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Evans v. County of San Diego

February 4, 2009


The opinion of the court was delivered by: Ruben B. Brooks United States Magistrate Judge


On December 1, 2008, Plaintiff Terry Don Evans, a state prisoner proceeding pro se and in forma pauperis, filed a Motion to Suppress Deposition [doc. no. 95] asking the Court to suppress a deposition taken of him that he refuses to sign. To date, Defendants have not filed an opposition. Although local rule 7.1(f)(3)(c) provides that failure to oppose a motion may constitute consent to it, this Court will evaluate the merits of Evans's request. S.D. Cal. Civ. L.R. 7.1(f)(3)(c).


At the beginning of Evans's deposition, counsel for the Defendants explained the deposition process. "You'll get a chance to review the transcript in this case . . . . You'll get a chance to read through and make any changes that you want to make." (Decl. Evans Attach #1 Not. Lodgment Mot. Suppress Dep. 7:7-12, Oct. 15, 2008.) When the deposition ended, counsel stated, "I would agree to allow you 30 days to review that transcript, make any changes you need to, and then sign it under penalty of perjury and send it back to my office." (Id. at 55:10-13.) The process to correct errors was explained to Evans. "What you can do is you can mark out the incorrect statement and write in what you believe is correct. And then you'll just --- there's usually a sheet that will say what page and what line is changed, and you can write in that there . . . . (Id. at 57:12-16.)

Evans claims that the October 15, 2008, deposition taken of him should be suppressed because he has been prejudiced by receiving an open copy of the transcript. (Mot. Suppress Dep. Attach. #1 Mem. P.& A. 1-2.) Additionally, Plaintiff explains that he misunderstood and did not recognize the importance of three specific questions, so he refused to sign the deposition transcript. (Mot. Suppress Dep. Attach. #2 Decl. Evans 2.) The challenged questions are as follows:

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?

Id. at 2; see also Decl. Evans Attach #1 Not. Lodgment Mot. Suppress Dep. 12, 16-17, 31-32. Evans filed a copy of the deposition transcript, which he did not sign, along with a page listing ten non-substantive revisions. (Id. at 58-9.)

Plaintiff cites section 2025(q)(1) of the California Code of Civil Procedure as authority for his motion to suppress. (Not. Mot. Suppress Dep. 2.) Section 2025(q)(1), however, has been amended, and its provisions are now contained in section 2025.520 of the California Code of Civil Procedure. Like its predecessor, section 2025.520(b) states that a deponent may "refuse to approve the [deposition] transcript by not signing it." Cal. Civ. Proc. Code § 2025.520(b)(West 2007). "[T]he deponent may change the form or the substance of the answer to any question and may approve or refuse to approve the transcript by means of a letter to the deposition officer." Cal. Civ. Proc. Code § 2025.520(c)(West 2007). Evans refuses to approve his deposition transcript, which does not affect its use. Cal. Civ. Proc. Code § 2025.520(f)(West 2007). "[O]n a seasonable motion to suppress the deposition, accompanied by a meet and confer declaration under Section 2016.040, the court may determine that the reasons given for the failure or refusal to approve the transcript require rejection of the deposition in whole or in part." Cal. Civ. Proc. Code § 2025.520(g)(West 2007).

The California Code of Civil Procedure does not support Evans's motion to suppress his deposition. First, the Plaintiff's declaration is insufficient to constitute a "meet and confer" declaration. Second, the reasons given for suppressing the deposition do not warrant suppressing the deposition testimony.

Any misunderstanding by Evans can be explained at trial or, in the context of a motion, in an explanatory declaration. Finally, and more importantly, Plaintiff's Complaint seeks relief pursuant to 42 U.S.C. § 1983. His federal civil rights case is governed by the Federal Rules of Civil Procedure. Fed. R. Civ. P. 1.

Before the 1993 Amendment to Rule 30(e), a deponent was required to sign the transcript of deposition testimony. Fed. R. Civ. P. 30 advisory committee notes on 1993 amendments; see also 7 James Wm. Moore et al., Moore's Federal Practice § 30App.08[1], at 30App.-22 (3d ed. 2008). The advisory committee notes explain the rationale:

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 pre-filing 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 ...

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