), ”
Fed.R.Civ.P. 30(a)(2); that is, when the information sought
is nonprivileged, relevant, proportional, and not unduly
burdensome. Those general limits on the scope of discovery
are relevant here because Morris asserts that the deposition
will, inevitably, require him to provide information that
would violate his Fifth Amendment privilege against
self-incrimination. See doc. 33 at 1 (expressing
Morris' intent, on advice of his criminal defense
counsel, to “assert the privilege against
self-incrimination under the Fifth Amendment in response to
all substantive questions.”); doc. 34 at 1 (same).
plaintiff's motion and his opposition to defendant's
request for leave omit any citation to authority. See
generally docs. 33 & 34. Had plaintiff's counsel
consulted the relevant authorities, he would likely have
found the following, in a prominent treatise on federal civil
If a deposition is sought, the availability of the privilege
[against self-incrimination] is not a ground for vacating
the notice of the deposition. The proper procedure
is for the deponent to attend the deposition, to be sworn
under oath, and to answer those questions he or she can
answer without running a risk of incrimination. In this
way a record can be made and the court can determine whether
particular questions asked did entitle the deponent to claim
8 Charles Alan Wright, Arthur R. Miller, et al. Fed.
Prac. & Proc. Civ. § 2018 (3d ed. 2019) (emphasis
added). Judicial opinion is similarly skeptical of such
generalized assertions of privilege. See Sec. & Exch.
Comm'n v. First Fin. Grp. of Tx., Inc., 659 F.2d
660, 668 (5th Cir. 1981) (“[A] blanket assertion of the
privilege [against self-incrimination] is insufficient to
relieve a party of the duty to respond to questions put to
him, ” indeed, “‘even if the danger of
self-incrimination is great, (the party's) remedy is not
to voice a blanket refusal . . . to testify . . . [,
i]nstead, he must present himself . . . for questioning, and
as to each question . . . elect to raise or not to raise the
defense.'” (quoting United States v.
Roundtree, 420 F.2d 845, 852 (5th Cir.
the unequivocal recognition that a litigant's Fifth
Amendment privilege is not a general shield against civil
discovery, and the fact that plaintiff's own Complaint
indicates the likelihood that he has relevant information,
the Court GRANTS Willis' motion. Doc.
31. Chatham County Detention Center shall make plaintiff,
Sammy Brian Morris, available for deposition in the manner in
which other depositions are generally held. For the reasons
explained above, Morris' motion for a protective order is
since plaintiff's incarceration does not significantly
affect his discovery obligations, a scheduling conference is
not warranted at this time. Plaintiff's request for such
a conference is DENIED. Doc. 33. Since
counsel has now appeared on plaintiff's behalf, however,
this action no longer appears exempt from general civil
discovery procedures. See Fed. R. Civ. P.
26(a)(1)(B)(iv). Counsel are, therefore,
DIRECTED to confer, pursuant to Fed.R.Civ.P.
26(f) and Judge Baker's standing Orders, within 21 days,
and file the required report. That report may include the
parties' position or respective positions on the need for
a further court-facilitated scheduling conference.
 Although the Fifth Circuit's
opinion, which was entered on October 21, 1981, is not
binding precedent, it remains persuasive authority. See
Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th
Cir. 1981) (adopting, as binding precedent in the Eleventh
Circuit, all decisions of the Fifth Circuit handed down prior
to September 30, 1981). Consistent with the treatise's
summary, however, the Eleventh Circuit takes a similarly dim
view of “blanket” assertions of privilege.
See United States v. Twenty-Nine Pre-Columbian &
Colonial Artifacts from Peru, 695 Fed.Appx. 461, 467
(11th Cir. 2017) (citing Roundtree, 420 F.2d at 852)
(discussing a district court's order “[f]ollowing
well-established law” that “Fifth Amendment
concerns, even if legitimate, ” do not preclude
testimony in a civil deposition).
 The Clerk is DIRECTED
to serve Judge Baker's standing civil instructions and
orders on all counsel who have ...