Summary
awarding re-deposition costs when deponent made substantial changes to testimony
Summary of this case from Mullins v. U.S. BankOpinion
In qui tam action brought under False Claims Act against weapons supplier to United States Government, defendant moved to suppress changes to plaintiffs' three deposition transcripts. The District Court, Sherman, United States Magistrate judge, held that: (1) deposition changes were improperly made by plaintiffs, rather than by " officer" as required by rule, but that fact alone did not merit suppressing changes; (2) nine or more substantive changes to deposition transcripts, which either added detail to, or contradicted, original answers, made each deposition incomplete without further testimony, warranting order that depositions be reopened; and (3) no exceptional circumstances existed justifying exercise of court's inherent power to sanction, so as to award defendant fees and costs incurred in bringing motion.
Ordered accordingly.
Ann Louise Lugbill, James Burdette Helmer, Jr., Helmer Lugbill Martins & Neff, Cincinnati, OH, for plaintiffs.
Gerald Francis Kaminski, U.S. Dept. of Justice, Cincinnati, OH, for U.S.
John William Beatty, Dinsmore & Shohl, Cincinnati, OH, for Piqua Engineering.
Michael Davidson, Senate Legal Counsel, Washington, DC, for amicus U.S. Senate.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO SUPPRESS CHANGES TO QUI TAM PLAINTIFFS' THREE DEPOSITION TRANSCRIPTS
SHERMAN, United States Magistrate Judge.
On Friday, January 8, 1993 the Court heard oral argument on defendant's motion " to suppress changes to [plaintiffs' three] deposition transcripts" (doc. 40). See also docs. 51 (plaintiffs' memorandum in opposition), 53 (defendant's reply). This opinion memorializes the Court's oral decision rendered the following Monday, January 11, 1993.
I.
This qui tam action was brought under the False Claims Act, 31 U.S.C. § 3729, et seq., by three former employees of Piqua Engineering, Inc. (" Piqua" ). Those employees ( qui tam plaintiffs Barbara Burch, Joan Harmon, and Lowell Kissinger) contend that Piqua, an Ohio-based weapons supplier to the United States government, defrauded the United States by, inter alia, " falsely certif[ying] that it complied with contractually required safety and quality standards." Doc. 43 (second amended complaint) at 2.
On July 15-17, 1992 each of the three qui tam plaintiffs was deposed by defendant. Shortly thereafter, a court reporter submitted copies of plaintiffs' deposition transcripts to them for their individual signatures. In response, plaintiffs made a total of 111 handwritten changes to the transcripts before signing them. Those handwritten changes are the subject of defendant's motion.
II.
In support of its motion, defendant argues that: (1) the changes were not made in compliance with Fed.R.Civ.P. 30(e) and should therefore be suppressed; and (2) in the alternative, if the changes are not suppressed, Rule 30(e) should be complied with and, because the additional information (supplied by the changes) renders the depositions incomplete, all three depositions should be reopened. In addition, defendant seeks an award of the fees and costs it already incurred in filing the instant motion, and the fees and costs it will incur in reopening the depositions. For the reasons that follow, the Court agrees, in part, with these contentions.
A
Fed.R.Civ.P. 30(e) provides that:
When the testimony is fully transcribed the deposition shall be submitted to the witness for examination.... Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them.
In the three depositions at issue-each of which occurred in Cincinnati-an independent court reporter, licensed as a notary public in the State of Ohio, administered oaths. Burch depo. at 4; Harmon depo. at 3; Kissinger depo. at 3. That court reporter is thus an " officer" for purposes of Rule 30(e). See Fed.R.Civ.P. 28(a); see also Ikerd v. Lapworth, 435 F.2d 197, 206-07 & n. 4 (7th Cir.1970); Baker v. Ace Advertisers' Serv., Inc., 134 F.R.D. 65, 73 (S.D.N.Y.1991), dismissed on other grounds, 153 F.R.D. 38 (S.D.N.Y.1992); Perkasie Indus. Corp. v. Advance Transformer, Inc., No. 90-7359, 1992 WL 166042, at *3 1991 U.S.Dist. LEXIS 20374, at *9 (E.D.Pa. June 11, 1992). Recognizing that Rule 30(e) requires all deposition changes be made " by the officer ...[,]" the Court finds the changes made here by qui tam plaintiffs in error. That fact alone does not merit suppressing the changes, however, for Rule 30(e) permits, as noted, " [a]ny changes in form or substance which the witness desires to make ..." (emphasis provided). Thus, under the Rule, changed deposition answers of any sort are permissible, even those which are contradictory or unconvincing, as long as the procedural requirements set forth in the Rule are also followed. Perkasie, 1992 WL 166042, at *2, 1991 U.S.Dist. LEXIS 20374, at *6; Sanford v. CBS, Inc., 594 F.Supp. 713, 714-15 (N.D.Ill.1984); Lugtig v. Thomas, 89 F.R.D. 639, 641 (N.D.Ill.1981). The Court therefore DENIES IN PART defendant's motion by DECLINING to suppress plaintiffs' deposition transcript changes, and GRANTS IN PART the motion by ORDERING plaintiffs to comply with Rule 30(e) within fifteen days of their receipt of this Order, to wit: all transcript changes shall be entered upon the depositions by the court reporter, with a statement of the reasons given by the witness for making each change. See Lugtig at id. (rejecting, as violative of Rule 30(e), witnesses' use of deposition correction sheets). All transcript correction costs shall be borne by plaintiffs. Id.
B
Each of the three depositions can be reopened if the transcript changes " make the deposition incomplete or useless without further testimony...." Lugtig, 89 F.R.D. at 642; Perkasie, 1992 WL 166042, at *3, 1991 U.S.Dist. LEXIS 20374, at *10. Such is the case here, for plaintiffs admit that Burch made 18 changes which either add detail to, or contradict, his original answers; and that Harmon and Kissinger made, respectively, 16 and 9 similar changes. This substantial number of substantive changes makes each deposition incomplete without further testimony. Compare Perkasie, 1992 WL 166042, at *3-4, 1991 U.S.Dist. LEXIS 20374, at *11-12 (finding just one contradicted answer as sufficient grounds to reopen a deposition). The Court therefore GRANTS IN PART defendant's motion, by ORDERING that all three depositions be reopened within thirty days. Plaintiffs shall pay defendant-counsel's reasonable costs and fees, including travel expenses, incurred in that regard. In the reopened depositions, defendant's counsel may ask all questions " which were made necessary by the changed answers, questions about the reasons the changes were made, and questions about where the changes originated...." Lugtig, 89 F.R.D. at 642.
At oral argument, plaintiffs' counsel contended that Burch made 29 transcription changes, 18 of which either add substantive detail to or contradict his original answers (the remaining 11 changes correct transcription errors); Harmon made 27 changes, of which 16 are substantive or contradictory and 11 corrective; and Kissinger made 52 changes, of which 9 are substantive or contradictory and 43 corrective. (While these numbers add up to 108, not 111 changes, that discrepancy is immaterial for purposes of this analysis. See supra. )
III.
One issue remains: whether defendant should be awarded, as a sanction, the fees and costs its counsel incurred in bringing the instant motion. As the Sixth Circuit has explained,
Under the " American Rule," awards of attorneys' fees are not appropriate except when authorized by statute, or by court rules, or if there are exceptional circumstances that justify an exercise of the court's inherent power.... In all situations in which fees are permitted ... the award is to serve a particular purpose, whether it is protecting the defendant from undue prejudice, sanctioning vexatious conduct, or other reasons.
Spar Gas, Inc. v. AP Propane, Inc., No. 91-6040, 1992 WL 172129, at *2, 1992 U.S.App. LEXIS 17471, at *5-6 (6th Cir. July 22, 1992) (citations omitted; quotations in original). With respect to these three criteria-statutes, court rules, and inherent power-no statute is here relevant, nor does Rule 30(e) explicitly provide for an attorneys' fee award. Cf. Fed.R.Civ.P. 30(g). Regarding the use of the Court's inherent power, defendant argues that an " exceptional circumstance" is presented here, much like the " willful misconduct" meriting sanctions in Baker, supra. See 134 F.R.D. at 74. Baker concerned a plaintiff who chose not only to " cross out" each of his answers in a three-volume deposition transcript, but to deface the transcript itself, among other improper acts. When ordered by the Court to correct his transcript, Baker refused. Accordingly, sanctions were imposed against him under Fed.R.Civ.P. 37(b)(2). Id. at 67-69, 71, 74. That and other willful misconduct eventually caused the dismissal of his complaint. See 153 F.R.D. 38, 40-42.
No such willful misconduct is apparent in this instance. Nor are qui tam plaintiffs now subject to Rule 37(b)(2), as Baker was, for " fail[ing] to obey an order to provide or permit discovery...." Thus believing that no exceptional circumstances justify an exercise of the Court's inherent power to sanction, accord Perkasie, 1992 WL 166042, at *4, 1991 U.S.Dept. LEXIS 20374, at *12-13 (no sanctions imposed where the transcript is " easily corrected" ), the Court DENIES this aspect of defendant's motion.
IT IS SO ORDERED.
DEPOSITION OF BARBARA K. BURCH
CHANGES AND CORRECTIONS
Page
Line
Description
11
3
" Kaser" should be " Kiser"
REASON:
I made the change to correct a spelling mistake.
11
16-18
Should be " They had me assembling a trainingfuze. I don't recall the work order number, but Ithink it was for Martin Marietta. Then I went to workon the Mark 48"
REASON:
I made the change to add information that I recalledafter my deposition to make my answer more complete.
13
1-4
Should be " The computer test would check to seehow long the whole unit would take to time out and thereading of the time would print out on a computersheet."
REASON:
I made the change to re-word my answer to make it moreaccurate.
14
9
" Did" should be " Failed the test"
REASON:
I made the change to make my answer more accurate.
15
17
Should be " No. We were not allowed to show thefailures on paper."
REASON:
I made the change to make my answer more accurate.
16
11
" Just" should be " Yes"
REASON:
I made the change to make my answer more accurate.
23
17
" Blow up in the cups just" should be "flow in the cups and up the wires."
REASON:
I made the change to correct a transcription error.
25
15
At the beginning add " I recall working on a verylong board called a position indicator. The only thingI remember on this job is that I put terminals into theboard. Then I recall working on the escapementassembly. This job was mechanical assembly. Some of theproblems on this job were the gears and pinions beingoversized or undersized. This would cause theescapement assembly to not run smoothly."
REASON:
I made the change to add information I recalled aftermy deposition, to make my answer more complete.
47
5
Should be " A safe and arm device."
REASON:
I made the change to make my answer more accurate.
56
5-6
Should be " End caps were for the same work orderas the manifold assembly."
REASON:
I made the change to add information that I recalledafter the deposition to make my answer more complete.
76
20-21
Should be " Mr. Scarbrough had called a meetingand said that anyone who was involved with OSHA or withthe news media was wrong and they should not be doingthis to him. It was prior to the layoff and after theOSHA investigation and when people talked to the newsmedia. One of the employees had a tape recorder hiddenon their person
Page
Line
Description
during the meeting. Mr. Lutz was asking questions aboutthe meeting."
REASON:
I made the change to add information that I recalledafter the deposition to make my answer more complete.
86
3
Should be " All I recall is I met with him once on1-2-90."
REASON:
I made the change to add information that I recalledafter the deposition to make my answer more complete.
88
18
Should be " yes"
REASON:
I made the change to make my answer more accurate.
90
23
Should be " I recall two other people I talked to.Bill Dotery (sp?) from the Department of Defense inWashington and Gene Dehart with the U.S. Department ofLabor."
REASON:
I made the change to add information I recalled aftermy deposition to make my answer more accurate.
93
8-9
" Then I can't think of the one littleguy's name" should be " And KenCarey."
REASON:
I made the change to add information I recalled aftermy deposition to make my answer more accurate.
REASON:
I made the change to correct my misstatement.
103
4
Should be " No."
REASON:
I made the change to add information I recalled aftermy deposition to make my answer more complete.
105
13
Should be " Yes, they were work instructionnumbers."
REASON:
I made the change to add information I recalled aftermy deposition to make my answer more complete.
108
24
Should be " This is a housing assembly test. Somedays I had more rejects on them but apparently thisparticular time I didn't have that many. Ididn't always write things down in my books.Different work orders had different failure rates thanothers, no matter if it was a S & A device or justa part that went into the assembly of a S & Adevice."
REASON:
I made the change to add information I recalled aftermy deposition to make my answer more complete.
112
7
Should be " Bob Marlow."
REASON:
I made the change to correct my misstatement.
112
15
Should be " I don't recall the date but Istarted getting a premium when I was doing the leaktests."
REASON:
I made the change to add information I recalled aftermy deposition to make my answer more complete.
137
15
Should be " I have seen Linda Sexauer rush throughthe vacuuming and pressurizing. She might only vacuumonce then pressurize then seal. She said itwouldn't hurt anything and this was one of the waysshe told me I could do it. I did it that way a coupleof times when she was rushing me, but when I started onmy own I followed the work instructions. I didn'tknow if anyone else had told her that she could do itthat way or not. She stressed not to do this if thegovernment was around and I didn't take anychances. I didn't do this because the job should bedone as instructed on the work instructions."
REASON:
I made the change to add information I recalled aftermy deposition to make my answer more complete.
158
7
Should be " I did some inspection on the MK 48soldering and on the potted boards and on theenvironmental test. Also on the leak test job."
Page
Line
Description
REASON:
I made the change to add information I recalled aftermy deposition to make my answer more complete.
161
5
Add " Jane Brandt, Jackie Russell, LowellKissinger, Dave Allen and more that I can'tremember."
REASON:
I made the change to add information I recalled aftermy deposition to make my answer more complete.
164
16
" Kaser" should be " Kiser"
REASON:
I made the change to correct a spelling mistake.
164
21
" the 27th" should be " 17, 1990"
REASON:
I made the change to correct my misstatement.
186
5
Should be " Bill Dotery"
REASON:
I made the change to add information that I recalledafter my deposition to make my testimony more complete.
193
14
Should be " unemployed."
REASON:
I made the change to add information that I recalledafter my deposition to make my testimony more complete.
Barbara K. Burch
Barbara K. Burch
DEPOSITION OF LOWELL A. KISSINGER
CHANGES AND CORRECTIONS
Page
Line
Description
6
2
" Addyston" should be " Edison"
REASON:
I made the change to correct a spelling mistake.
9
10
" parity" should be " power"
REASON:
I made the change to correct a transcription mistake.
11
7
At the end add " Then I became a Supervisor."
REASON:
I made the change to add information I recalled afterthe deposition to make my answer more complete.
16
23
At the beginning add " My next job was at ForwardMotions in Dayton for about 3 months."
REASON:
I made the change because in reviewing my depositiontranscript I realized that I had forgotten about "Forward Motions."
16
23
" Friend" should be " Freund"
REASON:
I made the change to correct a spelling mistake.
17
2
" Friend" should be " Freund"
REASON:
I made the change to correct a spelling mistake.
21
10
" They'd" should be " They didnot"
REASON:
I made the change to correct a transcription mistake.
27
21
" was not right." should be " it was notcoated right."
REASON:
I made the change to add information I recalled aftermy deposition to make my answer more accurate.
30
2
" put" should be " with"
REASON:
I made the change to correct a transcription mistake.
30
11
At the end add " through a hole in the cap"
REASON:
I made the change to add additional information Irecalled after the deposition to make my answer morecomplete.
41
12
" see" should be " think"
REASON:
I made the change to correct a transcription mistake.
48
10
Add " type of" between "particular" and " unit"
REASON:
I made the change to add additional information Irecalled after my deposition to make my answer moreaccurate.
49
10
" metallic" should be " silver"
REASON:
I made the change to correct my misstatement.
49
22
" It" should be " There"
Page
Line
Description
REASON:
I made the change to correct a transcription mistake.
52
17
" boss is always" should be " departmentboss was"
REASON:
I made the change to make my answer more accurate.
53
14
At end add " and also people on the secondshift"
REASON:
I made the change to add information I recalled aftermy deposition to make my testimony more complete.
55
12
" He went down," should be " I went downwith"
REASON:
I made the change to correct a transcription mistake.
55
13
" the other" should be " another"
REASON:
I made the change to correct a transcription mistake.
55
16
At end add " and Rick Fenton"
REASON:
I made the change to add additional information Irecalled after the deposition to make my answer morecomplete.
58
10
Add " I did help Fred Lee run the seismic machinewhen Fred and I rewrote the work instructions for thattest after they had already pre-tested a whole lot ofthe batteries."
REASON:
I made the change to add additional information Irecalled after the deposition to make my answer morecomplete.
60
5
At beginning add " No, it was not seismictesting."
REASON:
I made the change to add additional information Irecalled after the deposition to make my answer morecomplete.
61
3
Should be " No."
REASON:
I made the change to add additional information Irecalled after the deposition to make my answer morecomplete.
67
1
Delete " it"
REASON:
I made the change to correct a transcription mistake.
73
19
Add " These units are not loaded."
REASON:
I made the change to add information I recalled aftermy deposition to make my answer more complete.
75
20
" time, no" should be " time"
REASON:
I made the change to clarify my answer.
77
3
" jack coupling" should be " vacuumingand"
REASON:
I made the change to correct a transcription mistake.
77
11
should be " to the cleaning room."
REASON:
I made the change to add information I recalled aftermy deposition to make my answer more complete.
77
12
" level" should be " shelf"
REASON:
I made the change to correct my misstatement.
80
13
should be " yes"
REASON:
I made the change to clarify my answer.
94
9
" and" should be " in"
REASON:
I made the change to correct a transcription mistake.
98
19
Answer should read " That's what they told methey were firing me for, but I don't believe thatwas the reason they fired me."
REASON:
I made the change to clarify my answer and to make suremy answer is read in context with my answers to similarquestions as stated on pp. 101, 102, 103, 104.
99
23
At end add " or"
REASON:
I made the change to correct a transcription mistake.
102
21
" faster" should be " fresher"
REASON:
I made the change to correct a transcription mistake.
104
11
Insert " the" between " It's"and " questions"
REASON:
I made the change to clarify my answer.
122
22
Insert " or what it was" between "was" and " all"
REASON:
I made the change to clarify my answer.
Page
Line
Description
123
6
" to" should be " about"
REASON:
I made the change to correct a transcription mistake.
124
22
" up" should be " in"
REASON:
I made the change to correct a transcription mistake.
132
14
" a company that" should be " that thecompany"
REASON:
I made the change to correct a transcription mistake.
133
11
" hired" should be " fired"
REASON:
I made the change to correct a transcription mistake.
139
17
" they" should be " he"
REASON:
I made the change to correct a transcription mistake.
139
19
" they" should be " he"
REASON:
I made the change to correct a transcription mistake.
143
10
Delete first " That"
REASON:
I made the change to correct a transcription mistake.
149
7
Insert " over" between " all" and" in"
REASON:
I made the change to clarify my answer.
149
7
" cap" should be " caps"
REASON:
I made the change to clarify my answer.
167
11
Insert " they said" between "reason" and " they"
Add " As I said earlier, I believe they fired mefor asking questions about some of the company'spractices."
REASON:
I made the change to clarify my answer and make sure myanswer is read in context with my answers to similarquestions on pp. 101-104.
REASON:
I made the change to correct a transcription mistake.
170
3
" detonators" should be " loads"
REASON:
I made the change to correct my misstatement.
170
4
" detonator caps" should be "loads"
REASON:
I made the change to correct my misstatement.
170
6
" that" should be " where"
REASON:
I made the change to correct a transcription mistake.
170
8
Insert " by the company" between "controlled" and " in"
REASON:
I made the change to clarify my answer.
185
8
Insert " not" between " was" and" a" in the first sentence.
REASON:
I made the change to reflect what I thought I said atthe deposition.
187
7
" the-" should be " Channel 22about."
REASON:
I made the change to finish my answer.
Lowell Kissinger
Lowell A. Kissinger
DEPOSITION OF JOAN R. HARMON
CHANGES AND CORRECTIONS
Page
Line
Description
6
22
" Heat induction" should be " acetylenetorch"
REASON:
I made the change to correct my misstatement.
7
9
" I do not know" should be " yes"
REASON:
I made the change to add information I recalled afterthe deposition to make my answer more accurate.
10
21
" load" should be " blow"
REASON:
I made the change to correct a transcription mistake.
13
3
At end add " we would also put degreaser andprimer on the boards themselves."
REASON:
I made the change to add information I recalled afterthe deposition to make my answer more complete.
20
9 & 18
Add " If you soldered the wire you could tell ifit soldered the same."
Page
Line
Description
REASON:
I made the change to add information I recalled afterthe deposition to make my answer more complete.
23
18
Should be " Rick Solomon, Sarah Forrest"
REASON:
I made the change to add information I recalled afterthe deposition to make my answer more complete.
28
7
Should be " I vacuumed and poured thepotting."
REASON:
I made the change to add information I recalled afterthe deposition to make my answer more complete.
30
12
Should be " No"
REASON:
I made the change to add information I recalled afterthe deposition to make my answer more complete.
31
9
Delete period and add " the components and alsopicked it off."
REASON:
I made the change to add information I recalled afterthe deposition to make my answer more complete.
37
22-23
" -I cannot remember at this time." should be" the connectors."
REASON:
I made the change to add information I recalled afterthe deposition to make my answer more complete.
42
20
At end add " They had trouble with detonatorsbeing corroded-not up to standard. Bonnie Payne-Meadtold me the contract she was working on had beenreworked so many times she was scared of loading them.Not long after she told me that, she had 2 tips of herfingers blown off."
REASON:
I made the change to add information I recalled afterthe deposition to make my answer more complete.
48
10
" coils" should be " bobbins"
REASON:
I made the change to correct my misstatement.
48
12
" coils" should be " bobbins"
REASON:
I made the change to correct my misstatement.
48
14
" coils" should be " bobbins"
REASON:
I made the change to correct my misstatement.
48
19
" coils" should be " bobbins"
REASON:
I made the change to correct my misstatement.
55
22
Add " B.J. Brown works in shipping and also takescare of the detonators. In January, 1992, he went outto the magazine (a barn) to clean it up because acontractor was coming to the shop. He found that therats had been into the detonators and they wereunshunted. He got scared and came back to the shop toget the safety man to help him. The detonators arestored upstairs on the 3rd floor, where it is eitherhot or cold-no controlled temperature."
REASON:
I made the change to add information I recalled afterthe deposition to make my answer more complete.
58
3
should be " I tested switches on the 662-5contract. I buzzed out the wires to connector on theswitchboard. I ran tests on the 662-5 making sure thatthere were no shorts on the connections."
REASON:
I made the change to add information I recalled afterthe deposition to make my answer more complete.
60
14
should be " I have seen several times where DonKonz and Dave Allen would take the acetylene torch andreopen the units. I don't know if they were fixingthem or not."
REASON:
I made the change to add information I recalled afterthe deposition to make my answer more complete.
Page
Line
Description
62
18
should be " Melody Bretland told me when shereceived her stamp that she thought it was a PiquaEngineering stamp. She had no idea it was a governmentstamp and that she could go to jail for using it."
REASON:
I made the change to add information I recalled afterthe deposition to make my answer more complete.
66
7
Add " Jeanie Scott who was the solderinginstructor at that time, told me that the wire hadflunked the solderability test but we had to use itanyway."
REASON:
I made the change to add information I recalled afterthe deposition to make my answer more complete.
68
16
" rid enough of" should be " writtenup"
REASON:
I made the change to correct a transcription mistake.
70
7
" can" should be " jar"
REASON:
I made the change to correct a transcription mistake.
71
19
" Moon" should be " Mona"
REASON:
I made the change to correct a transcription mistake.
73
13
After " chemicals" add " detonatorsgoing off"
REASON:
I made the chancre to add information I recalled afterthe deposition to make my answer more complete.
84
22
" solder" should be " iron"
REASON:
I made the change to correct my misstatement.
REASON:
I made the change to add information I recalled afterthe deposition to make my answer more accurate.
88
12
Add " For the first 3 years I worked at PEI, theauditors would come to the shop. Before they came DonKonz would gather all assembly people around his deskand say that the auditors are not your friends and ifthey ask you any questions refer them to yoursuperiors."
REASON:
I made the change to add information I recalled afterthe deposition to make my answer more complete.
Joan R. Harmon
Joan R. Harmon