Opinion
Civil Action No. 03-3579 Class Action.
June 24, 2004
ORDER AND OPINION
I. Introduction
In this case, the plaintiff, Eugenia Buzoiu, was deposed for a second time after producing an errata sheet to her first deposition that made substantive changes in key points of her testimony. Subsequently, Buzoiu's motion for class certification was denied on the basis that the credibility issues raised by the discrepancies between the two depositions (as well as a certain inherent unbelievability in some of her explanations for these discrepancies) made her an unsuitable class representative.
Defendant Risk Management Alternatives, Inc., ("RMA") has now moved to recover from Buzoiu its attorney's fees and costs in connection with the second deposition. RMA also asks that it be permitted to make use of Buzoiu's inconsistent deposition testimony and her errata sheet at trial. For the reasons set forth below, I will grant RMA's motion to use this material at trial, but deny its motion for fees and costs.
II. Legal Standards
Federal Rule of Civil Procedure 30(e) provides that a deponent may review the transcript of her deposition and sign a statement setting forth changes "in form or substance," and giving the reasons for each change. Any changes are to be attached to the deposition. Id.
The purpose of this rule is generally understood to be for correcting transcription errors. Nevertheless, because the rule permits changes "in substance", deponents are usually allowed to make even material changes in their testimony. Titanium Metals Corp. v. Elkem Management, Inc., 191 F.R.D. 468, 472 (W.D. Pa. 1998), citing 8A Charles A. Wright, Arthur R. Miller Richard L. Marcus, Federal Practice Procedure, § 2118, at 134 (1994). In such cases, however, the original answers remain in the record so that "the witness who changes his or her testimony on a material matter between the giving of the deposition and appearance at the trial may be impeached by the former answers."Id.
Although Rule 30(e) does not specifically require or permit this, some courts, including the Eastern District of Pennsylvania, have permitted re-deposition at the deponent's expense where she has made changes which make the original deposition incomplete or useless. Perkasie Industries, Corp. v. Advance Transformer, Inc., Civ. A. No. 90-7359, 1992 WL 166042 at *3-4 (E.D. Pa. June 11, 1992), citing Lugtig v. Thomas, 89 F.R.D. 639 (N.D. Ill. 1981), Sanford v. CBS, Inc., 594 F. Supp. 713 (N.D. Ill. 1984), and Colin v. Thompson, 16 F.R.D. 194 (W.D. Mo. 1954). The Perkasie court pointed out: "there is no value to a deposition if the answer `no' is thereafter changed to `yes.'" Id., citing DeSeversky v. Republic Aviation Corp. 2 F.R.D. 113, 115 (E.D.N.Y. 1941).
III. Discussion
The changes Buzoiu made to her testimony were of the same sort as those in Perkasie, which rendered her former deposition useless by changing "no" answers to "yes." I believe, therefore, that, like the judge in Perkasie, it is within my discretion to order Buzoiu — as the party who made the further examination necessary — to pay RMA's fees and expenses.
Nevertheless, I will not do so. Unlike the plaintiff inPerkasie, Buzoiu is an individual. Moreover, it is clear from the facts of record in this case that she is burdened by consumer debt which she cannot pay. It is also of record that Buzoiu is a single mother who has a history of employment at and near the minimum wage. She has already been through a personal bankruptcy.See In Re Eugenia Buzoiu, Bankruptcy No. 00-334414 SR (October 3, 2001 Opinion), attached as Exhibit B to Buzoiu's Response.
On these facts, there appears to be little point in burdening Buzoiu with yet another debt she will not be able to pay, in order to reimburse RMA, a fairly large corporation, for obtaining testimony which was ultimately of great use to it in obtaining the dismissal of Buzoiu's class claims. If Buzoiu recovers in her individual case, I would be willing to revisit this issue. Until then, however, granting RMA's motion for fees and costs would be a useless exercise, and, in my discretion, I will deny it.
I will, however, grant RMA's request that it be permitted to cross-examine Buzoiu regarding inconsistencies in her deposition testimony. It is clear that RMA's right to do so is a corollary of Buzoiu's right to make material changes to her deposition testimony under Rule 30(e). See, Titanium Metal, and material cited therein. An appropriate Order follows:
ORDER
AND NOW, this 24th day of June, 2004, upon consideration of Defendant's Motion for Fees and Costs And to Permit The Use of Plaintiff's Deposition Transcripts And Errata Sheet at Trial, docketed in this case as Document No. 31, and Plaintiff's Response thereto, docketed in this case as Document No. 37, it is hereby ORDERED that the motion is GRANTED IN PART and DENIED IN PART:
1. Defendant's Motion is GRANTED in that it will be permitted to use Plaintiff's deposition transcripts and errata sheet at trial;
2. Defendant's Motion for Fees and Costs is DENIED without prejudice to its right to raise this matter again upon Plaintiff's recovery of damages in this action.