Summerhouse v. HCA Health Services

216 F.R.D. 502, 2003 U.S. Dist. LEXIS 11832, 2003 WL 21638228
CourtDistrict Court, D. Kansas
DecidedJune 12, 2003
DocketNo. 01-1306-MLB
StatusPublished
Cited by18 cases

This text of 216 F.R.D. 502 (Summerhouse v. HCA Health Services) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Summerhouse v. HCA Health Services, 216 F.R.D. 502, 2003 U.S. Dist. LEXIS 11832, 2003 WL 21638228 (D. Kan. 2003).

Opinion

MEMORANDUM AND ORDER

BOSTWICK, United States Magistrate Judge.

The court now considers defendant’s Motion to Strike Changes to plaintiffs deposition. (Doc. 110.) Defendant Kansas Health-serv, L.L.C. (Wesley) seeks to strike changes made to plaintiff Carla Summerhouse’s deposition under Fed.R.Civ.P. 30(e). Summerhouse filed a response (Doc. 117), and Wesley filed a reply. (Doc. 123.) Wesley’s motion is GRANTED in part, and DENIED in part, for reasons set forth herein.

BACKGROUND

This case centers around a disputed employment contract between plaintiffs late husband, Dr. Dennis Summerhouse, and Wesley. (Doc. Ill at 1-2.) Dr. Summerhouse was employed by Wesley from 1996 until his death in 1998. Id. at 2. Plaintiff brings this action in her capacities as executrix of Dr. Summerhouse’s estate, and as his surviving spouse. Id. at 1-2. The claim largely focuses on Wesley’s alleged failure to honor certain provisions in the contract that apparently required Wesley to increase Dr. Summerhouse’s compensation to match that [504]*504of physicians hired after him, if any such physician was compensated in an amount higher than Dr. Summerhouse. See generally Doc. 1.

On February 14, 2003, Wesley took Ms. Summerhouse’s deposition. (Doc. Ill at 2.) Pursuant to Fed.R.Civ.P. 30(e), plaintiff reviewed the deposition transcript and submitted changes. See id. at 2-3. Some of the changes corrected typographical errors. See id. exh. B at 1. However, at the heart of the present controversy, Ms. Summerhouse appended the following narrative to her deposition errata sheet:

I misspoke the time line regarding Dennis using the terms “MFN” and “OCC”, I am sorry. He never knew those terms; I didn’t know them myself until approximately two years after he died. I regret any confusion this may have caused. Dennis did complain about Wesley; but when he talked about the problems he either talked about “Wesley” or his department. This lawsuit has been going on for three years and I am reminded every day of his death at a relatively young age. Not only only [sic] am I reminded every day of his death but am angered at the way my husband was treated during the last years of his life.
Dennis was upset and angry at Wesley for many reasons; among them the payroll mistakes that were made; having to return to work early after an illness; his 401(k) contributions; his P.E. or P.A.’s were fired and directly effected [sic] his pratice [sic] insofar as his ability to give quality care for his patients and Wesley never responded to his request for mediation, Wesley cut patient flow by limiting the number of patients he could see an hour, shortened office hours and closing the clinic on Saturdays. I took many calls from patients who were upset because they were unable to see their doctor; Wesley made mistakes in his short and long term disability insurance premium deductions which were important considering his illness.
I want to set the record straight and clear up any misunderstanding my testimony may have caused. The only contract Dennis knew specifically was his own.
Any confusion my testimony has caused concerning terms used by my husband or myself is regretted. Any testimony contrary to this correction is withdrawn.

Id. exh. B at 2-4. Rather than specify a particular deposition answer to which this correction applied, Ms. Summerhouse designated it as applicable to twelve pages of deposition testimony. See id. exh. B at 1.

In the present motion, Wesley asks the court to strike plaintiffs changes to her deposition. (Doc. 110 at 1-2.) Wesley asserts that these alterations are beyond the scope of changes permitted under Rule 30(e). (Doc. Ill at 4.) Furthermore, Wesley claims that Ms. Summerhouse failed to follow the procedural requirements under Rule 30(e), and that such failures also merit a decision to strike the changes. Id. at 7.

DEPOSITION CHANGES UNDER FED. R. CIV. P. 30(e)

Fed.R.Civ.P. 30(e) provides:
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 inform 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,

(emphasis added). Although this provision has been amended several times, the language describing the breadth of permitted changes has remained essentially unaltered since adoption of the Federal Rules of Civil Procedure in 1937. See 7 Moore’s Federal Practice § 30App.01 (Matthew Bender 3d ed.). The traditional view adopted by the federal courts has been that Rule 30(e) permitted any changes, regardless of whether they contradicted deposition testimony. See Podell v. Citicorp Diners Club, Inc., 112 F.3d 98, 103 (2d Cir.1997); U.S. ex rel. Burch v. Piqua Eng’g, Inc., 152 F.R.D. 565, 566-67 (S.D.Ohio 1993); Lugtig v. Thomas, 89 [505]*505F.R.D. 639, 641 (N.D.Ill.1981); Allen & Co. v. Occidental Petroleum Corp., 49 F.R.D. 337, 340 (S.D.N.Y.1970); Colin v. Thompson, 16 F.R.D. 194, 195 (W.D.Mo.1954); De Seversky v. Republic Aviation Corp., 2 F.R.D. 113, 115 (E.D.N.Y.1941). In order to mitigate the potential for abuse of such a liberal view, many courts reserved the right to reopen the deposition if the changes were material. See Tingley Sys., Inc. v. CSC Consulting, Inc., 152 F.Supp.2d 95, 120-21 (D.Mass.2001); Burch, 152 F.R.D. at 567; Allen & Co., 49 F.R.D. at 341; Colin, 16 F.R.D. at 195; De Seversky, 2 F.R.D. at 115. This interpretation still appears to represent the majority view in the federal courts.

In recent times, however, a trend has emerged that limits the scope of changes permitted under Rule 30(e). See Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383, 389 (7th Cir.2000) (“a change of substance which actually contradicts the transcript is impermissible unless it can plausibly be represented as the correction of an error in transcription, such as dropping a ‘not.’”); Rios v. Welch, 856 F.Supp. 1499, 1502 (D.Kan.1994); Rios v. Bigler, 847 F.Supp. 1538, 1546-47 (D.Kan.1994); Greenway v. Int'l Paper Co., 144 F.R.D. 322, 325 (W.D.La. 1992); cf. Slowiak v. Land O’Lakes, Inc., 987 F.2d 1293

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Bluebook (online)
216 F.R.D. 502, 2003 U.S. Dist. LEXIS 11832, 2003 WL 21638228, Counsel Stack Legal Research, https://law.counselstack.com/opinion/summerhouse-v-hca-health-services-ksd-2003.