Morgan v. CA Dept of Corrections and Rehabilitation, et al.,

Filing 48

ORDER signed by Magistrate Judge Kendall J. Newman on 7/8/11 DENYING 40 Motion to suppress deposition transcript; Within 21 days of the date of this order, plaintiff shall be allowed to review the deposition transcript under the conditions set forth in this order. (Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TYRONE MORGAN,

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Plaintiff,

No. 2: 09-cv-2155 WBS KJN P

vs.
JOHN W. HAVILAND, et al.,
Defendants.

ORDER
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Pending before the court is plaintiff’s June 2, 2011 motion to suppress his

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deposition transcript. Plaintiff argues that the transcript should be suppressed because he was not

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allowed to spend thirty days reviewing it. For the following reasons, this motion is denied.

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Plaintiff’s declaration attached to his reply to defendants’ opposition describes his

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version of events. Plaintiff alleges that on April 22, 2011, he was deposed by defense counsel.

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Plaintiff alleges that on May 16, 2011, he was called to the office of Correctional Counselor

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(“CC”) Racklin. Plaintiff claims that CC Racklin told him that he wanted plaintiff to sign some

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paperwork. Plaintiff noticed that the paperwork was his deposition transcript. Plaintiff claims

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that he told CC Racklin that he had a right to “get” thirty days to review the transcript. CC

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Racklin then allegedly read to plaintiff a memorandum from the litigation coordinator stating that

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plaintiff was to “just sign it.” Plaintiff told CC Racklin that he would not sign anything without
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reviewing it. Plaintiff claims that CC Racklin told him that he would call the Litigation

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Coordinator and tell her what plaintiff said about his right to thirty days to review the transcript

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then call plaintiff back to his office. Plaintiff claims that he did not hear back from CC Racklin.

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Federal Rule of Civil Procedure 30(e) provides,

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(1) On request by the deponent or a party before the deposition is
completed, the deponent must be allowed 30 days after being
notified by the officer the transcript or recording is available in
which :

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(A) to review the transcript or recording; and
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(B) if there are changes in form or substance, to sign a statement
listing the changes and the reasons for making them.

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

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As noted by defendants in their opposition to the pending motion, Federal Rule of

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Civil Procedure Rule 30(e) only entitles plaintiff, upon request, to review and suggest changes to

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a deposition transcript within thirty days after it becomes available. In other words, Rule 30(e)

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does not grant plaintiff thirty days to actually possess the deposition transcript in order to review

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it.

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Defendants also dispute plaintiff’s representations regarding what occurred during

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his meeting with CC Racklin. In his declaration attached to the opposition, CC Racklin states

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that plaintiff began reading the transcript in his office then requested that he be permitted to

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remove the transcript so that he could review it in his cell or the day-room. CC Racklin states

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that he told plaintiff that he would have to review the transcript in his office. Plaintiff then

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allegedly told Racklin that he needed at least 8 hours to read the transcript and that he should

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receive a copy as attorney of record. Plaintiff then allegedly chose to stop reviewing the

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transcript and left the office.

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Giving plaintiff the benefit of the doubt, it appears that his refusal to review the

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transcript was based on his mistaken belief that under Federal Rule of Civil Procedure 30(e) he

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had thirty days to actually review the transcript. For this reason, the motion to suppress is
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denied. However, defendants are directed to allow plaintiff another opportunity to review the

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transcript.

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While Federal Rule of Civil Procedure 30(e) does not describe the conditions

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under which a party is allowed to review a transcript, the amount of time certainly must be

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reasonable. Defendants shall allow plaintiff two hours to review the transcript. In addition,

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plaintiff’s review of the transcript shall take place in either the office of CC Racklin or the

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Litigation Coordinator.

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Finally, regarding plaintiff’s suggestion that he should be given a copy of the
transcript for his own records, while plaintiff has been accorded in forma pauperis status in this

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action, thus entitling plaintiff to pay the full filing fee over time, 28 U.S.C. § 1915(b), this

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determination does not waive costs associated with this litigation, including the cost of plaintiff's

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deposition transcript. See, e.g., Tabron v. Grace, 6 F.3d 147, 159 (3rd Cir. 1993), and cases cited

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therein; accord, Tuvalu v. Woodford, 2006 WL 3201096 (E.D. Cal. 2006). If plaintiff wants a

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copy of the transcript for his own records, he will have to pay for it.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion to suppress his deposition transcript (Dkt. No. 40) is denied;

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2. Within twenty-one days of the date of this order, plaintiff shall be allowed to

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review the deposition transcript under the conditions set forth above.

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DATED: July 8, 2011

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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mo2155.dep

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