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Arce v. Chicago Transit Auth.

United States District Court, N.D. Illinois, Eastern Division

November 30, 2015

ISRAEL ARCE, Plaintiff,
v.
CHICAGO TRANSIT AUTHORITY, Defendant

Page 505

          For MR. Israel Arce, Plaintiff: Caroline Watson, John Chris Goodman, Pomper and Goodman, Chicago, IL.

         For Mr. Timothy Cardoff, Daniel Murphy, Defendants: Mona E Lawton, LEAD ATTORNEY, Chicago Transit Authority Law Department, Chief Attorney, Labor & Employment, Chicago, IL; Piemengie N. Hamisu, Priya Prakash Khatkhate, Chicago Transit Authority, Chicago, IL.

         For Chicago Transit Authority, Defendant: Mona E Lawton, LEAD ATTORNEY, Chicago Transit Authority Law Department, Chief Attorney, Labor & Employment, Chicago, IL; Piemengie N. Hamisu, LEAD ATTORNEY, Priya Prakash Khatkhate, Chicago Transit Authority, Chicago, IL.

          Judge Gary Feinerman.

Page 506

         MEMORANDUM OPINION AND ORDER

         SHEILA FINNEGAN, United States Magistrate Judge

         On June 29, 2015, Defendant Chicago Transit Authority (the " CTA" ) deposed Charlotte Arce, spouse of Plaintiff Israel Arce, based upon Plaintiff's Rule 26(a) disclosure that Mrs. Arce is a witness with relevant knowledge of his claims in this case.[1] At the conclusion of her deposition, Mrs. Arce reserved signature. On August 25, 2015, she signed and certified sixty-seven changes to her deposition answers. The CTA filed a " Motion to Strike the Errata Sheets for Charlotte Arce's Deposition" on September 29, 2015. (Doc. 132).[2] The motion asks that the errata changes be stricken in their entirety because they are untimely and beyond the scope of Rule 30(e)'s allowance of changes in " form or substance." For the reasons described below, the Court denies the CTAs motion without prejudice.

         DISCUSSION

         The CTA's timeliness and scope-of-changes arguments rest on Federal Rule of Civil Procedure 30(e)(1). The Rule provides that, upon request by a deponent or a party before a deposition is completed, " a 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). The Court considers the two arguments in turn.

         I. Timeliness

         The CTA first argues that Mrs. Arce did not complete her changes within the thirty-day deadline. Mrs. Arce was deposed on June 29, 2015. (Doc. 132-1, at 1). McCorkle

Page 507

Court Reporters recorded the deposition, and it prepared a certified letter on July 14, 2015 that stated that the deposition transcript was " now ready for reading and signing as required by law." (Doc. 132-2). Mrs. Arce was invited to make an appointment to read and sign the deposition within twenty-eight days from the date of the letter. ( Id. ). According to Mrs. Arce's declaration, she received the letter on July 25, 2015. (Doc. 137-1). The CTA agrees that this is the date when Mrs. Arce received notice, thus triggering the thirty-day period under Rule 30(e). (Doc. 137, at 2; Doc. 150, at 1).[3]

         In her declaration, Mrs. Arce represents that she " began [her] review and certification on August 21, 2015 and completed the review and errata sheets on August 24, 2015." (Doc. 137-1). However, it was not until the next day, August 25, 2015, that she appeared before a notary public and signed a statement certifying that " the foregoing transcript (with the errata sheets attached) accurately states the questions asked and the answers given by me as they now appear." (Doc. 132-3, at 1). Contrary to what Plaintiff argues, it is this latter date that the Court must consider when determining whether Mrs. Arce complied with Rule 30(e)'s thirty-day requirement. Welsh v. R.W. Bradford Transp., 231 F.R.D. 297, 298-99 (N.D. Ill. 2005); see also Sanny v. Trek Bicycle Corp., No. CIV. 11-2936 ADM/SER, 2013 WL 1912467, at *13 (D. Minn. May 8, 2013) (" Once the transcript or recording is available, the deponent or party making the request has 30 days to review and submit the corrections." ) (emphasis added).

         In Welsh, the court considered the plaintiff's argument that she needed only to finish (not certify) her changes within thirty days. In determining that Rule 30 requires certification and submission of the modifications to the deposition officer (i.e., the court reporter) within that period, rather than the deponent's mere completion of desired changes, the court reasoned:

It was not enough for her to fill out an errata sheet and date it at the bottom as she claimed she did on May 7th. First, until the actual certification on page 226 of the transcript was executed, notarized, and returned to the court reporter, the changes were obviously preliminary, and could have been withdrawn or modified. Phrased differently, until that time, the " changes" envisioned by the Rule existed only in the contemplation of Ms. Welsh and the defendants necessarily remained unaware of them, and the potential for surprise and abuse that the 30-day rule was designed to eliminate persisted.

Id. at 300-01.

         To bolster its reading of the Rule, the court relied upon the incoherence of the plaintiff's interpretation with the purpose of the Rule's time limit -- namely, eliminating " difficulties court reporters had in obtaining signatures . . . in a timely way." Id. at 300. Under the plaintiff's interpretation, the court reasoned, parties would be able to delay (whether by days or indefinitely) the ultimate certification and still comply with the deadline - a result that would render the time limit nugatory since the deposition might remain unfinished for a lengthy period. Id. at 301. Moreover, the court observed that " the few courts that have considered the issue have held that the changes must be submitted to the court reporter within the prescribed period." Id. (emphasis added) (citing Rios v. ...


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