Dobina v. Weatherford International Ltd. et al
Filing
161
MEMORANDUM AND ORDER granting 153 Motion to Compel. For the reasons discussed above, the defendant's motion to compel the plaintiffs' return of original Weatherford Rule 30(b) (6) transcripts so that errata sheets may be attached (Docket no. 153) is granted. (Signed by Magistrate Judge James C. Francis on 8/23/2013) Copies Mailed By Chambers. (lmb)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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IN RE WEATHERFORD INTERNATIONAL
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SECURITIES LITIGATION
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JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE
11 Civ. 1646 (LAK) (JCF)
MEMORANDUM
AND ORDER
The motion currently before the Court in this case presents an
issue of first impression but little practical significance: when
multiple witnesses are designated as corporate representatives
pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure,
must a request to review and sign the deposition transcript be made
on behalf of each witness, or does a single request satisfy the
notice requirement of Rule 30(e)?
Background1
The plaintiffs are investors who bring this putative class
action against Weatherford International Ltd. (“Weatherford” or the
“Company”), contending that it and certain of its officers made
false
and
misleading
statements
1
in
violation
of
the
federal
A complete discussion of the factual background of this
litigation is set forth in Dobina v. Weatherford International,
Ltd., 909 F. Supp. 2d 228 (S.D.N.Y. 2012), familiarity with which
is presumed.
1
securities laws.
On March 6, 2013, the plaintiffs served a notice of deposition
on Weatherford pursuant to Rule 30(b)(6). (Lead Plaintiff’s Notice
of Deposition of Defendant Weatherford International Ltd. Pursuant
to Fed. R. Civ. P. 30(b)(6) (“Notice of Dep.”), attached as Exh. A
to Defendants’ Memorandum of Law in Support of Motion to Compel
Plaintiffs’ Return of Original Weatherford Rule 30(b)(6) Deposition
Transcripts So That Errata Sheets May Be Attached (“Def. Memo.”)).
Weatherford designated four Rule 30(b)(6) witnesses to testify on
its behalf, and each witness was deposed on a different day -- (1)
Douglas Mills on May 30, 2013; (2) Steven Gyeszly on June 5, 2013;
(3) Steven Carvalho on June 6, 2013; and (4) Brett Eckert on June
7, 2013.
(Def. Memo. at 1 & n.1; Plaintiffs’ Opposition to Motion
to Compel Plaintiffs’ Return of Original Weatherford Rule 30(b)(6)
Deposition Transcript So That Errata Sheets May Be Attached (“Pl.
Memo.”) at 1).
At the deposition of Weatherford’s first Rule
30(b)(6) designee, Mr. Mills, counsel for Weatherford requested
thirty days to review and sign the transcript in accordance with
Rule 30(e).
(Def. Memo. at 1; Pl. Memo. at 1; E-mail of Heather
Duncan dated July 12, 2013, attached as Exh. B to Def. Memo.;
Reporter’s
Certification,
Videotaped/Realtimed
Deposition
of
Douglas M. Mills dated May 30, 2013, attached as Exh. 7 to Pl.
Memo.).
No such requests were made at the depositions of the
2
second and third Rule 30(b)(6) designees, Mr. Gyeszly and Mr.
Carvalho.
(Def. Memo. at 1; Pl. Memo. at 1).
At the deposition of
Mr. Eckert, Weatherford’s last Rule 30(b)(6) witness, the court
reporter, who had attended Mr. Mills’ deposition but not those of
Mr. Gyezsly and Mr. Carvalho, confirmed on the record that a Rule
30(e) request had been made.
(Def. Memo. at 1; Pl. Memo. at 1;
Deposition Transcript of Brett W. Eckert dated June 7, 2013,
attached as Exh. C to Def. Memo. at 7; Reporter’s Certification,
Videotaped/Realtimed Deposition of Brett W. Eckert dated June 7,
2013, attached as Exh. 8 to Pl. Memo.).
Veritext, the company providing court reporting services,
sealed
the
transcripts
from
Mr.
Gyeszly
and
depositions and provided them to the plaintiffs.
Mr.
Carvalho’s
(Letter of the
Veritext Team dated June 13, 2013, attached as Exh. 10 to Pl.
Memo.; Letter of the Veritext Team dated June 12, 2013, attached as
Exh. 9 to Pl. Memo.).
contacted
Veritext
to
On July 9, 2013, Weatherford’s counsel
inquire
about
errata
sheets
for
these
witnesses. (Def. Memo. at 1). On July 10, 2013, Veritext provided
Weatherford with signature pages and errata sheets for the two
depositions (E-mail of Janelle Rosamond dated July 10, 2013,
attached as Exh. E to Def. Memo.), and later that day the defendant
returned executed signature pages and errata sheets to Veritext (Email of Olutosin Akinyode re Steven Gyeszly dated July 10, 2013,
3
attached as Exh. F to Def. Memo.; Steven Gyeszly Deposition, June
5, 2013 -- Errata Sheet dated June 10, 2013, attached as Exh. 3 to
Pl. Memo.; E-mail of Olutosin Akinyode re Steven Carvalho dated
July 10, 2013, attached as Exh. G to Def. Memo.; Steve Carvalho
Deposition, June 6, 2013 -- Errata Sheet dated July 10, 2013,
attached as Exh. 4 to Pl. Memo.).
On July 12, 2013, Veritext informed the parties that upon
reviewing Mr. Gyeszly and Mr. Carvalho’s deposition transcripts, it
was not aware of any Rule 30(e) request made at either deposition
nor of any agreement between the parties providing for review and
correction and, therefore, would not be making any changes to the
original transcripts.
(E-mail of Heather Duncan dated July 12,
2013, attached as Exh. H to Def. Memo.).2
The plaintiffs
refused
return
Weatherford’s
request
that
they
the
have
original
transcripts to Veritext so that the errata sheets may be attached.
(Def. Memo. at 1-2). Weatherford now moves for an order compelling
2
On July 12, 2013, Heather Duncan, an attorney with Veritext,
spoke with Paul Breucop, plaintiffs’ counsel who attended the first
Rule 30(b)(6) deposition, and was informed that there was an
understanding between the parties that Mr. Gyeszly and Mr. Carvalho
would have an opportunity to review and sign their depositions.
(Declaration of Heather Duncan dated July 19, 2013, ¶¶ 1-2; Letter
of Kevin H. Metz dated July 12, 2013 (“July 12 Metz Letter”),
attached as Exh. D to Def. Memo., at 2). Subsequently, Ms. Duncan
received a call from Ramzi Abadou, another attorney for the
plaintiffs who did not attend the first Rule 30(b)(6) deposition,
and he informed her that there was no such agreement between the
parties. (July 12 Metz Letter at 2).
4
the plaintiffs to do so.
Discussion
A.
Rule 30(e) Request
Rule 30(e)(1) provides that “[o]n request by the deponent or
a party before the deposition is completed, the deponent must be
allowed 30 days . . . to review the transcript . . . and if there
are changes in form or substance, to sign a statement listing the
changes and the reasons for making them.”
30(e)(1).
Fed. R. Civ. P.
“As a threshold, Rule 30(e)(1) requires the party or
deponent to request review of the deposition before the deposition
itself is completed.”
618
F.3d
253,
265
EBC, Inc. v. Clark Building Systems, Inc.,
(3d
Cir.
2010);
accord
Agrizap,
Inc.
v.
Woodstream Corp., 232 F.R.D. 491, 493 (E.D. Pa. 2006) (“‘Under the
plain language of Rule 30(e) [], the deponent or a party must
request review of the deposition before its completion.’” (quoting
Rios v. Bigler, 67 F.3d 1543, 1151 (10th Cir. 1995))); see Judge v.
New York City Police Department, No. 10 Civ. 4236, 2012 WL 98509,
at *4 (S.D.N.Y. Jan. 12, 2012) (plaintiff precluded from making
changes to deposition transcript because he failed to request
review of transcript).
“Numerous courts have rejected changes to
depositions when the procedural requirements of Rule 30(e) were not
met.”
Winston v. Marriott International, Inc., No. 03 CV 6321,
2006 WL 1229111, at *6 (E.D.N.Y. May 8, 2006) (excluding disputed
5
errata sheet as utimely); see EBC, Inc., 618 F.3d at 265 (“The
procedural requirements of Rule 30(e) are clear and mandatory.”);
Agrizap, Inc., 232 F.R.D. at 493 (“[T]here is no debate that the
procedural
requirements
of
Rule
30(e)
must
be
adhered
to.”
(internal footnote omitted)).
The issue here is whether the depositions of Weatherford’s
four Rule 30(b)(6) designees constitute a single deposition for the
purposes of the request requirement under Rule 30(e).
If the
depositions of Weatherford’s Rule 30(b)(6) witnesses are treated as
a single deposition, as the defendant argues, then the Rule 30(e)
request made at Mr. Mills’s deposition and confirmed at Mr.
Eckert’s deposition satisfies Rule 30(e) for all four deposition
including those of Mr. Gyeszly and Mr. Carvalho.
2).
(Def. Memo. at
On the other hand, if, as the plaintiffs contend, the
examinations
of
the
four
designees
are
considered
separate
depositions, then the Rule 30(e) request requirement was not met
for Mr. Gyeszly and Mr. Carvalho’s depositions, and the defendant
has waived its opportunity to review and sign those transcripts.
(Pl.
Memo.
at
2).
My
research
has
not
uncovered
any
case
addressing the interplay between Rule 30(b)(6) and Rule 30(e).
The plain language of Rule 30(b)(6) provides that when “a
party [] name[s] as the deponent” a corporation, “[t]he named
organization must then designate one or more . . . persons who
6
consent to testify on its behalf.”
(emphasis added).
Fed. R. Civ. P. 30(b)(6)
Here, the plaintiffs named Weatherford as “the
deponent” (Notice of Dep. at 1), and that did not change when
Weatherford designated four witnesses to testify on its behalf
because Weatherford’s “‘designee[s] [were] not simply testifying
about matters within [their] own personal knowledge, but [were]
speaking for the corporation about matters to which the corporation
has reasonable access.’” Soroof Trading Development Co. v. GE Fuel
Cells Systems, LLC, No. 10 Civ. 1391, 2013 WL 1286078, at *4
(S.D.N.Y.
March
28,
2013)(second
and
third
sets
of
internal
quotation marks omitted) (quoting Great American Insurance Co. of
New York v. Summit Exterior Works, LLC, No. 3:10 CV 1669, 2012 WL
459885, at *3 (D. Conn. Feb. 13, 2012)); see Twentieth Century Fox
Film Corp. v. Marvel Enterprises, Inc., No. 01 Civ. 3016, 2002 WL
1835439, at *2 (S.D.N.Y. Aug. 8, 2002) (“‘The testimony elicited at
the Rule 30(b)(6) deposition represents the knowledge of the
corporation, not of the individual deponents.
The designated
witness is speaking for the corporation.’” (second set of internal
quotation marks omitted) (quoting United States v. Taylor, 166
F.R.D. 356, 361 (M.D.N.C. 1996))).
Accordingly, regardless of the
number of witnesses that Weatherford designated, the deponent
remains Weatherford, and the depositions of the four Rule 30(b)(6)
designees should be treated as that of a single deponent for
7
purposes of Rule 30(e).
This is consistent with the 1993 Advisory Committee’s Note to
Rule 30, which provides that for the purpose of counting the number
of depositions a party may take under Rule 30(a)(2)(A), a Rule
30(b)(6) deposition should “be treated as a single deposition even
though more than one person may be designated to testify.” Fed. R.
Civ. P. 30 advisory committee’s note (1993 Amendments).
“readily
discernable
logic”
for
this
rule
is
that
The
“large
corporations . . . may require testimony from multiple officers and
custodians to provide comprehensive testimony . . . [and] [t]hus,
a contrary rule would place an unfair constraint on the number of
depositions allowed to parties needing to conduct Rule 30(b)(6)
depositions.” State Farm Mutual Auto Insurance Co. v. New Horizon,
Inc., 254 F.R.D. 227, 234-35 (E.D. Pa. 2008) (internal quotation
marks omitted).
In any event, whether the defendant is permitted to attach
errata
sheets
is
of
little
consequence.
If
they
are,
the
plaintiffs nevertheless remain able to utilize the original answers
provided
by
Weatherford’s
designee,
and
they
will
have
the
opportunity to impeach Weatherford’s testimony at trial with any
inconsistencies.
See Podell v. Citicorp Diners Club, 112 F.3d 98,
103 (2d Cir. 1997) (noting that “when a party amends his testimony
under Rule 30(e), [t]he original answer to the deposition questions
8
will remain part of the record and can be read at the trial.
Nothing in the language of Rule 30(e) requires or implies that the
original answers are to be stricken when changes are made.”
(alteration in original) (internal quotation marks and citation
omitted)); Auscape International v. National Geographic Society,
No. 01 Civ. 10820, 2003 WL 23531750, at *11 (S.D.N.Y. July 25,
2003).
On the other hand, even if Weatherford were barred from
attaching the errata sheets, the plaintiffs “could not reasonably[]
suggest that a witness would be precluded by his or her deposition
testimony from giving different testimony at trial.”
Toland v.
Forest Laboratories, Inc., 00 Civ. 4179, 2001 WL 30617, at *1
(S.D.N.Y. Jan. 11, 2001); see also Palazzo ex rel. Delmage v.
Corio, 232 F.3d 38, 43-44 (2d Cir. 2000) (noting that “a party’s
deposition testimony as to a given fact does not foreclose a trial
or an evidentiary hearing where that testimony is contradicted by
[other] evidence” and “such a conflict affects the weight of the
testimony, not its admissibility”); cf. A & E Products Group, L.P.
v. Mainettie USA Inc., No. 01 Civ. 10890, 2004 WL 345841, at *7
(S.D.N.Y. Feb. 25, 2004) (noting that “a corporation is ‘bound’ by
its Rule 30(b)(6) testimony, in the same sense that any individual
deposed
under
testimony.
Rule
30(b)(1)
would
be
‘bound’
by
his
or
her
All this means is that the witness has committed to a
9
position at a particular point in time.
It does not mean that the
witness has made a judicial admission that formally and finally
decides
an
omitted)).
issue.’”
(first
set
of
internal
quotation
marks
Thus, the only effect of not allowing the defendant to
attach the errata sheets “would be to disadvantage litigants by
depriving
them
testimony.”
B.
of
early
notice
of
corrections
in
deposition
Toland, 2001 WL 30617, at *1.
Validity of the Errata Sheets
The plaintiffs also argue that the errata sheets submitted by
the defendant should be rejected because they “rewr[i]te [the
testimony] altogether.”
(Pl. Memo. at 2).
“Courts in the Second
Circuit construe Rule 30(e) broadly, permitting any changes to the
deposition to be considered as part of the record, even where they
contradict the original answers.”
Samad Brothers, Inc. v. Bokara
Rug Co., No. 09 Civ. 5843, 2012 WL 43613, at *8 (S.D.N.Y. Jan. 9,
2012) (collecting cases); see Podell, 112 F.3d at 103 (“Rule 30(e)
allows deponents to make changes in form or substance to their
testimony . . . [t]he language of the Rule places no limitations on
the type of changes that may be made[,] . . . nor does the Rule
require a judge to examine the sufficiency, reasonableness, or
legitimacy of the reasons for the changes -- even if those reasons
are
unconvincing.”
(second,
third,
and
fourth
alterations
original) (internal quotation marks and citation omitted)).
10
in
The
plaintiffs
acknowledge
that
the
permissive
remains the law in this Circuit.
the
errata
sheets
that
the
standard
(Pl. Memo. at 2).
defendant
have
in
Podell
Thus, even if
submitted
make
substantive changes to the testimony, they are permissible.
Conclusion
For the reasons discussed above,
the defendant's motion to
compel the plaintiffs' return of original Weatherford Rule 30(b) (6)
transcripts so that errata sheets may be attached (Docket no. 153)
is granted.
SO ORDERED.
UNITED STATES MAGISTRATE JUDGE
Dated: New York, New York
August 23, 2013
Copies mailed this date to:
Jala Amsellen, Esq.
Lionel Z. Glancy, Esq.
Michael Goldberg, Esq.
Robert V. Prongay, Esq.
Glancy Binkow & Goldberg LLP
1801 Avenue of the Stars, Suite 311
Los Angeles, CA 90067
Howard G. Smith, Esq.
Smith & Smith
3070 Bristol Pike, Suite 112
Bensalem, PA 19020
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Curtis V. Trinko, Esq.
Law Offices of Curtis V. Trinko, LLP
16 west 46th Street, Seventh Floor
New York, New York 10036
Eli R. Greenstein, Esq.
Erik D. Peterson, Esq.
Ramzi Abadou, Esq.
Stacey M. Kaplan, Esq.
Jennifer L. Joost, Esq.
Kessler Topaz Meltzer & Check, LLP
One Sansome St., Suite 1850
San Francisco, CA 94104
Darren J. Check, Esq.
Kessler Topaz Meltzer & Check, LLP
280 King of Prussia Road
Radnor, PA 19087
David R. Scott, Esq.
Scott & Scott LLC
156 South Main Street
P.O. Box 192
Colchester, Ct 06415
Mary K. Blasy,
Scott & Scott
707 Broadway,
San Diego, CA
Esq.
LLC
Suite 1000
92101
Darren J. Robbins, Esq.
Robbins Gel
Rudman & Dowd LLP
655 West Broadway, Suite 1900
San Diego, CA 92101
David A. Rosenfeld, Esq.
Evan J. Kaufman, Esq.
Robbins Geller Rudman & Dowd, LLP
58 South Service Road, Suite 200
Melville, New York 11747
Robert J. Malionek, Esq.
sarah A. Greenfield, Esq.
Latham & Watkins LLP
885 Third Avenue, suite 1000
New York, New York 10022
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Kevin H. Metz, Esq
Latham & Watkins LLP
555 Eleventh Street, NW, Suite 1000
Washington, DC 20004
Peter A. Wald, Esq.
Latham & Watkins LLP
505 Montgomery Street, Suite 2000
San Francisco, CA 94111
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