United States ex rel. Burch v. Piqua Engineering, Inc.

152 F.R.D. 565, 1993 U.S. Dist. LEXIS 17167, 1993 WL 505134
CourtDistrict Court, S.D. Ohio
DecidedFebruary 2, 1993
DocketCiv. A. No. C-1-90-745
StatusPublished
Cited by12 cases

This text of 152 F.R.D. 565 (United States ex rel. Burch v. Piqua Engineering, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States ex rel. Burch v. Piqua Engineering, Inc., 152 F.R.D. 565, 1993 U.S. Dist. LEXIS 17167, 1993 WL 505134 (S.D. Ohio 1993).

Opinion

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO SUPPRESS CHANGES TO QUI TAM PLAINTIFFS’ THREE DEPOSITION TRANSCRIPTS

SHERMAN, United States Magistrate Judge.

On Friday, January 8, 1993 the Court heard oral argument on defendant’s motion “to suppress changes to [plaintiffs’ three] deposition transcripts” (doc. 40). See also docs. 51 (plaintiffs’ memorandum in opposition), 53 (defendant’s reply). This opinion memorializes the Court’s oral decision rendered the following Monday, January 11, 1993.

I.

This qui tam action was brought under the False Claims Act, 31 U.S.C. § 3729, et seq., by three former employees of Piqua Engineering, Inc. (“Piqua”). Those employees (qui tam plaintiffs Barbara Burch, Joan Harmon, and Lowell Kissinger) contend that Pi-qua, an Ohio-based weapons supplier to the United States government, defrauded the United States by, inter alia, “falsely certifying] that it complied with contractually required safety and quality standards.” Doe. 43 (second amended complaint) at 2.

On July 15-17, 1992 each of the three qui tam plaintiffs was deposed by defendant. Shortly thereafter, a court reporter submitted copies of plaintiffs’ deposition transcripts to them for their individual signatures. In response, plaintiffs made a total of 111 handwritten changes to the transcripts before signing them. Those handwritten changes are the subject of defendant’s motion.

II.

In support of its motion, defendant argues that: (1) the changes were not made in compliance with Fed.R.Civ.P. 30(e) and should therefore be suppressed; and (2) in the alternative, if the changes are not suppressed, Rule 30(e) should be complied with and, because the additional information (supplied by the changes) renders the depositions incomplete, all three depositions should be reopened. In addition, defendant seeks an award of the fees and costs it already incurred in filing the instant motion, and the fees and costs it will incur in reopening the depositions. For the reasons that follow, the Court agrees, in part, with these contentions.

A

Fed.R.Civ.P. 30(e) provides that:

When the testimony is fully transcribed the deposition shall be submitted to the witness for examination---- Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them.

In the three depositions at issue— each of which occurred in Cincinnati—an independent court reporter, licensed as a notary public in the State of Ohio, administered oaths. Burch depo. at 4; Harmon depo. at 3; Kissinger depo. at 3. That court reporter is thus an “officer” for purposes of Rule 30(e). See Fed.R.Civ.P. 28(a); see also Ikerd v. Lapworth, 435 F.2d 197, 206-07 & n. 4 (7th Cir.1970); Baker v. Ace Advertisers’ Serv., Inc., 134 F.R.D. 65, 73 (S.D.N.Y.1991), dismissed on other grounds, 153 F.R.D. 38 (S.D.N.Y.1992); Perkasie Indus. Corp. v. Advance Transformer, Inc., No. 90-7359, 1992 WL 166042, at *3 1991 U.S.Dist. LEXIS 20374, at *9 (E.D.Pa. June 11, 1992). Recognizing that Rule 30(e) requires all deposition changes be made “by the officer ... [,]” the Court finds the changes made here by qui tam plaintiffs in error. That fact alone does not merit suppressing the changes, however, for Rule 30(e) permits, as noted, “[a]ny changes in form or substance which the witness desires to make ...” (emphasis provided). Thus, under the Rule, changed deposition answers of any sort are permissible, even those which are contradictory of uncon[567]*567vineing, as long as the procedural requirements set forth in the Rule are also followed. Perkasie, 1992 WL 166042, at *2, 1991 U.S.Dist. LEXIS 20374, at *6; Sanford v. CBS, Inc., 594 F.Supp. 713, 714-15 (N.D.Ill.1984); Lugtig v. Thomas, 89 F.R.D. 639, 641 (N.D.Ill.1981). The Court therefore DENIES IN PART defendant’s motion by DECLINING to suppress plaintiffs’ deposition transcript changes, and GRANTS IN PART the motion by ORDERING plaintiffs to comply with Rule 30(e) within fifteen days of their receipt of this Order, to wit: all transcript changes shall be entered upon the depositions by the court reporter, with a statement of the reasons given by the witness for maldng each change. See Lugtig at id. (rejecting, as violative of Rule 30(e), witnesses’ use of deposition correction sheets). All transcript correction costs shall be borne by plaintiffs. Id.

B

Each of the three depositions can be reopened if the transcript changes “make the deposition incomplete or useless without further testimony....” Lugtig, 89 F.R.D. at 642; Perkasie, 1992 WL 166042, at *3, 1991 U.S.Dist. LEXIS 20374, at *10. Such is the case here, for plaintiffs admit that Burch made 18 changes which either add detail to, or contradict, his original answers; and that Harmon and Kissinger made, respectively, 16 and 9 similar changes.1 This substantial number of substantive changes makes each deposition incomplete without further testimony. Compare Perkasie, 1992 WL 166042, at *3—4,1991 U.S.Dist. LEXIS 20374, at *11-12 (finding just one contradicted answer as sufficient grounds to reopen a deposition). The Court therefore GRANTS IN PART defendant’s motion, by ORDERING that all three depositions be reopened within thirty days. Plaintiffs shall pay defendant-counsel’s reasonable costs and fees, including travel expenses, incurred in that regard. In the reopened depositions, defendant’s counsel may ask all questions “which were made necessary by the changed answers, questions about the reasons the changes were made, and questions about where the changes originated....” Lugtig, 89 F.R.D. at 642.

III.

One issue remains: whether defendant should be awarded, as a sanction, the fees and costs its counsel incurred in bringing the instant motion. As the Sixth Circuit has explained,

Under the “American Rule,” awards of attorneys’ fees are not appropriate except when authorized by statute, or by court rules, or if there are exceptional circumstances that justify an exercise of the court’s inherent power____ In all situations in which fees are permitted ... the award is to serve a particular purpose, whether it is protecting the defendant from undue prejudice, sanctioning vexatious conduct, or other reasons.

Spar Gas, Inc. v. AP Propane, Inc., No. 91-6040, 1992 WL 172129, at *2, 1992 U.S.App. LEXIS 17471, at *5-6 (6th Cir. July 22, 1992) (citations omitted; quotations in original). With respect to these three criteria—statutes, court rules, and inherent power—no statute is here relevant, nor does Rule 30(e) explicitly provide for an attorneys’ fee award. Cf. Fed.R.Civ.P. 30(g).

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Bluebook (online)
152 F.R.D. 565, 1993 U.S. Dist. LEXIS 17167, 1993 WL 505134, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-ex-rel-burch-v-piqua-engineering-inc-ohsd-1993.