Opinion
Civil No: 01CV1835-L(JFS)
November 1, 2002
ORDER DENYING DEFENDANT TERADYNE'S MOTION TO STRIKE CHANGES TO THE DEPOSITION TESTIMONY OF ROBERT G. COPELAND
I. INTRODUCTION
On August 26, 2002, Teradyne, Inc., (Teradyne) filed the instant motion seeking that the Court strike changes to Robert G. Copeland's (Copeland) sworn deposition testimony. Teradyne claims that Federal Rule of Civil Procedure 30(e) does not permit parties or deponents to change their deposition testimony unless it is to correct a stenographic error made during transcription.
Plaintiffs Robert Herring, Sr., Robert Herring, Jr., and Charles Herring (collectively the Herrings) filed their opposition to Teradyne's motion to strike on September 10, 2002. The Herrings argue that the majority view controls, holding that parties and witnesses can make any changes to deposition testimony as long as the changes are made in conformity with the "plain language" of Rule 30(e).
For the reasons contained herein, the Court DENIES Teradyne's motion to strike changes to Robert G. Copeland's sworn deposition testimony.
II. BACKGROUND
In June 2000, the Herrings owned Herco Technology Corporation (Herco). Robert Herring, Sr., also owned Perception Laminates, Inc., dba Synthane Taylor (collectively Herco and Perception Laminates are referred to as the Herring Companies). In June 2000, Teradyne initiated negotiations with the Herrings to purchase the Herring Companies. Teradyne was represented in the transaction by Testa, Hurwitz Thibeault (THT). William B. Asher was acting lead counsel for THT in the merger negotiations. The Herrings retained Luce Forward, Hamilton Scripps, LLP (Luce Forward) to represent them in the merger transaction. Mr. Copeland was acting lead counsel for Luce Forward in the merger negotiations.
The parties executed merger agreements and closing occurred on August 15, 2000. Both parties made numerous representations to each other that were memorialized in the merger agreements. Included in those representations, the parties expressly agreed to indemnify each other for any breaches of any of the warranties and representations set forth in the merger agreements.
Subsequent to the closing of the merger agreements, the Herrings filed suit against Teradyne. The Herrings suit asserted: 1) securities fraud under the California Corporations Code; 2) intentional misrepresentation; 3) negligent misrepresentation; and 4) breach of the merger contracts entered into by the parties. See generally Doc. No. 40.
Procedurally, Plaintiffs first filed suit in the Superior Court of California. On October 9, 2001, Teradyne filed a motion to remove the case to this Court based on diversity jurisdiction. See Doc. No. 1 at 2. On October 12, 2001, the Herrings filed a first amended complaint. Subsequently, Teradyne filed a motion to dismiss the complaint which Judge Lorenz granted in part on January 28, 2002. On March 4, 2002, the Herrings filed their second amended complaint to which Teradyne filed an answer on March 25, 2002.
On June 4, 2002, this Court issued an order setting certain discovery, hearing and briefing dates. In relation to the instant suit, and specifically relating to the issues addressed in motions pending before Judge Lorenz, Teradyne examined Mr. Copeland on or about July 22, 2002. Subsequently, within thirty days of the transcript being prepared, Mr. Copeland made two changes to his deposition testimony pursuant to Rule 30(e) of the Federal Rules of Civil Procedure. Mr. Tim Pestotnik, Plaintiffs' Counsel, sent a letter to Mr. Jordan Hershman, Defense Counsel, on August 19, 2002, in which Mr. Pestotnik explained that Mr. Copeland made changes to his deposition testimony to clarify said testimony. See Doc. No. 51, Exhibit 4 at 3. On August 26, 2002, Teradyne filed the instant motion to strike these changes to Mr. Copeland's sworn deposition testimony. On September 10, 2002, the Herrings filed their opposition to Teradyne's motion to strike. On October 29, 2002, the Court held oral argument on the instant motion.
III. DISCUSSION
A. STANDARD OF LAW
Rule 30(e) reads, in pertinent part, that:
[i]f requested by the deponent or a party before completion of the deposition, the deponent shall have 30 days after being notified by the officer that the transcript or recording is available in which to review the transcript or recording and, if there are changes in form or substance, to sign a statement reciting such changes and the reasons given by the deponent for making them.
Fed.R.Civ.P. 30(e). Although the Ninth Circuit has not addressed the application of Rule 30(e) regarding the purposes for which changes to deposition testimony may be made, "[t]he majority approach holds that Rule 30(e) does not limit the types of changes a deponent may make to his or her deposition transcript." Pepsi-Cola Bottling Company of Pittsburgh, Inc. v. PepsicQ. Inc., WL 511506 *2 (D. Kan. 2002). Under the majority approach, "courts apply a broad reading to Rule 30(e)'s language, which permits deponents to make "changes in form or substance' and to "append any changes made by the deponent' to the filed transcript. Id.; see also Wright, Miller Marcus, Federal Practice and Procedure: Civil 2d § 2118. Additionally, although Rule 30(e) requires parties seeking to change deposition testimony to supply reasons for such changes, Rule 30(e) does not mandate that courts examine the "sufficiency, reasonableness, or legitimacy of the reasons given for the changes." Id.; see also Lugtig v. Thomas, 89 F.R.D. 639, 641 (N.D. Ill. 1981) (holding that deponents are permitted to make changes to their deposition testimony in order to eliminate the likelihood of deviations between the deposition testimony and the trial testimony); but see Brooks v. City of Turlock, WL 540281 (9th Cir. 1993) (unpublished opinion) (holding that a district judge has discretion, when ruling on a motion for summary judgment, to disregard changes made to a witness's deposition testimony if the reasons for the changes to the testimony are baseless). It is enough that deponents seeking to change their deposition testimony comply with the requirements of Rule 30(e) for the changes to become part of the record. See Lugtig, 89 F.R.D. at 641 (holding that the party wishing to invoke the privilege accorded deponents by Rule 30(e) must comply with the instructions which the rule gives for making changes to a deponent's deposition testimony).
When a party or deponent makes changes pursuant to rule 30(e), the "deponent's original answer should be admitted into evidence . . . with the deponent `of course . . . free to introduce the amended answer and explain the reasons for the change.'" Podell v. Citicorp Diners Club, Inc., 112 F.3d 98, 103 (2nd Cir. 1997) (citation omitted); see also Wright, Miller Marcus, Federal Practice and Procedure: Civil 2d § 2118.
B. ANALYSIS
Teradyne filed the instant motion seeking to strike two changes Mr. Copeland made to his deposition testimony. In the first challenge, Mr. Copeland's original deposition read:
Q: But Section 11.02(c) is addressed to the claims the Herrings would make asserting breach of representations made by Teradyne, correct?A: Yeah, I think that's correct
Subsequently, pursuant to Rule 30(e), Mr. Copeland changed his answer to read:
Revised Answer: Yeah, I think that's correct to the extent it is for indemnification.
Teradyne also objects to a second change Mr. Copeland made to his deposition testimony pursuant to Rule 30(e). Mr. Copeland's deposition testimony regarding an entirely different subject read:
Q: So isn't it true that you understood at the time you looked at Section 11.01 contained in the draft version that is marked Exhibit 4, that even though it didn't expressly use the word "claim," you understood that is had to do with the making of claims?
A: Yeah, I was concerned as to its being a very nebulous formulation for claims-making kind of language, and that was my concern with it.
Mr. Copeland then changed his answer to read:
Revised Answer: Yeah, I was concerned as to its ( the second sentence) being a very nebulous formulation for claims-making kind of language, and that was my concern with it.
Teradyne argues that both of these changes should be stricken from the record because they are changes made in violation of Rule 30(e). Teradyne asserts that the modern trend is to read Rule 30(e) not to permit deponents from making substantive changes to their deposition transcripts. Teradyne contends that the Court should read Rule 30(e) to permit "changes to the transcript only where the stenographer has made a transcription error." Doc. No. 51 at 4, ln. 18-19 (emphasis in original). Teradyne urges the Court to adopt the minority view expressed in Greenway v. International Paper Co., 144 F.D.R. 322 (W.D. La. 1992). In Greenway, the court stated that if parties were allowed to freely change their testimony, then "one could merely answer the questions with no thought at all then return home and plan artful responses." Greenway, 144 F.D.R. at 325. Teradyne adduces that the view expressed in Greenway, represents the modern interpretation of Rule 30(e), designed to prevent abuses of the discovery process.
Teradyne concludes by arguing that because the changes made were in an attempt to "clarify" Mr. Copeland's answers and not to correct stenographic errors in transcription, they are beyond the scope of changes permitted by Rule 30(e).
The Herrings counter that " [n]owhere does [Rule 30(e)] limit the deponent to changes `only where the stenographer made a transcription error.'" Doc. No. 59 at 4. The Herrings assert that the "vast majority of federal courts apply the Rule just as written and permit a witness to make any changes the witness deems necessary together with a statement of reasons for the changes." Id. Basically, the Herrings advocate that the "plain language" of Rule 30(e) should control, rather than a narrow interpretation that would only permit changes under very limited circumstances. See Deloach v. Philip Morris Companies, Inc., 206 F.D.R. 568, 573 (M.D.N.C. 2002) (holding that reading Rule 30(e) to permit only transcription errors is too narrow given the case law and the plain language of the rule).
The Herrings argue that the instant case can be distinguished fromGreenway in several significant aspects. In Greenway, the Court dealt with a deponent who made "64 substantial changes to her deposition testimony." Doc. No. 59 at 7. Further, the deponent in that case took the exact opposite position in many of her revised answers than she did in her original deposition answers.
"Some examples include instances in which the deponent changed her answer from `No sir' to `Yes sir.'" Doc. No. 59 at 7 (citing Greenway, 144, F.R.D. at 323)
In the present case, Mr. Copeland made only two changes to his deposition. Neither of those changes sought to reverse his position on the answer. Rather, as evidenced in the August 19, 2002 letter sent by Mr. Pestotnik, Plaintiffs' Counsel, to Mr. Hershman, Defense Counsel, Mr. Copeland changed his deposition answers in order to "clarify" his recorded deposition. See Doc. No. 51, Exhibit 4 at 5. In Deloach, the court also dealt with a motion to strike two changes made that sought to clarify a party's deposition. Deloach, 206 F.R.D. at 572. In that case, the court denied the motions to strike holding that the plain language of Rule 30(e) permits a party to make changes which seek to clarify a recorded deposition. Id. at 573.
Although the Court acknowledges Teradyne's assertion that Rule 30(e) should be read to prevent abuses of the discovery process as a valid argument, the Court finds that the factual situation presented by the instant case does not constitute such an attempted abuse.
Additionally, there are two remedies available to attorneys who are faced with a deponent who change his/her answers after their deposition is complete. First, counsel can attempt to impeach a witness at trial based on the changes he/she makes to his/her deposition transcript. Doc. No. 59 at 7; see Lugtig, 89 F.R.D. at 642 (stating that attorneys can impeach a witness who changes their answers after the deposition is complete); see also Deloach, 206 F.R.D. at 570 (stating that a witness who changes his testimony on a material matter between the giving of his deposition and his appearance at trial may be impeached by his former answers). Consequently, Teradyne can attempt to impeach Mr. Copeland for the changes he made to his deposition testimony.
The Court recognizes that this remedy is only available if the case reaches the trial phase. However, as noted in Brooks, WL 540281 (9th Cir. 1993) (unpublished opinion), the Court has the discretion to disregard changes made to deposition testimony in ruling on motions for summary judgment.
Second, Teradyne can seek to reopen the examination of Mr. Copeland in order to further investigate any ambiguity that Mr. Copeland might have created by changing his answers. see Lugtig, 89 F.R.D. at 642 (stating that if changes made pursuant to Rule 30(e).make the deposition useless or incomplete without further testimony, the party who took the deposition can reopen the examination); see also Deloach, 206 F.R.D. at 570 (stating that deposing parties can reopen a deponent's examination if the changed answers render the deposition useless or incomplete without additional testimony). Hence, Teradyne can move the Court to reopen Mr. Copeland's deposition examination in order to question him on the changes he made to his deposition testimony.
Because: 1) Mr. Copeland complied with the plain language of Rule 30(e); 2) Mr. Copeland made only two changes to his deposition testimony; 3) Mr. Copeland's changes were only intended to clarify his original deposition answers; 4) Teradyne can still attempt to impeach Mr. Copeland with the changes he made to his deposition testimony; and 5) Teradyne can seek to reopen the examination of Mr. Copeland, the Court FINDS Teradyne fails to show that the changes to Mr. Copeland's deposition testimony warrant being stricken from the record.
Teradyne has not asserted that Mr. Copeland did not comply with the "plain language" requirements set forth in Federal Rule of Civil Procedure 30(e).
IV. CONCLUSION
For the reasons set forth above, the Court DENIES Teradyne's motion to strike Changes to Robert G. Copeland's sworn deposition testimony.