In re Google RTB Consumer Privacy Litigation

Filing 724

ORDER re 652 Discovery Dispute re Transcript Errata. Signed by Magistrate Judge Virginia K. DeMarchi on 7/8/2024. (vkdlc1, COURT STAFF) (Filed on 7/8/2024)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 8 9 10 IN RE GOOGLE RTB CONSUMER PRIVACY LITIGATION Case No. 21-cv-02155-YGR (VKD) ORDER RE DISCOVERY DISPUTE RE BERNTSON TRANSCRIPT ERRATA Re: Dkt. No. 652 United States District Court Northern District of California 11 12 13 The parties ask the Court to resolve a dispute regarding a portion of a December 11, 2023 14 errata to the October 23, 2023 deposition transcript of Dr. Glenn Berntson, who testified on 15 Google’s behalf as a Rule 30(b)(6) designee. Dkt. No. 652. Specifically, plaintiffs ask the Court 16 to strike the portion of the errata that purports to correct Dr. Berntson’s use of the word 17 “destroying” at page 211, line 18 of the transcript. Alternatively, plaintiffs ask for an opportunity 18 take further deposition testimony on the subject matter addressed by the errata. See id. at 2. 19 Google responds that the change reflected in the errata should not be stricken because it merely 20 corrects a factually incorrect statement by Dr. Berntson. See id. at 4. The Court previously found 21 this dispute suitable for resolution without oral argument. Civil L.R. 7-1(b); Dkt. No. 691. 22 Rule 30(e) of the Federal Rule of Civil Procedure permits a deponent to make changes to 23 his deposition testimony “in form or substance” provided the deponent (1) requests review of the 24 deposition to make corrections, (2) signs a statement listing the changes and the reasons for 25 making them, and (3) submits changes within 30 days of receiving notice that the transcript is 26 available. Fed. R. Civ. P. 30(e)(1)-(2). Rule 30(e) does not permit a deponent to change his 27 testimony as a “sham” solely to evade an unfavorable ruling. See Hambleton Bros. Lumber Co. v. 28 Balkin Enterprises, Inc., 397 F.3d 1217, 1225 (9th Cir. 2005); Lewis v. The CCPOA Benefit Tr. United States District Court Northern District of California 1 Fund, No. C-08-03228-VRW DMR, 2010 WL 3398521, at *2 (N.D. Cal. Aug. 27, 2010). The 2 Ninth Circuit has made clear that “Rule 30(e) is be used for corrective, and not contradictory, 3 changes.” Hambleton, 397 F.3d at 1226. 4 As an initial matter, it is not clear that any changes in the errata are permissible under Rule 5 30(e), as there is no indication that Google or the deponent requested an opportunity to review the 6 transcript for corrections, or that the change at issue was timely made.1 However, as the parties do 7 not address these threshold matters, the Court assumes for purposes of this dispute that the 8 corrections were timely and followed an appropriate request for review. 9 The disputed change to page 211, line 18 of the deposition cannot reasonably be 10 considered a “clarifying” change. Rather, the errata purports to delete unfavorable testimony. 11 While Google may be correct that, when read in context, Dr. Berntson’s recorded testimony is 12 inconsistent with testimony he gave at other points in the deposition, the alteration Google seeks 13 does not correct the testimony in question, but instead contradicts the testimony recorded at page 14 211, line 18 by eliminating it from the record. 15 The Court grants plaintiffs’ request to strike this portion of the errata. 16 IT IS SO ORDERED. 17 Dated: July 8, 2024 18 19 Virginia K. DeMarchi United States Magistrate Judge 20 21 22 23 24 25 26 27 28 Exhibit B to the joint discovery dispute submission reflects that the reporter indicated “Reading & Signature was not requested before completion of the deposition.” See Dkt. No. 652, Ex. B (dep. at 258:9). 2 1

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