Evans v. Horn, et al, No. 3:2006cv00877 - Document 110 (S.D. Cal. 2009)
Court Description: ORDER denying 95 plaintiff's Motion to Suppress Deposition. Signed by Magistrate Judge Ruben B. Brooks on 2/4/09. (All non-registered users served via U.S. Mail Service).(tkl)
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Evans v. Horn, et al Doc. 110 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 Civil No. 06cv877 JM(RBB) TERRY DON EVANS, ) ) ) Plaintiff, ) v. ) ) COUNTY OF SAN DIEGO; WILLIAM B. ) ) KOLENDER, Sheriff; DR. EARL GOLDSTEIN, County Sheriff’s ) Medical Director; BRUCE LEICHT, ) ) Medical Administrator, ) Defendants. ) ) ORDER DENYING PLAINTIFF’S MOTION TO SUPPRESS DEPOSITION [DOC. NO. 95] 18 19 On December 1, 2008, Plaintiff Terry Don Evans, a state 20 prisoner proceeding pro se and in forma pauperis, filed a Motion to 21 Suppress Deposition [doc. no. 95] asking the Court to suppress a 22 deposition taken of him that he refuses to sign. 23 Defendants have not filed an opposition. 24 7.1(f)(3)(c) provides that failure to oppose a motion may 25 constitute consent to it, this Court will evaluate the merits of 26 Evans’s request. 27 // 28 // To date, Although local rule S.D. Cal. Civ. L.R. 7.1(f)(3)(c). 1 06cv00877 JM(RBB) Dockets.Justia.com 1 2 DISCUSSION At the beginning of Evans’s deposition, counsel for the 3 Defendants explained the deposition process. “You’ll get a chance 4 to review the transcript in this case . . . . You’ll get a chance 5 to read through and make any changes that you want to make.” 6 (Decl. Evans Attach #1 Not. Lodgment Mot. Suppress Dep. 7:7-12, 7 Oct. 15, 2008.) 8 would agree to allow you 30 days to review that transcript, make 9 any changes you need to, and then sign it under penalty of perjury When the deposition ended, counsel stated, “I 10 and send it back to my office.” 11 correct errors was explained to Evans. 12 mark out the incorrect statement and write in what you believe is 13 correct. 14 say what page and what line is changed, and you can write in that 15 there . . . . (Id. at 57:12-16.) 16 (Id. at 55:10-13.) The process to “What you can do is you can And then you’ll just –- there’s usually a sheet that will Evans claims that the October 15, 2008, deposition taken of 17 him should be suppressed because he has been prejudiced by 18 receiving an open copy of the transcript. 19 Attach. #1 Mem. P.& A. 1-2.) 20 he misunderstood and did not recognize the importance of three 21 specific questions, so he refused to sign the deposition 22 transcript. 23 challenged questions are as follows: 24 25 26 27 28 (Mot. Suppress Dep. Additionally, Plaintiff explains that (Mot. Suppress Dep. Attach. #2 Decl. Evans 2.) The Q. Was that in the Vista Detention Facility? [Where and when injury occurred]; Q. So it seemed like the doctors that you saw before that orthopedic specialist did not know exactly what was wrong with the knee? Q. . . . is there any individual person who you’re saying treated you improperly having to do with your medical care or delay of surgery? 2 06cv00877 JM(RBB) 1 Id. at 2; see also Decl. Evans Attach #1 Not. Lodgment Mot. 2 Suppress Dep. 12, 16-17, 31-32. 3 deposition transcript, which he did not sign, along with a page 4 listing ten nonsubstantive revisions. 5 Evans filed a copy of the (Id. at 58-9.) Plaintiff cites section 2025(q)(1) of the California Code of 6 Civil Procedure as authority for his motion to suppress. (Not. 7 Mot. Suppress Dep. 2.) 8 amended, and its provisions are now contained in section 2025.520 9 of the California Code of Civil Procedure. Section 2025(q)(1), however, has been Like its predecessor, 10 section 2025.520(b) states that a deponent may “refuse to approve 11 the [deposition] transcript by not signing it.” 12 Code § 2025.520(b)(West 2007). 13 or the substance of the answer to any question and may approve or 14 refuse to approve the transcript by means of a letter to the 15 deposition officer.” 16 2007). 17 does not affect its use. 18 2007). 19 accompanied by a meet and confer declaration under Section 20 2016.040, the court may determine that the reasons given for the 21 failure or refusal to approve the transcript require rejection of 22 the deposition in whole or in part.” 23 2025.520(g)(West 2007). 24 Cal. Civ. Proc. “[T]he deponent may change the form Cal. Civ. Proc. Code § 2025.520(c)(West Evans refuses to approve his deposition transcript, which Cal. Civ. Proc. Code § 2025.520(f)(West “[O]n a seasonable motion to suppress the deposition, Cal. Civ. Proc. Code § The California Code of Civil Procedure does not support 25 Evans’s motion to suppress his deposition. First, the Plaintiff’s 26 declaration is insufficient to constitute a “meet and confer” 27 declaration. 28 deposition do not warrant suppressing the deposition testimony. Second, the reasons given for suppressing the 3 06cv00877 JM(RBB) 1 Any misunderstanding by Evans can be explained at trial or, in the 2 context of a motion, in an explanatory declaration. 3 more importantly, Plaintiff’s Complaint seeks relief pursuant to 42 4 U.S.C. § 1983. 5 Federal Rules of Civil Procedure. 6 Finally, and His federal civil rights case is governed by the Fed. R. Civ. P. 1. Before the 1993 Amendment to Rule 30(e), a deponent was 7 required to sign the transcript of deposition testimony. 8 Civ. P. 30 advisory committee notes on 1993 amendments; see also 7 9 James Wm. Moore et al., Moore’s Federal Practice § 30App.08[1], at 10 30App.-22 (3d ed. 2008). 11 rationale: 12 13 14 15 16 17 Fed. R. The advisory committee notes explain the Various changes are made in this subdivision to reduce problems sometimes encountered when depositions are taken stenographically. Reporters frequently have difficulties obtaining signatures -- and the return of depositions -- from deponents. Under the revisions prefiling review by the deponent is required only if requested before the deposition is completed. If review is requested, the deponent will be allowed 30 days to review the transcript and to indicate any changes in form or substance. Signature of the deponent will be required only if review is requested and changes are made. 18 Id. at 30App.-26 (quoting Fed. R. Civ. P. 30 advisory committee 19 notes on 1993 amendment to 30(e)). 20 Since 1993, the Federal Rules of Civil Procedure do not 21 require a deponent to review and sign a deposition transcript, but 22 Rule 30(e) provides an opportunity to do so upon a party’s or the 23 deponent’s request. 24 the transcript is requested, the deponent may make changes to its 25 form or substance but must provide a signed statement listing the 26 alterations and reasons for each change. 27 within thirty days of being notified that the transcript has been 28 completed. Id. Fed. R. Civ. P. 30 (e)(1)-(2). Id. When review of This must be done Changes made to a deposition transcript must have 4 06cv00877 JM(RBB) 1 a legitimate purpose. 2 Inc., 397 F.3d 1217, 1224-1225 (9th Cir. 2005.) 3 fact that the deponent refuses to sign the deposition transcript 4 does not make it inadmissible. 5 Inc., 90 Civ. 6398 (BSJ), 1996 U.S. Dist. LEXIS 7026, at *4 6 (S.D.N.Y. May 23, 1996). 7 Hambleton Bros. Lumber Co. v. Balkin Enter., Nevertheless, the EEOC v. Nat’l Cleaning Contractors, If the deponent requested review but did not sign a statement 8 listing his requested changes within the thirty day period 9 allowed, the deposition officer must indicate in the certificate 10 that review was requested but no changes were received. 11 Civ. P. 30(e)(2); William W. Schwarzer et al, Cal. Prac. Guide: 12 Fed. Civ. Pro. Before Trial § 11:1598, at 11-213 to 14 (2008). 13 Fed. R. Evans also seeks to suppress the use of his deposition 14 testimony, pursuant to Rule 32(d)(4) of the Federal Rules of Civil 15 Procedure. 16 his supporting memorandum, he complains that “[w]hen Plaintiff 17 received [the] deposition[,] it was opened.” 18 provides as follows: 19 the testimony -- or prepared, signed, certified, sealed, endorsed, 20 sent, or otherwise dealt with the deposition –- is waived unless a 21 motion to suppress is made promptly after the error or 22 irregularity becomes known or, with reasonable diligence, could 23 have been known.” 24 has been prejudiced by the possibility of a person reading or 25 copying the open copy of the transcript that was delivered to him, 26 but Evans has not shown that any person has actually done so or 27 that prejudice has occurred as a result. (Mot. Suppress Dep. Attach. #1 Mem. P. & A. 2.) (Id.) In Rule 32(d)(4) “An objection to how the officer transcribed Fed. R. Civ. P. 32(d)(4). Plaintiff claims he This charge is an 28 5 06cv00877 JM(RBB) 1 insufficient basis to suppress the use of his deposition 2 testimony. 3 “The question of the admissibility of evidence at trial is 4 separate from that of suppressing the deposition . . . .” 5 v. W.T. Grant Co., 100 F.2d 153, 155 (5th Cir. 1938.) 6 raised by Evans is whether to suppress the entire deposition, not 7 whether certain passages will be admissible at trial. 8 F.2d at 155. 9 testimony because he “misunderstood the import of the questions. The issue Cervin, 100 Evans asks the Court to suppress his deposition 10 (Mot. Suppress Dep. Attach. #1 P. & A. 2.) 11 error, I refused to sign the transcript.” 12 Cervin “When I realized the (Id.) The deposition should not be suppressed in its entirety if any 13 part is admissible. Atchinson, T. & S.F. Ry. Co. v. Ritterbusch, 14 198 F. 46, 53. 15 misunderstood certain questions, many others are not challenged. 16 Thus, complete suppression is not appropriate. 17 changes to the text of the transcript shows that the testimony has 18 not been impaired by failure to review and correct it. 19 partially completed depositions, where the witness refused to 20 answer some questions and lacked information needed to respond to 21 others, have been admissible in evidence. 22 Speaker Corp., 212 F. Supp. 164 (E.D. Wisc. 1962). 23 Evans retains the right to object to the admission of deposition 24 testimony at trial. 25 Evidence states that “[a]lthough relevant, evidence may be excluded 26 if its probative value is substantially outweighed by the danger of 27 unfair prejudice, confusion of the issues, or misleading the jury . 28 . . .” (8th Cir. 1912). Although Plaintiff argues that he Evans’s ten minor Even Re-Trac Corp. v. J. W. Of course, For example, Rule 403 of the Federal Rules of Fed. R. Evid. 403. Thus, even though Plaintiff refuses to 6 06cv00877 JM(RBB) 1 sign the transcript, the Court finds that his deposition should not 2 be suppressed. Evans’s Motion [doc. no. 95] is DENIED. 3 4 DATE: February 4, 2009 RUBEN B. BROOKS United States Magistrate Judge 5 6 cc: Judge Miller All Parties of Record 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 K:\COMMON\BROOKS\CASES\1983\PRISONER\EVANS0877\Order re mot to suppress.wpd 06cv00877 JM(RBB)
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