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Azco Biotech Inc. v. Qiagen

United States District Court, S.D. California

January 23, 2015

AZCO BIOTECH INC., a Nevada Corporation; and J ADAMS, an individual, Plaintiffs,
v.
QIAGEN, NV. a Netherlands holding company; STEVEN GORDON, an individual; JINGYUE JIU, an individual; JERZY OLEJNIK, an individual; INTELLIGENT BIO-SYSTEMS, INC., a Delaware Corporation; and DOES 1-50, inclusive, Defendants. INTELLIGENT BIO-SYSTEMS, INC., Counter Claimant,
v.
AZCO BIOTECH INC., Counter Defendant.

ORDER GRANTING DEFENDANTS' MOTION TO STRIKE ERRATA TO DEPOSITION OF PLAINTIFF J ADAMS [ECF No. 91]

DAVID H. BARTICK, Magistrate Judge.

On December 15, 2014, the Court denied without prejudice Defendants' motion to strike the errata to the deposition of Plaintiff J Adams ("Adams"). (ECF No. 81.) On January 15, 2015, following extensive meet and confer efforts, Defendants filed a new motion to strike the errata to Adams' deposition. (ECF No. 91.) Plaintiffs filed an opposition to Defendants motion on January 16, 2015. (ECF No. 94.) For the reasons set forth below, Defendants' motion is GRANTED.

Defendants seek to strike numerous changes to Adams' October 21, 2014 deposition that were set forth in a November 28, 2014 email from Plaintiffs' counsel to Defendants' counsel. Defendants contend this "errata" should be stricken because it fails to comply with the procedural and substantive requirements of Federal Rule of Civil Procedure 30(e), which provides:

On request by the deponent or a party before the deposition is completed, the deponent must be allowed 30 days after being notified by the officer that the transcript or recording is available in which:
(A) to review the transcript or recording; and
(B) if there are changes in form or substance, to sign a statement listing the changes and the reasons for making them.

FED. R. CIV. P. 30(e)(1).

A. Procedural Requirements

Defendants contend the errata fails to comply with several of Rule 30(e)'s procedural requirements, including that the errata was untimely, was not signed by Adams, and was not accompanied by a statement of reasons for the changes. Plaintiffs' opposition makes no attempt to explain the procedural violations. The Court addresses each requirement in turn.

1. Timeliness

Defendants contend the errata to Adams' testimony was not made within the 30-day period permitted by Rule 30(e)(1) because the changes were not transmitted to Defendants' counsel until 31 days after the deposition transcript became available. (ECF No. 91 at 4:4:4-7, 23-26.) However, the 30-day period commences after the deponent is notified by the court reporter that the transcript is available. FED. R. CIV. P. 30(e)(1). Here, Defendants' motion does not clearly demonstrate when Adams or his counsel were notified by the court reporter that Adams' deposition transcript was available for review. Rather, Defendants' motion asserts the transcript "became available" on October 28, 2014. (ECF No. 91 at 4:4-5.) Nothing in the record establishes that the transcript "became available" to Adams on that date.

Moreover, even if the Court were to accept Defendants' unsupported assertion that Adams' deposition transcript "became available" on October 28, 2014, Plaintiffs' counsel's attempted errata on November 28, 2014 is nevertheless timely. Although the errata was sent on the 31st day, the 30th day fell on a legal holiday ( i.e., Thanksgiving Day). Thus, pursuant to Federal Rule of Civil Procedure 6(a)(1), Plaintiffs' deadline under Rule 30(e) was extended. Accordingly, the Court rejects Defendants' argument that the errata to Adams' deposition testimony was untimely.[1]

2. Signature

As set forth above, Rule 30(e) requires that a deponent "sign a statement listing the changes." FED. R. CIV. P. 30(e)(1)(B). In Adams v. Allied Security Holdings, 236 F.R.D. 651, 652 (C.D. Cal. 2006), the court concluded the plaintiff failed to comply with this requirement when the "plaintiff's counsel submitted proposed changes to plaintiff's deposition to defendants without obtaining plaintiff's signature." Id. The court emphatically rejected the attorney's changes: "Since the deposition was of plaintiff, not plaintiff's counsel, only plaintiff ...


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