Williams v. Bell et al

Filing 92

ORDER Overruling Plaintiff's Objections and Denying Motion to Suppress Deposition Transcript re 81 , signed by Magistrate Judge Stanley A. Boone on 6/12/19. 30-Day Opposition Deadline. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOHN WESLEY WILLIAMS,

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Plaintiff,

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v.

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C. BELL, et al.,

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Defendants.

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Case No. 1:16-cv-01584-LJO-SAB (PC)
ORDER OVERRULING PLAINTIFF’S
OBJECTIONS AND DENYING MOTION TO
SUPPRESS DEPOSITION TRANSCRIPT
[ECF No. 81]

Plaintiff John Wesley Williams is appearing pro se in this civil rights action pursuant to 42
U.S.C. § 1983.
On April 29, 2019, Plaintiff filed objections to the lodging of his deposition transcript. On

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May 21, 2019, the Court construed Plaintiff’s objection as a motion to suppress the deposition

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transcript under Federal Rule of Civil Procedure 32(d)(4), and directed Defendants to file a response.

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Defendants filed a response on May 31, 2019.

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I.

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RELEVANT BACKGROUND

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Defendants submit that they took Plaintiff’s deposition on January 29, 2019, at Richard J.

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Donovan State Prison (“RJD”). (Chen Decl. ¶ 2, ECF No. 91). Plaintiff filed a notice of change of

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address on March 20, 2019, indicating that he was transferred to California State Prison-Corcoran

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(CSP-COR). (ECF No. 79.)
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On March 27, 2019, Defendants’ counsel received a letter from Plaintiff requesting a copy of

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his deposition transcript to review and make any necessary changes. (Chen Decl. ¶ 3.) In response,

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counsel contacted the Litigation Coordinator at RJD, and was advised that although it was his

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understanding the transcripts were sent sometime in February, he never received them. (Id. ¶ 4.)

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Counsel also contacted the deposition reporting company, who indicated they sent the transcript to

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Plaintiff twice, but Plaintiff or someone else refused delivery. (Id. ¶ 5.) Counsel also contacted the

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Litigation Coordinator at CSP-COR, who indicated that upon receiving a request from Plaintiff to

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review the transcript, she contacted the reporting company, who indicated they would send a copy to

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provide to Plaintiff. (Id. ¶ 6.)

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On April 12, 2019, Defendants filed a motion for summary judgment, along with excerpts of

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Plaintiff’s deposition transcript. (ECF. No. 82.) At the time the motion for summary judgment was

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filed, defense counsel was aware that Plaintiff had not yet reviewed and signed the deposition

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transcript. (Chen Decl. ¶ 7.) Counsel submits that she did not believe Plaintiff would have corrections

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to the particular excerpts of testimony cited in support of the motion. (Id.) Counsel further believed

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that if Plaintiff had corrections, after reviewing the transcript, those issues could be addressed by the

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Court at a later date. (Chen Decl. ¶ 8.)

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As previously stated, on May 24, 2019, Plaintiff objected to the submission of the deposition

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transcript. Plaintiff states that due to his transfer he was never allowed to review and correct the

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deposition transcript. (ECF No. 85 at 2.) Plaintiff attaches a CDCR Form 22 request for interview,

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dated March 23, 2019, which informed the Litigation Coordinator at RJD that he was transferred to

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CSP-COR before he had a change to review his deposition transcript. (ECF No. 85, Ex. A.) The

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Litigation Coordinator responded stating, “Roxal will forward the transcripts for review, we will

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forward the copy to you.” (Id.)

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To date, Plaintiff has not filed an opposition to Defendants’ motion for summary judgment.

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Defense counsel submits that, on or around May 14, 2019, she learned that Plaintiff refused to accept

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service of a mail package, which presumably contained Defendants’ summary judgment motion.

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(Chen Decl. ¶ 11.) Plaintiff refused to accept the mail package, because he was “dissatisfied with the

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condition of the package as it appeared opened and torn.” (Id.) Plaintiff requested that the package
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“be sent back to the original sender and re-issued the documents, feeling some of the documents could

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be missing due to the packages [sic] condition.” (Chen Decl. ¶ 11, Ex. F.) On May 23, 2019, counsel

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re-served Plaintiff with a copy of Defendants’ summary judgment motion, and informed Plaintiff that

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Defendants would not oppose a request for extension of time, up to June 16, 2019, for Plaintiff to file

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an opposition to the summary judgment motion. (Id. ¶ 12.)

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II.

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DISCUSSION
Federal Rule of Civil Procedure 30(e) permits a deponent to make changes to his deposition

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testimony “in form or substance” provided the deponent (1) requests review of the deposition to make

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corrections, (2) signs a statement listing the changes and the reasons for making them, and (3) submits

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changes within thirty days of receiving notice that the transcript is available. Fed. R. Civ. P. 30(e)(1)-

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(2).

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In order to properly object and suppress the deposition transcript, Rule 32 of the Federal Rules
of Civil Procedure provides:
An objection to how the officer transcribed the testimony—or prepared, signed, certified,
sealed, endorsed, sent, or otherwise dealt with the deposition—is waived unless a motion to
suppress is made promptly after the error or irregularity becomes known or, with reasonable
diligence, could have been known.
Fed. R. Civ. P. 32(d)(4).

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In this instance, it is clear that a copy of the deposition transcript was sent to Plaintiff, but due

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to unforeseen circumstances he has never reviewed it. Defense counsel submits that as of the date of

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filing, she has not received a signed copy of Plaintiff’s deposition transcript, and she does not know

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whether Plaintiff has reviewed the transcript. (Chen Decl. ¶ 9.) Counsel attempted to follow-up with

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Royal on May 1, 2019, and again on May 24, 2019, regarding the status of Plaintiff’s deposition. (Id.)

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On May 24, 2019, Royal advised counsel that they had not yet received back a signed copy. (Id.)

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Royal further indicated that they would send a condensed copy to Plaintiff that day. (Id., Ex. E.)

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Counsel advised that if she received a signed copy of the transcript with changes from the reporting

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company, she will forward it to the Court, along with a Notice of Lodging Plaintiff’s Corrected

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Deposition Transcript. (Id. ¶ 10.)
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The Court has discretion to deal with discovery questions. Pina v. Children’s Place, 740 F.3d

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785, 790-971 (1st Cir. 2014). As stated by Defendants, there is little federal law on the matter of

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failure to sign a declaration. United States v. Garcia, 527 F.2d 473, 475 (9th Cir. 1975). One federal

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District Court in the Federal District of Columbia set forth the following factors to be considered:

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relevance and importance of the testimony; degree to which the evidence is impaired by the failure of

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the witness to review, correct and sign the deposition; and the prejudice to the objecting party.

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Bernstein v. Brenner, 51 F.R.D. 9, 11, 13 (D.D.C. 1970).

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In this instance, Defendants have relied on only six statements of Plaintiff’s testimony from his

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deposition to support their statement of undisputed facts. Specifically, Defendants relied on the

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following testimony: (1) that Plaintiff does not have formal training in medicine, psychology, or

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psychiatry; (2) that his mental health needs fluctuate and change based on how an individual is doing;

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(3) that he arrived at Corcoran State Prison in September 2016; (4) that none of the Defendants were

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on his treatment team; (5) that he has never spoken to Defendant Harris, and other than his role as a

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supervisor, he has no other basis for suing him; and (6) that he has never met Defendant Bell, and

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other than her role as a supervisor, he has no other basis for suing her.

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There is no showing that the evidence is impaired by Plaintiff’s failure to review the deposition

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transcript. It is significant to note that, to date, Plaintiff has not identified any alleged errors or

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inaccuracies in his deposition transcript. Rather, Plaintiff’s argument is limited to the procedural

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deficiency in allowing him to review the deposition transcript. Moreover, the Ninth Circuit has held

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that any Rule 30(e) corrections must be “corrective” not “contradictory” and may be struck under

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certain circumstances. Hambleton Bros. Lumber Co. v. Balkin Enterprises Inc., 397 F.3d 1217, 1225

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(9th Cir. 2005); see also Garcia v. Pueblo Country Club, 299 F.3d 1233, 1242 n.5 (10th Cir. 2002)

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(“The Rule cannot be interpreted to allow one to alter what was said under oath. If that were the case,

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one could merely answer the questions with no thought at all then return home and plan artful

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responses. Depositions differ from interrogatories in that regard. A deposition is not a take home

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examination); Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383, 389 (7th Cir. 2000) (“a change of

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substance which actually contradicts the transcript is impermissible unless it can plausibly be

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represented as the correction of an error in transcription”).
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Lastly, there is no showing of prejudice. As stated, Plaintiff has not yet made corrections to his

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testimony, and the status of his review is presently unknown. However, Defendants submit that if

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Plaintiff wishes to change his testimony, Defendants do not oppose such a request. Counsel submits

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that if she “receives a copy with changes from the reporting company, counsel will immediately

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forward it to the court, along with a Notice of Lodging Plaintiff’s Corrected Deposition Transcript.”

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Therefore, Plaintiff’s motion to suppress the deposition transcript shall be denied, without prejudice.

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III.

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ORDER
Based on the foregoing, it is HEREBY ORDERED that:

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Plaintiff’s motion to suppress the deposition transcript is denied, without prejudice; and

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2.

In the interest of justice, the Court will grant Plaintiff thirty (30) days to file an

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opposition to Defendants’ motion for summary judgment and any corrections he may

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have to the deposition transcript, assuming he has received it to review. However, no

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further extensions of time will be granted absent extraordinary circumstances, not

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present here.

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IT IS SO ORDERED.

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Dated:

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June 12, 2019
UNITED STATES MAGISTRATE JUDGE

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