Opinion
Proceeding on application by defendant to change an answer in a deposition. The District Court, Layton, J., held that defendant was not entitled to amend transcript of testimony of a witness taken by deposition by changing a certain answer on a material point from ‘ No’ to ‘ Yes' when it did not appear that ‘ Yes' was the only sensible answer that the witness could have made.
Motion denied.
See also 19 F.R.D. 201.
This is an action for letters patent pursuant to 35 U.S.C. § 146. Clarence Johnson was called as a witness by plaintiffs and his deposition as taken before a notary who was also the reporter, on June 5, 1957. By stipulation, it was agreed that the reading and subscribing of the deposition by the witness be waived. The deposition was filed with the Clerk of this Court on August 5, 1957. Thereafter, on September 16, 1957, defendant filed a motion under Rules 30 and 32 Fed.Rules Civ.Proc., 28 U.S.C.A., to amend the transcript of testimony of Johnson. The subject matter of the amendment concerns the following question and answer:
‘ (e) Submission to Witness; Changes; Signing. When the testimony is fully transcribed the deposition shall be submitted to the witness for examination and shall be read to or by him, unless such examination and reading are waived by the witness and by the parties. 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. The deposition shall then be signed by the witness, unless the parties by stipulation waive the signing or the witness is ill or cannot be found or refuses to sign. If the deposition is not signed by the witness, the officer shall sign it and state on the record the fact of the waiver or of the illness or absence of the witness or the fact of the refusal to sign together with the reason, if any, given therefor; and the deposition may then be used as fully as though signed, unless on a motion to suppress under Rule 32(d) the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part.’
The defendant's motion is to amend by substituting the answer ‘ yes' for ‘ no’ . In support of the motion, the defendant has filed three affidavits, one by Johnson and two by interested witnesses, to the effect that the answer was actually ‘ yes' and, in any event, a reading of the transcript would immediately disclose that the only obvious answer was ‘ yes'. To the contrary, the plaintiff has filed three affidavits, all by interested persons, to the effect that the answer given by Johnson was ‘ no’ and, moreover, that such answer was the only logical answer in the light of context.
Hugh M. Morris and Andrew B. Kirkpatrick, Jr. (of Morris, Steel, Nichols & Arsht), Wilmington, Del., for plaintiffs.
Thomas S. Donnelly, Detroit, Mich., of counsel.
C. Waggaman Berl, Jr. (of Berl, Potter & Anderson), Wilmington, Del., for defendant.
‘ Q. You have spoken of both parallel motion tracers and universal tracers. Could either be used on the lathe as shown in Exhibit C? A. No, sir.’
LAYTON, District Judge.
Not having been present at the examination, I am in no position to say whether the witness replied ‘ yes' or ‘ no’ . Nor does a careful reading of the transcript disclose to me that ‘ yes' was the only sensible answer that the witness could have made under the circumstances. Thus, I have no alternative but to treat this application as one to change an answer on a material point. While the facts are different, the rule laid down by Judge Inch in De Seversky v. Republic Aviation Corporation, D.C.N.Y., 2 F.R.D. 113, 115, is controlling. There is was said in part:
‘ Rule 30, Subdivision (e), contemplates a finished examination, an examination that is concededly finished except for certain errors and mistakes on immaterial matters. Such examination should not be considered finished if a witness seeks to recant his testimony or feels that to be ‘ truthful’ he must directly contradict the answers already given by him on most material points. To do otherwise is not only to create delay but make complex procedure which the very purpose of the Rule is to avoid.'
See also Colin v. Thompson, D.C., 16 F.R.D. 194, and particularly Downing v. Gasser, 8 Terry 273, 47 Del. 273, 90 A.2d 651, 652 where it was said:
Rule 30(e) of the Delaware Superior Court Rules Del.C.Ann., is identical with the Federal Rule.
‘ The De Seversky case points out that Fed.Rules Civ.Proc. rule 30(e), 28 U.S.C.A., contemplates an examination which is finished, except for errors and mistakes on immaterial matters. When a witness desires to directly contradict his previous answers on material matters, the examination is not ‘ finished’ . The distinction is important because the cited rule includes no express right of further examination upon the basis of the changed answers, and, certainly, no such change as the one requested here ought to be permitted without opportunity for such further examination.
‘ * * * The original answers must, of course, remain in the record. 4 Moore's Federal Practice Sec. 30, 20. Moreover, defendant must have the opportunity to examine the plaintiff further in the light of the new answers. If any unforeseen difficulty should arise during the taking of the further testimony, the parties may come back to the Court under Rule 30 for any proper relief.’
The defendant's motion to amend or to suppress will be denied leaving it to defendant by appropriate action under the discovery rules to reopen the deposition and correct or otherwise explain the controverted answer.