Agrizap, Inc. v. Woodstream Corp.

232 F.R.D. 491, 2006 U.S. Dist. LEXIS 1696, 2006 WL 156941
CourtDistrict Court, E.D. Pennsylvania
DecidedJanuary 19, 2006
DocketNo. Civ.A. 04-3925
StatusPublished
Cited by6 cases

This text of 232 F.R.D. 491 (Agrizap, Inc. v. Woodstream Corp.) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Agrizap, Inc. v. Woodstream Corp., 232 F.R.D. 491, 2006 U.S. Dist. LEXIS 1696, 2006 WL 156941 (E.D. Pa. 2006).

Opinion

MEMORANDUM

ROBERT F. KELLY, SR., District Judge.

Presently pending before me is Defendant Woodstream Corporation’s (“Woodstream”) motion to suppress the changes that non-party witness Patrick J. Frape (“Frape”) made to his deposition transcript. For the following reasons, Woodstream’s Motion is granted.1

I. RELEVANT BACKGROUND

The relationship between Plaintiff, Agrizap, Inc. (“Agrizap”) and Woodstream began in 2000. Woodstream contacted Agrizap about the possibility of the two parties entering into a marketing agreement for Agrizap’s Rat Zapper Product. The Rat Zapper is a consumer product that consists of a plastic canister with a metal plate at the bottom and an electrical charge which ultimately kills the rodent. An oral marketing agreement was established between the two parties whereby Agrizap would manufacture and deliver Rat Zappers to Woodstream. The products would use Woodstream labels however.

[492]*492According to the Second Amended Complaint, in early 2004, Agrizap discovered that Woodstream was manufacturing and marketing its own electronic rat trap. Agrizap asserts that confusion in the retail market developed because of Woodstream’s branding of the Agrizap Rat Zapper and because of Woodstream’s newly introduced rat zappers. Agrizap asserts that if this continued, Wood-stream would effectively undermine Agrizap’s ability to sell its goods in the market. Agrizap filed its Second Amended Complaint on April 5, 2005. The Second Amended Complaint contains the following five counts: Violation of California’s Unfair Business Practices Laws & Professions Code (Count I); Breach of an Oral Contract (Count II); Patent Infringement (Count III); Intentional Misrepresentation (Count IV); and Trade Disparagement (Count V).

Woodstream deposed Frape on August 25, 2005 to obtain testimony concerning when Agrizap first began marketing its original electronic rodent killer, known as the “Gopher Zapper.” Frape was employed as an Operations Manager of Agrizap from January 1993 through March 1994. Frape testified Agrizap began offering the Gopher Zapper for sale at least as early as a Long Beach, California trade show, which occurred in February, 1993. Counsel for Agrizap, Mark Neiswender, was present but Frape was not represented by counsel.

On December 1, 2005, three months after his deposition, Frape made three changes to his deposition transcript that are either contradictory or inconsistent with his original testimony. Frape made these changes by including a handwritten note with the reviewed transcript. Frape also hand-wrote the changes into the transcript itself. His changed testimony states that Agrizap did not offer any Gopher Zappers for sale at the Long Beach trade show in February 1993. On December 6, 2005, Woodstream received Frape’s changes, as noted in hold:

Q: And so at this show, you and Bill had boxes of gopher zappers?
A: Yeah.
Q: Did you give any out?
A: No.
Q: Why did you have all these boxes of gopher zappers? Did you offer anything for sale?
Original Answer: I think we were offering them for sale, but I don’t believe we sold any.
Changed Answer: I don’t think we were offering them for sale, and I don’t believe we sold any.
Q: What sale price do you recall offering them at?
Original Answer: The number $80 kinds of rings a bell, but that’s pretty vague, I mean.
Changed Answer: The number $80 kinds of rings a bell for later sales, but that’s pretty vague, I mean.
*l>
Q: At the show, you demonstrated the gopher zapper to people who stopped by the booth, correct?
A: Um-hmm.
Q: And you offered the gopher zapper for sale to people who stopped by the both?
Original Answer: Yeah.
Changed Answer: No.

(Frape Corrected Dep. Tr. 17, lines 6-17; 18, lines 10-18).

The reason Frape gave for his changed testimony was that, “It’s a better representation of my recollection.” (Def.’s Mot. Ex. 1).

II. DISCUSSION

Woodstream argues that Frape’s changes to his deposition violate the procedural aspects of Federal Rule of Civil Procedure 30(e) and should be suppressed. I agree. Rule 30 provides the basic rules for the procedures used in taking depositions by oral examination. Fed.R.Civ.P. 30. Rule 30(e) states:

If 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 [493]*493reasons given by the deponent for making them. The officer shall indicate in the certificate prescribed by subdivision (f)(1) whether any review was requested and, if so, shall append any changes made by the deponent during the period allowed.

Fed.R.Civ.P. 30(e).

Although courts are split over whether to allow substantive changes to a deposition, there is no debate that the procedural requirements of Rule 30(e) must be adhered to.2 “Under the plain language of Rule 30(e) therefore, the deponent or party must request review of the deposition before its completion.” Rios v. Bigler, 67 F.3d 1543, 1551 (10th Cir.1995). Rule 30(e) also references Rule 30(f)(1). “Rule 30(f)(1) specifies that the certificate where such request is noted ‘shall’ accompany the deposition and be filed with the deposition or sent to the attorney who arranged for the transcript or recording.” Id. Therefore, for Frape to make a substantive change to his deposition, a party or Frape must request review of his deposition before its completion, and the officer conducting the deposition must note the request on a certificate, which “ ‘shall be in writing and accompany the record of the deposition.’ ” Id. at 1552 (quoting Fed.R.Civ.P. 30(f)(1)). “If the party or deponent properly requests review, the party or deponent may submit changes to his deposition within [30] days after being notified by the officer that the transcript is available for review.” Id.

The changes Frape attempts to make to his deposition run afoul of Rule 30(e)’s two procedural requirements and, therefore, must be stricken. First, neither Frape nor Agrizap requested the opportunity to review Frape’s deposition.

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Bluebook (online)
232 F.R.D. 491, 2006 U.S. Dist. LEXIS 1696, 2006 WL 156941, Counsel Stack Legal Research, https://law.counselstack.com/opinion/agrizap-inc-v-woodstream-corp-paed-2006.