Rowell v. Zamora, et al

Filing 92

ORDER signed by Magistrate Judge Edmund F. Brennan on 10/23/18 GRANTING IN PART 88 Motion for Extension to the extent that he shall have 30 days from the date this order is filed to serve interrogatories - within the limit of 25 per party - on defendants and DENYING in all other respects; and DENYING 89 Motion to amend and for deposition transcript. (Coll, A)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

SEAN LOUIS ROWELL,

12

Plaintiff,

13
14

No. 2:14-cv-1888-KJM-EFB P

v.

ORDER

L.D. ZAMORA, et al.,

15

Defendants.

16
17

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

18

U.S.C. § 1983. He has filed a motion for a thirty day extension of discovery (ECF No. 88) and a

19

motion to amend incorrect statement and for copy of deposition transcripts (ECF No. 89). For the

20

reasons stated hereafter, the first motion is granted in part and the latter is denied.
Motion for Extension of Discovery

21
22

Plaintiff seeks an additional thirty days to serve interrogatories. He claims that, until

23

recently, he labored under the false belief that his interrogatories were due in “September or

24

November.”1 ECF No. 88 at 2. Plaintiff also references health issues and a prison transfer that he

25

claims interfered with his ability to litigate. Id. at 2-3. Finally, he notes a previously-filed request

26

to exceed the interrogatory limit (ECF No. 79) and states that he has been awaiting a decision on

27
28

1

It is unclear if the inclusion of September is an error, given that plaintiff’s motion was
filed on October 5, 2018.
1

1

the same. ECF No. 88 at 2. After plaintiff filed this motion, the court denied his request to

2

exceed the interrogatory limit in a separate order. ECF No. 90. Consequently, plaintiff’s request

3

for an extension is granted only with respect to any interrogatories that fall within the standard

4

limit of twenty-five per party. He shall have thirty days from the date this order is filed to serve

5

them. Any defendants properly served with such interrogatories shall then have thirty days from

6

the date of service to respond. Any motion to compel on the same must be filed within fourteen

7

days of receipt of the responses.

8

Motion to Amend and for Deposition Transcript

9

Plaintiff’s second motion has raises two issues.

10

I.

11

First, he asks that his deposition be amended. Plaintiff states that, under oath and during

Request to Alter Deposition Testimony

12

his deposition, he stated that he had never been treated by defendant Pomzal. ECF No. 89 at 1.

13

He claims that, on some date after the deposition was concluded, he remembered that Pomzal had

14

“shadowed” and supervised one of the other defendants (Abdur Rahman) who had treated him.

15

Id. He wishes to amend his answer to reflect that Pomzal was directly involved in his treatment.

16

While plaintiff will be free at trial or summary judgment to explain or correct in his

17

testimony any previous answer or statement he made in his deposition, he may not under Rule

18

30(e) alter the substance of his deposition testimony. The transcript of what he stated at the

19

deposition will stand as recorded. Rule 30(e) of the Federal Rules of Civil Procedure provides a

20

procedure by which deponents may review their testimony and make changes. The U.S. Court of

21

Appeals for the Ninth Circuit has held, however, that this rule allows only “corrective, and not

22

contradictory, changes.” Hambleton Bros. Lumber Co. v. Balkin Enters., 397 F.3d 1217 (9th Cir.

23

2005). In the wake of Hambleton, other district courts have noted a discrepancy in the

24

application of the Ninth Circuit’s ruling. See Ashcraft v. Welk Resort Group Corp., No. 2:16-cv-

25

02978-JAD-NJK, 2017 U.S. Dist. LEXIS 185470, at *1 (D. Nev. Nov. 8, 2017). In Ashcraft, the

26

court reasoned that “courts should limit Rule 30(e) changes to those correcting stenographic

27

mistakes and, consequently, should bar parties from using Rule 30(e) to change the testimony

28

/////
2

1

actually given.” Id. at *11-12. In so doing, it noted that, in Hambleton, the Ninth Circuit had

2

approvingly quoted a Tenth Circuit holding which stated:

3

The Rule [30(e)] cannot be interpreted to allow one to alter what was
said under oath. If that were the case, one could merely answer the
questions with no thought at all then return home and plan artful
responses. Depositions differ from interrogatories in that regard. A
deposition is not a take home examination.

4
5
6

Hambleton, 397 F.3d at 1225 (quoting Garcia v. Pueblo Country Club, 299 F.3d 1233, 1242 n.5

7

(10th Cir. 2002)). The court finds the reasoning in Ashcraft persuasive and, consequently, will

8

not allow plaintiff to change the answer he gave at his deposition. There is no question that the

9

substitution he now seeks to make is not the correction of a stenographic error, but an alteration

10

of the essential substance of his answer - a “no” to a “yes.” If he was mistaken in an answer and

11

must correct it at trial, he will have the opportunity to explain himself in his trial testimony. But

12

the defense will also have the opportunity to confront him with his deposition testimony as

13

recorded in the transcript.

14

Thus, this ruling is without prejudice to a subsequent affidavit (or other trial testimony)

15

explaining his allegedly erroneous deposition answer and the reasons for his correction. See

16

Lewis v. The CCPOA Benefit Trust Fund, No. C-08-03228-VRW (DMR), 2010 U.S. Dist. LEXIS

17

95739, at * 10 (N.D. Cal. Aug. 27, 2010) (“At any rate, [the deponent] will have a full

18

opportunity to explain his mistaken testimony at summary judgment or at trial. The finder of fact

19

will have the opportunity to decide [the deponent’s] credibility and reliability on the facts in

20

question, and may ultimately decide that he was honestly mistaken about certain facts when he

21

gave his deposition testimony. However, under Ninth Circuit law, contradictory changes are not

22

given the imprimatur and benefit of Rule 30(e) certification.”).

23

II.

24

Second, plaintiff requests that he be provided – free of charge - with a copy of his

Request for a Copy of the Deposition Transcript

25

deposition transcript. This request must be denied. Federal Rule of Civil Procedure 30(f)(3)

26

provides that upon payment of reasonable charges, a party or deponent may obtain a copy of the

27

/////

28

/////
3

1

deposition transcript. Defendants are not required to provide him with a copy free of charge.2

2

See, e.g., Whittenberg v. Roll, 2006 U.S. Dist. LEXIS 14842, at * 13 (E.D. Cal. 2006). And the

3

court is precluded from using its own funds to provide him with a transcript copy. “‘[T]he

4

expenditure of public funds [on behalf of an indigent litigant] is proper only when authorized by

5

Congress.’” Tedder v. Odel, 890 F.2d 210, 211 (9th Cir.1989) (quoting United States v.

6

MacCollom, 426 U.S. 317, 321 (1976)). The expenditure of public funds for deposition

7

transcripts is not authorized by the in forma pauperis statute or any other statute. See 28 U.S.C.

8

§ 1915. Thus, plaintiff – if he is able – may obtain a copy of the transcript upon payment of

9

reasonable charges.

10

Conclusion

11

Based on the foregoing, it is ORDERED that:

12

1. Plaintiff’s motion for extension of time (ECF No. 88) is GRANTED IN PART to the

13

extent that he shall have thirty days from the date this order is filed to serve interrogatories –

14

within the limit of twenty-five per party – on defendants. The motion is denied in all other

15

respects.

16
17

2. Plaintiff’s motion to amend and for deposition transcript (ECF No. 89) is DENIED.
DATED: October 23, 2018.

18
19
20
21
22
23
24
25
26
27
28

2

However, if defense counsel submits a copy in support of a summary judgment motion
or for trial, counsel will be required to serve plaintiff with a copy of all supporting papers filed
with the court.
4