MEMORANDUM OPINION AND ORDER
DAVID
L. HORAN, UNITED STATES MAGISTRATE JUDGE
Defendant
Zoccam Technologies, Inc. has filed a Motion to Strike
Plaintiff's Errata Sheet to His November 29, 2022
Deposition, see Dkt. No. 204 (the “Setliff
Errata Motion”), and a Motion to Strike Joan
Waller's Errata Sheet to Her January 4, 2023 Deposition
see Dkt. No. 207 (the “Waller Errata
Motion”).
United
States District Judge Jane J. Boyle has referred both motions
to the undersigned United States magistrate judge for a
hearing, if necessary, and determination under 28 U.S.C
§ 636(b). See Dkt. No. 224.
In the
Setliff Errata Motion, Zoccam explains that, “[o]n
November 29, 2022, Setliff's deposition was taken”
that, “[d]uring the course of Setliff's deposition
he made a number of admissions”; and that, “[a]s
a consequence of Setliff's deposition, Zoccam moved to
amend its answer and counterclaim which this Court
granted.” Dkt. No. 204 at 7-8.
Zoccam
then asserts that,
[f]ollowing Setliff's deposition, he requested several
extensions to submit his errata sheet to his November 29,
2022 deposition. Zoccam agreed to Setliff's extension
requests. His errata sheet was original due
on January 5, 2023 and was finally provided on January 18,
2023, almost two weeks later. Setliff's errata sheet
reflected nearly 50 substantive and many contradictory
changes to his deposition testimony. See Errata
Sheet, hereto attached as Exhibit 4. These extensions are
obviously an attempt to substantially change and contradict
his prior testimony which would defeat his claims, even
assuming such claims had any merit. Setliff's purported
changes reflect a complete about face and contradiction to
Setliff's original deposition testimony including that
the Setliff Trust purchased and owns the Zoccam stock
obtained through the two agreements, Exhibits 1 and 2.
Setliff failed to provide specific reasons for these changes
on his errata sheet. See Ex. 4. Instead, Setliff
offered conclusory, single word characterizations for his
numerous changes such as “clarification,”
“correction,” or both. Setliff did not elaborate
on to why he failed to provide full, truthful, or correct
responses to his testimony in the first place. Subsequently
reversing Setliff's original testimony with the label
“correction,” “clarification,” or
both does not provide a compliant basis for Setliff's
substantive about face or complies with Fed.R.Civ.P. 30(e).
Dkt. No. 204 at 8-9.
In the
Waller Errata Motion, Zoccam explains that “Joan and
Dan Waller (the ‘Wallers') represented Setliff
regarding his dispute with Zoccam which culminated in the May
2018 Settlement Agreement and SPA”; that “[t]he
Wallers' depositions were taken on January 4, 2023 and
they were questioned about events leading up to and after the
Settlement Agreement and SPA, and especially their
representation of Setliff”; and that “[t]he
Wallers are not just any fact witnesses but advocates for
Setliff and adversaries to Zoccam..” Dkt. No. 207 at 4.
Zoccam
then asserts that “Dan Waller offered no proposed
changes to his deposition” but that
Joan Waller (“Joan”) provided the opposite. In a
78-page deposition, Joan made 24 changes - most of them
substantive and/or adding to her original answer. See Errata
Sheet of Joan Waller, hereto attached as Exhibit 1. Like
Setliff, Joan's reasons for change almost exclusively
were one word conclusions - “clarification” or
“correction.” [Zoccam's Motion
does not contest the following errata sheet changes: p. 6:17;
p. 15:3; p. 21:4; p. 39:2; p. 44:19; p. 46:1; and p. 61:24.]
Joan's “changes” did not comply with
Fed.R.Civ.P. 30(e) in providing a specific reason(s) for each
change in her deposition testimony.
Dkt. No. 207 at 4-5 (cleaned up).
Zoccam
urges that “Setliff's errata sheet must be
stricken” or, “[a]lternatively, if Setliff's
errata sheet is not stricken, then Zoccam is entitled to the
[remedies ordered in other cases] including keeping the
original answer in the record and being able to impeach
Setliff with his attempt to create self-serving responses
that align with his interests.” Dkt. No. 204 at 19-20.
Zoccam also asserts that it “should also be permitted
to reopen Setliff's deposition to address his
contradictory changes as well as order Setliff to pay all
related expenses.” Id. at 20.
And
Zoccam urges that Joan Waller's “errata sheet must
be stricken,” or, “[a]lternatively, if Joan's
errata sheet is not stricken, then Zoccam is entitled to the
[remedies ordered in other cases] including keeping the
original answer in the record and being able to impeach Joan
with her attempt to create self-serving responses that align
with her interests.” Dkt. No. 207 at 14. Zoccam also
asserts that “Setliff should be precluded from using
Joan's errata sheet changes in any summary judgment
proceedings.” Id.
Setliff
filed a consolidated response to both motions, see
Dkt. No. 219, and Zoccam replied that Setliff responded to
the motion[s] contending that in this circuit, courts allow
any changes, even if conclusory reasons are provided, and
that Zoccam is sufficiently protected by being able to
impeach the witnesses with the changes and if necessary, the
witnesses can be deposed again. However, Rule 30(e) requires
the deponent to provide reasons for the
changes to a deposition in order to comply with the rule even
if the more lenient test applies. Here, Setliff failed to
give sufficient reasons to support the significant changes to
the depositions.
Setliff's
and Waller's stated reasons for the changes are
conclusory and offer Zoccam no real explanation for the
changes.
The errata sheets for Setliff and Waller fail to satisfy the
rule. As such, this Court should strike the errata sheets.
Alternatively, the Court should order Setliff to sit for
another deposition, at his cost, so that Zoccam can question
him on the changes he made.
Dkt. No. 230 at 1-2, 4, 5.
After
carefully reviewing the parties' briefing, the Court
grants in part and denies in part Zoccam's Motion to
Strike Plaintiff's Errata Sheet to His November 29, 2022
Deposition [Dkt. No. 204] and grants in part and denies in
part Zoccam's Motion to Strike Joan Waller's Errata
Sheet to Her January 4, 2023 Deposition [Dkt. No. 207] for
the reasons and to the extent explained below.
Federal
Rule of Civil Procedure 30(e) states:
(e) Review by the Witness; Changes.
(1) Review; Statement of Changes. 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.
(2) Changes Indicated in the Officer's Certificate. The
officer must note in the certificate prescribed by Rule
30(f)(1) whether a review was requested and, if so, must
attach any changes the deponent makes during the 30-day
period.
FED. R. CIV. P. 30(e).
The
United States Court of Appeals for the Fifth Circuit has held
that “Rule
30(e) does not provide any exceptions to its
requirements,” including the 30-day time period.
Reed v. Hernandez, 114 Fed.Appx. 609, 611 (5th Cir.
2004).
And, as
the Court has explained,
[c]ourts take three different approaches when a party
challenges proposed substantive changes to deposition
testimony pursuant to Rule 30(e). The traditional view is
that Rule 30(e) permits a deponent to change deposition
testimony by timely corrections, even if they contradict the
original answers, giving reasons. This least restrictive
approach allows substantive changes, but the prior testimony
remains a part of the record and can be used for impeachment.
Conversely, [t]he most restrictive approach allows deponents
to correct only typographic and transcription errors.
Other courts apply an analysis similar to the “sham
affidavit” rule applicable to an affidavit that
contradicts the affiant's prior deposition testimony.
Under a more flexible, case-specific approach to the
shamaffidavit analysis, courts allow contrary errata if
sufficiently persuasive reasons are given, if the proposed
amendments truly reflect the deponent's original
testimony, or if other circumstances satisfy the court that
amendment should be permitted.
The United States Court of Appeals for the Fifth Circuit has
not announced its position with respect to the three
approaches. ... [A]ccord Gonzalez v. Fresenius
Med. Care N. Am., 689 F.3d 470, 480 (5th Cir. 2012)
(“Counsel argues on appeal that Relator was entitled to
submit an errata sheet and make substantive changes to her
deposition under Federal Rule of Civil Procedure 30(e). We do
not necessarily disagree, but the only question for our
purposes is whether the district court abused its discretion
in concluding that Relator's counsel unreasonably and
vexatiously multiplied proceedings.”).
Andra Grp., LP v. JDA Software Grp., Inc., No.
3:15-MC-11-K-BN, 2015 WL 12731762, at *13-*14 (N.D. Tex. Dec.
9, 2015) (cleaned up).
This
Court at that time adopted and
appl[ied] the broad, least restrictive interpretation of Rule
30(e) because it is consistent with Rule 30(e)'s plain
language, which expressly contemplates “changes in form
or substance” accompanied by a signed statement
reciting the reasons for the changes. FED. R. CIV. P. 30(e).
As written, Rule 30(e) makes provision for changes in
substance that are made for legitimate reasons, such as to
correct a misstatement or honest
mistake. While the undersigned wholly agrees that a
deposition should not
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