United States ex rel. Burch v. Piqua Engineering, Inc. , 152 F.R.D. 565 ( 1993 )

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 Pi-qua, an Ohio-based weapons supplier to the United States government, defrauded the United States by, inter alia, “falsely certifying] that it complied with contractually required safety and quality standards.” Doe. 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 of unconvineing, 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 maldng 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.¹ 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.

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 “failing] 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.

APPENDIX

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 training fuze. I don’t recall the work order number, but I think it was for Martin Marietta. Then I went to work on the Mark 48”

REASON: I made the change to add information that I recalled after my deposition to make my answer more complete.

13 1-4 Should be “The computer test would check to see how long the whole unit would take to time out and the reading of the time would print out on a computer sheet.”

REASON: I made the change to re-word my answer to make it more accurate.

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 the failures on paper.”

REASON: I made the change to make my answer more accurate.

16 II “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 very long board called a position indicator. The only thing I remember on this job is that I put terminals into the board. Then I recall working on the escapement assembly. This job was mechanical assembly. Some of the problems on this job were the gears and pinions being oversized or undersized. This would cause the escapement assembly to not run smoothly.”

REASON: I made the change to add information I recalled after my 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 order as the manifold assembly.”

REASON: I made the change to add information that I recalled after the deposition to make my answer more complete.

76 20-21 Should be “Mr. Scarbrough had called a meeting and said that anyone who was involved with OSHA or with the news media was wrong and they should not be doing this to him. It was prior to the layoff and after the OSHA investigation and when people talked to the news media. One of the employees had a tape recorder hidden on their person during the meeting. Mr. Lutz was asking questions about the meeting.”

Page Line Description

REASON: I made the change to add information that I recalled after the deposition to make my answer more complete.

86 3 Should be “All I recall is I met with him once on 1-2-90.”

REASON: I made the change to add information that I recalled after 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 in Washington and Gene Dehart with the U.S. Department of Labor.”

REASON: I made the change to add information I recalled after my deposition to make my answer more accurate.

93 8-9 “Then I can’t think of the one little guy’s name” should be “And Ken Carey.”

REASON: I made the change to add information I recalled after my 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 after my deposition to make my answer more complete.

105 13 Should be “Yes, they were work instruction numbers.”

REASON: I made the change to add information I recalled after my deposition to make my answer more complete.

108 24 Should be “This is a housing assembly test. Some days I had more rejects on them but apparently this particular time I didn’t have that many. I didn’t always write things down in my books. Different work orders had different failure rates than others, no matter if it was a S & A device or just a part that went into the assembly of a S & A device.”

REASON: I made the change to add information I recalled after my 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 I started getting a premium when I was doing the leak tests.”

REASON: I made the change to add information I recalled after my deposition to make my answer more complete.

137 15 Should be “I have seen Linda Sexauer rush through the vacuuming and pressurizing. She might only vacuum once then pressurize then seal. She said it wouldn’t hurt anything and this was one of the ways she told me I could do it. I did it that way a couple of times when she was rushing me, but when I started on my own I followed the work instructions. I didn’t know if anyone else had told her that she could do it that way or not. She stressed not to do this if the government was around and I didn’t take any chances. I didn’t do this because the job should be done as instructed on the work instructions.”

REASON: I made the change to add information I recalled after my deposition to make my answer more complete.

158 7 Should be “I did some inspection on the MK 48 soldering and on the potted boards and on the environmental test. Also on the leak test job.”

Page Line Description

REASON: I made the change to add information I recalled after my deposition to make my answer more complete.

161 5 Add “Jane Brandt, Jackie Russell, Lowell Kissinger, Dave Allen and more that I can’t remember.”

REASON: I made the change to add information I recalled after my 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 recalled after my deposition to make my testimony more complete.

193 14 Should be “unemployed.”

REASON: 1 made the change to add information that I recalled after 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 after the deposition to make my answer more complete.

16 23 At the beginning add “My next job was at Forward Motions in Dayton for about 3 months.”

REASON: I made the change because in reviewing my deposition transcript I realized that I had forgotten about “Forward Motions.”

16 23 “Friend” should be “Freund”

REASON: 1 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 did not”

REASON: I made the change to correct a transcription mistake.

27 21 “was not right.” should be “it was not coated

REASON: 1 made the change to add information I recalled after my 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 I recalled after the deposition to make my answer more complete.

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 I recalled after my deposition to make my answer more accurate.

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 “department boss was”

REASON I made the change to make my answer more accurate.

53 14 At end add “and also people on the second shift”

REASON I made the change to add information I recalled after my deposition to make my testimony more complete.

55 12 “He went down,” should be “I went down with”

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 I recalled after the deposition to make my answer more complete.

58 10 Add “I did help Fred Lee run the seismic machine when Fred and I rewrote the work instructions for that test after they had already pre-tested a whole lot of the batteries.”

REASON: I made the change to add additional information I recalled after the deposition to make my answer more complete.

60 5 At beginning add “No, it was not seismic testing.”

REASON: I made the change to add additional information I recalled after the deposition to make my answer more complete.

61 3 Should be “No.”

REASON: I made the change to add additional information I recalled after the deposition to make my answer more complete.

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 after my 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 “vacuuming and”

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 after my 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 me they were firing me for, but I don’t believe that was the reason they fired me.”

REASON: I made the change to clarify my answer and to make sure my answer is read in context with my answers to similar questions 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 II 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 Description Line

123 “to” should be “about” 6

REASON: the change to correct a transcription mistake. I made

124 “up” should be “in” 22

REASON: the change to correct a transcription mistake. I made

132 “a that” should be “that the 14

REASON: the change to correct a transcription mistake. I made

133 “hired” should be “fired” II

REASON: the change to correct a transcription mistake. I made

139 “they” should be “he” 17

REASON: the change to correct a transcription mistake. I made

139 “they” should be “he” 19

REASON: the change to correct a transcription mistake. I made

143 Delete first “That” 10

REASON: the change to correct a transcription mistake. I made

149 Insert “over” between “all” and “in” 7

REASON: the change to clarify my answer. I made

149 “cap” should be “caps” 7

REASON: the change to clarify my answer. I made

167 Insert “they said” between “reason” and “they” Add “As I said earlier, I believe they fired me for asking questions about some of the company’s practices.” II

REASON: I made the change to clarify my answer and make sure my answer is read in context with my answers to similar questions 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 at the deposition.

187 7 “the—” should be “Channel 22 about.”

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 “acetylene torch”

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 after the 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 and primer on the boards themselves.”

REASON: I made the change to add information I recalled after the deposition to make my answer more complete.

20 9 & 18 Add “If you soldered the wire you could tell if it soldered the same.”

Page Line Description

REASON: I made the change to add information I recalled after the 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 after the deposition to make my answer more complete.

28 7 Should be “I vacuumed and poured the potting.”

REASON: I made the change to add information I recalled after the deposition to make my answer more complete.

30 12 Should be “No”

REASON: I made the change to add information I recalled after the deposition to make my answer more complete.

31 9 Delete period and add “the components and also picked it off.”

REASON: I made the change to add information I recalled after the 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 after the deposition to make my answer more complete.

42 20 At end add “They had trouble with detonators being corroded—not up to standard. Bonnie Payne-Mead told me the contract she was working on had been reworked so many times she was scared of loading them. Not long after she told me that, she had 2 tips of her fingers blown off.”

REASON: I made the change to add information I recalled after the 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 takes care of the detonators. In January, 1992, he went out to the magazine (a barn) to clean it up because a contractor was coming to the shop. He found that the rats had been into the detonators and they were unshunted. He got scared and came back to the shop to get the safety man to help him. The detonators are stored upstairs on the 3rd floor, where it is either hot or cold—no controlled temperature.”

REASON: I made the change to add information I recalled after the deposition to make my answer more complete.

58 3 should be “I tested switches on the 662-5 contract. I buzzed out the wires to connector on the switchboard. I ran tests on the 662-5 making sure that there were no shorts on the connections.”

REASON: I made the change to add information I recalled after the deposition to make my answer more complete.

60 14 should be “I have seen several times where Don Konz and Dave Allen would take the acetylene torch and reopen the units. I don’t know if they were fixing them or not.”

REASON: I made the change to add information I recalled after the deposition to make my answer more complete.

Page Line Description

62 18 should be “Melody Bretland told me when she received her stamp that she thought it was a Piqua Engineering stamp. She had no idea it was a government stamp and that she could go to jail for using it.”

REASON: I made the change to add information I recalled after the deposition to make my answer more complete.

66 7 Add “Jeanie Scott who was the soldering instructor at that time, told me that the wire had flunked the solderability test but we had to use it anyway.”

REASON: I made the change to add information I recalled after the deposition to make my answer more complete.

68 16 “rid enough of’ should be “written up”

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 “detonators going off’

REASON: I made the chancre to add information I recalled after the 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 after the deposition to make my answer more accurate.

12 Add “For the first 3 years I worked at PEI, the auditors would come to the shop. Before they came Don Konz would gather all assembly people around his desk and say that the auditors are not your friends and if they ask you any questions refer them to your superiors.”

REASON: I made the change to add information I recalled after the deposition to make my answer more complete.

Joan R. Harmon

Joan R. Harmon

1 . 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.)