Opinion
CIVIL ACTION No. 03-2075-CM
April 13, 2004
MEMORANDUM AND ORDER
This matter comes before the court on defendant's Motion to Reopen the Deposition of David Martin and Memorandum in Support (Doc. 52).
Defendant has moved the court for an order reopening David Martin's (Martin) deposition, claiming that Martin materially changed two of his answers to questions from defendant's counsel after reviewing the transcript of his October 8, 2003, deposition. Defendant claims that it desires to obtain the answers to the questions it asked at Martin's deposition as well as Martin's reasons for changing his answers. Plaintiff objects to reopening Martin's deposition, claiming that Martin and plaintiff's counsel have provided defendant the information it seeks. Plaintiff argues that defendant wants to reopen Martin's deposition as an excuse to re-depose Martin. However, plaintiff also noted that, if the scope of defendant's re-examination of Martin is truly limited to the two changes Martin made to his deposition, then plaintiff does not oppose reopening the deposition.
Federal Rule of Civil Procedure 30(e) permits non-material changes to deposition testimony. A change is material if it bears on an essential element of a claim or defense. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). Many courts reserve the right to reopen a deposition if changes made to it are material. Summerhouse v. HCA Health Servs. of Kan., 216 F.R.D. 502, 505 (D. Kan. 2003). Defendant claims that the changes Martin made materially alter his answers so as to render those portions of his deposition incomplete absent further testimony. Plaintiff makes no response to defendant's contention that Martin's changes materially alter his answers.
Having considered the parties' positions, the court will permit defendant to reopen Martin's deposition for the limited purpose of asking Martin about the two changes to his deposition answers and his reasons for changing the answers. The court explicitly prohibits defendant from conducting any other questioning of Martin, including any questions to Martin regarding his January 2004 affidavit submitted in support of plaintiff's opposition to the summary judgment motion.
IT IS THEREFORE ORDERED that defendant's Motion to Reopen the Deposition of David Martin (Doc. 52) is granted. Defendant shall be entitled to reopen the deposition of David Martin for the limited purpose of asking Martin about the two changes to his deposition answers and his reasons for doing so.
IT IS FURTHER ORDERED that, in light of the May trial setting in this case, the deposition shall be limited to one hour and shall occur on or before April 27, 2004.