Reilly v. Txu Corp.

230 F.R.D. 486, 62 Fed. R. Serv. 3d 855, 2005 U.S. Dist. LEXIS 40918, 2005 WL 2030284
CourtDistrict Court, N.D. Texas
DecidedAugust 15, 2005
DocketCivil Action No. 3:05-CV-0081-R
StatusPublished
Cited by22 cases

This text of 230 F.R.D. 486 (Reilly v. Txu Corp.) is published on Counsel Stack Legal Research, covering District Court, N.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Reilly v. Txu Corp., 230 F.R.D. 486, 62 Fed. R. Serv. 3d 855, 2005 U.S. Dist. LEXIS 40918, 2005 WL 2030284 (N.D. Tex. 2005).

Opinion

ORDER

RAMIREZ, District Judge.

Pursuant to the District Court’s Scheduling Order, filed February 10, 2005, all pleading and discovery disputes and other non-dispositive motions are automatically referred to the undersigned U.S. Magistrate Judge for disposition. Before the Court is Pleading/Discovery Dispute No. 1 — Defendants’ Objections to and Motion to Strike Plaintiffs Deposition Corrections, filed June 2, 2005. Also before the Court is Plaintiffs Response to Pleading/Discovery Dispute No. 1 — -Defendants’ Objections to and Motion to Strike Plaintiff’s Deposition Corrections, filed June, 2005. A hearing was held on the record on June 15, 2005. After consideration of the pleadings, evidence, oral argument, and applicable law, the Court determines that the motion should be, and it is hereby, DENIED, in part, and GRANTED, in part.

I. BACKGROUND

John Gregory Reilly (“Plaintiff’) brought suit against TXU Corporation and TXU Business Services Company (“Defendants”) on January 12, 2005, alleging race discrimination and retaliation pursuant to 42 U.S.C. § 1981. (Mot. at 2.) The Court entered its Scheduling Order on February 10, 2005, setting the discovery deadline and the deadline for Defendants to submit their motion for summary judgment as June 10, 2005. Id. Defendants deposed Plaintiff on April 6, 2005. Id. Plaintiff was represented by his counsel of record at the deposition. Id. The deposition was administered and recorded by an officer authorized to administer oaths pursuant to Fed.R.Civ.P. 28(a). Id. At Plaintiffs request, the court reporter mailed the original deposition transcript to Plaintiff for review on April 20, 2005. (Resp. at 1.) Plaintiff signed his deposition and an errata sheet amending his deposition testimony pursuant to Fed.R.Civ.P. 30(e) on May 18, 2005. (Mot. at 2.) Plaintiffs errata sheet contained 111 changes to his deposition. (App. to Mot. at 4-10.) Plaintiff gave “typographical” as the reason for 4 of the changes and “clarification” as the reason for the remaining 107 changes. Id. While some of the changes corrected typographical and transcriptional [487]*487errors, other changes more substantively altered the original deposition testimony. For example, in more than one instance, Plaintiff changed a “no” response to a “yes” response. Id. On May 23, 2005, Plaintiff mailed a copy of the errata sheet to Defendants and mailed the original deposition transcript and errata sheet to the court reporter. (Resp. at 1.) Defendants filed the instant motion to strike Plaintiffs deposition corrections on June 2, 2005. Plaintiff filed his response to Defendants’ motion on June 13, 2005.

II. ANALYSIS

Defendants seek to strike Plaintiffs deposition corrections, claiming that the changes constitute an “impermissible abuse” of Federal Rule of Civil Procedure 30(e) because they contradict, change, and add to Plaintiffs previous testimony. (Mot. at 1.) Furthermore, Defendants contend that Plaintiff made such changes in order to create issues of fact and avoid an unfavorable summary judgment ruling. (Mot. at 11.) Plaintiff acknowledges that he made changes of form or substance to his deposition. (Resp. at 2.) However, he argues that Rule 30(e) allows such changes, “especially in cases where the changes are made before any party files a dispositive motion, as in this case.” Id.

Federal Rule of Civil Procedure 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 reasons 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). The language of the Rule places only two restrictions on changes to a deposition: 1) the changes must be made within 30 days after notification that the transcript is available for review, and 2) the deponent must give reasons for changes “in form or substance.” Defendants do not dispute the timeliness of Plaintiffs corrections, nor contend that Plaintiff failed to give reasons for his changes. Instead, Defendants argue that courts have interpreted Rule 30(e) as setting implicit limits on the scope of corrections authorized under the rule. (Mot. at 2.)

The Fifth Circuit has not addressed the scope of permissible substantive corrections to a deposition under Rule 30(e). Other circuit courts and federal district courts, including courts within the Fifth Circuit, have varied in their approaches to allowing deposition corrections pursuant to Rule 30(e). The Court addresses these various approaches in turn.

A. Narrow Reading of Rule 30(e)

Defendants urge the Court to follow the line of cases which interpret Rule 30(e) narrowly to limit permissible changes to a deposition in the interest of preventing abuse.

The case cited most frequently as advocating a narrow interpretation of Rule 30(e), and the one upon which Defendants rely, is Greenway v. Int'l Paper Co., 144 F.R.D. 322 (W.D.La.1992). In Greenway, the plaintiff made 64 changes to her deposition, including, as in this ease, changing answers of “no” to “yes” and providing lengthy additions to other answers. Id. at 323-324. The defendants moved to suppress the changes on the basis that the changes “exceeded the bounds permitted by Federal Rule of Civil Procedure 30(e).” Id. at 323. The Greenway court held, without citation to any authority, that the obvious purpose of the Rule is to permit only the correction typographical and transcriptional errors. The Greenway court further stated:

The Rule cannot be interpreted to allow one to alter what was said under oath. If that were the case, one could merely answer the questions with no thought at all then return home and plan artful responses. Depositions differ from interrogatories in that regard. A deposition is not a take home examination.

Id. at 325. Because some of the plaintiffs changes did more than correct these types of errors, the court ordered all changes made to the plaintiffs deposition testimony deleted. Id.

[488]*488The narrow interpretation of Rule 30(e) set forth in Greenway has been characterized as a recent trend, as well as a “growing minority view.” See Summerhouse v. HCA Health Serv., 216 F.R.D. 502, 505-06 (D.Kan.2003); see

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Bluebook (online)
230 F.R.D. 486, 62 Fed. R. Serv. 3d 855, 2005 U.S. Dist. LEXIS 40918, 2005 WL 2030284, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reilly-v-txu-corp-txnd-2005.