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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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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

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The parties ask the Court to resolve a dispute regarding a portion of a December 11, 2023

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errata to the October 23, 2023 deposition transcript of Dr. Glenn Berntson, who testified on

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Google’s behalf as a Rule 30(b)(6) designee. Dkt. No. 652. Specifically, plaintiffs ask the Court

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to strike the portion of the errata that purports to correct Dr. Berntson’s use of the word

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“destroying” at page 211, line 18 of the transcript. Alternatively, plaintiffs ask for an opportunity

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take further deposition testimony on the subject matter addressed by the errata. See id. at 2.

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Google responds that the change reflected in the errata should not be stricken because it merely

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corrects a factually incorrect statement by Dr. Berntson. See id. at 4. The Court previously found

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this dispute suitable for resolution without oral argument. Civil L.R. 7-1(b); Dkt. No. 691.

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Rule 30(e) of the Federal Rule of Civil Procedure permits a deponent to make changes to

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

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deposition to make corrections, (2) signs a statement listing the changes and the reasons for

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making them, and (3) submits changes within 30 days of receiving notice that the transcript is

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available. Fed. R. Civ. P. 30(e)(1)-(2). Rule 30(e) does not permit a deponent to change his

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testimony as a “sham” solely to evade an unfavorable ruling. See Hambleton Bros. Lumber Co. v.

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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

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Fund, No. C-08-03228-VRW DMR, 2010 WL 3398521, at *2 (N.D. Cal. Aug. 27, 2010). The

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Ninth Circuit has made clear that “Rule 30(e) is be used for corrective, and not contradictory,

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changes.” Hambleton, 397 F.3d at 1226.

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As an initial matter, it is not clear that any changes in the errata are permissible under Rule

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30(e), as there is no indication that Google or the deponent requested an opportunity to review the

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transcript for corrections, or that the change at issue was timely made.1 However, as the parties do

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not address these threshold matters, the Court assumes for purposes of this dispute that the

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corrections were timely and followed an appropriate request for review.

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The disputed change to page 211, line 18 of the deposition cannot reasonably be

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considered a “clarifying” change. Rather, the errata purports to delete unfavorable testimony.

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While Google may be correct that, when read in context, Dr. Berntson’s recorded testimony is

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inconsistent with testimony he gave at other points in the deposition, the alteration Google seeks

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does not correct the testimony in question, but instead contradicts the testimony recorded at page

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211, line 18 by eliminating it from the record.

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The Court grants plaintiffs’ request to strike this portion of the errata.

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IT IS SO ORDERED.

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Dated: July 8, 2024

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Virginia K. DeMarchi
United States Magistrate Judge

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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).
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