Circuit Judge, concurring:
Although I concur fully in Judge Alti-mari’s well-reasoned opinion, I write separately because I would put the case even more strongly than he did.
Untruthful testimony by a witness, which has not been suborned by his lawyer, does not, standing alone, constitute fraud upon the court. Serzysko v. Chase Manhattan Bank, 461 F.2d 699, 702 (2d Cir.), cert. denied, 409 U.S. 883, 93 S.Ct. 173, 34 L.Ed.2d 139 (1972); Bulloch v. United States, 721 F.2d 713, 718-19 (10th Cir.1983); Great Coastal Express, Inc. v. International Brotherhood of Teamsters, 675 F.2d 1349 (4th Cir.1982), cert. denied, 459 U.S. 1128, 103 S.Ct. 764, 74 L.Ed.2d 978 (1983). This is particularly true where, as here, the testimony is given during a pretrial deposition. Until the deposition is placed in evidence, it does not become part of the case before the court. See Miles v. Ryan, 484 F.2d 1255, 1261 n. 4 (3d Cir.1973); Demara v. Employers Liability Assurance Corp., 250 F.2d 799, 800 (5th Cir.), cert. denied, 358 U.S. 845, 79 S.Ct. 69, 3 L.Ed.2d 79 (1958); United States v. Brookhaven, 134 F.2d 442, 447 (5th Cir.1943).
Accordingly, even if appellant was convinced that an opposing witness had testified falsely during his deposition, DR 7-102(B)(2) did not require appellant to disclose this to the court. The drafters of the Rule must have realized that it is one thing to be convinced of something; it is another thing to prove it. I can think of no better way for a lawyer to damage his client’s case than by making a pretrial accusation of perjury that he is unable to prove.