Thomas v. Antipov et al

Filing 121

ORDER signed by Magistrate Judge Edmund F. Brennan on 7/10/14 denying 115 Motion to Strike transcript. (Dillon, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

JAMAAL THOMAS,

12

No. 2:11-cv-1138-MCE-EFB P

Plaintiff,

13

v.

14

ANTIPOV, et al.,

15

ORDER

Defendants.

16
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

17
18

U.S.C. § 1983. Defendants moved for summary judgment, relying in part, on portions of

19

plaintiff’s February 24, 2012 deposition testimony. ECF No. 112. Plaintiff moves to strike the

20

deposition transcript on the grounds that he was not provided the opportunity to review the

21

transcript and make corrections. ECF No. 115; see Fed. R. Civ. P. 30(e)(1) (upon request,

22

deponent must be allowed thirty days after the deposition transcript is completed to review the

23

transcript and sign a statement listing any changes). Plaintiff explains that despite his numerous

24

attempts to arrange for his review of the transcript with a litigation coordinator and counselor,

25

such a meeting never took place. Plaintiff states that on February 28, 2014, he was finally

26

provided with a copy of the transcript. ECF No. 115-1, ¶ 11. He does not claim that there are

27

any errors or inaccuracies in the transcript.

28

/////
1

1

Plaintiff’s motion to strike the transcript is denied. Although plaintiff’s opportunity to

2

review the transcript appears to have been unreasonably delayed, the delay has not prejudiced

3

plaintiff. See Hollis v. Sloan, No. 2:08-cv-2674-TLN-KJN (Oct. 25, 2012, E.D. Cal.) (“In the

4

absence of any showing of prejudice, the court finds no basis for striking plaintiff’s deposition

5

transcript.”). However, if plaintiff has proposed corrections to his testimony as recorded in the

6

transcript, he may file and serve a list of those corrections with his opposition to defendants’

7

summary judgment motion. Plaintiff may not alter the content of the transcript as it relates to

8

questions asked of him or statements made by others in the deposition, nor may he simply rewrite

9

the essence of his deposition testimony. See id. (requiring that any proposed corrections be

10

“reasonable” without rewriting deposition testimony); Hambleton Bros. Lumber Co. v. Balkin

11

Enters., 397 F.3d 1217, 1225 (9th Cir. 2005) (“While the language of [Rule] 30(e) permits

12

corrections ‘in form or substance,’ this permission does not properly include changes offered

13

solely to create a material factual dispute in a tactical attempt to evade an unfavorable summary

14

judgment.”). The defendants will be free to comment upon any changes to the deposition answers

15

both in their reply brief and, if necessary, at trial. The court will consider plaintiff’s proposed

16

corrections, together with the portions of the transcript submitted by defendants, in evaluating the

17

merits of defendants’ motion.

18

Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion to strike his deposition

19

transcript (ECF No. 115) is denied.

20

DATED: July 10, 2014.

21
22
23
24
25
26
27
28
2