Court Strikes Errata Sheets to Depositions Where "Clarifications" Materially Altered Testimony

by Jeffer Mangels Butler & Mitchell LLP

Plaintiffs Scott Clare, Neil Long, and Innovative Truck Storage, Inc. filed a patent infringement action against Defendant Chrysler Group, LLC, arguing that Defendant infringed their patent for hidden pick up truck bed storage. Chrysler Group filed a motion to strike Plaintiffs' errata sheets from depositions, arguing that Plaintiffs were attempting to materially alter, through the errata sheets, the witnesses' deposition testimony.

As explained by the district court, Federal Rule of Civil Procedure 30(e) contemplates changing a deposition transcript in "form or substance." Courts have placed different burdens on a party attempting to change a deposition in substance and have different views of 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." Devon Energy Corp. v. Westacott, 09-1689, 2011 WL 1157334, at *4 (S.D.Tex. Mar. 24, 2011) (citation omitted). "Under this approach, the fact and extent of the change are treated as subjects for impeachment that may affect a witness's credibility." Id. at *5 (quoting "[t]he witness who changes his testimony on a material matter between the giving of his deposition and his appearance at trial may be impeached by his former answers, and the cross-examiner and the jury are likely to be keenly interested in the reasons he changed his testimony. There is no apparent reason why the witness who changes his mind between the giving of the deposition and its transcription should stand in any better case.") (citation omitted). "The changed version does not replace the original testimony, which remains part of the record on which the witness may be examined and impeached." Id. (citation omitted).

The district court then noted that "[t]he Sixth Circuit has taken a much more restrictive approach. The Sixth Circuit, in an unpublished decision, stated that it prohibits any type of material alterations to a deposition transcript and only allows a party to use Rule 30(e) to correct a typographical error. See Trout v. First Energy Generation Corp., 339 F.App'x 560, 565-66 (6th Cir. 2009) (reviewing Rule 30(e) and quoting that Rule 30(e) "does not allow one to alter what was said under oath," and additionally stated that "a plaintiff may not create a factual issue by filing an affidavit that contradicts her earlier deposition testimony." The Sixth Circuit quoted a district court's Rule 30(e)'s reasoning-"If [a party could use Rule 30(e) to alter testimony,] one could merely answer the questions with no thought at all [], then return home and plan artful responses. Depositions differ from interrogatories in that regard. A deposition is not a take home examination.") (citations omitted). Courts in the Eastern District of Michigan have followed Trout. See Walker v. 9912 E. Grand River Assocs., 11-12085, 2012 WL 1110005, at *3-4. (E.D.Mich. Apr. 3, 2012) (Cohn, J.) (rejecting the plaintiff's errata sheet as an attempt to materially alter deposition testimony and noting that the Sixth Circuit only permits the use of an errata sheet to correct typographical or transcription errors.); Downing v. J.C.Penney, Inc., 11-15015, 2012 WL 4358628 (E.D.Mich. Sept. 23, 2012) (Cleland, J). (stating same.).

The Chrysler group argued that Plaintiffs, with their filed errata sheets, were attempting to materially alter the deposition of Plaintiffs Scott Clare, Neil Long, and Neil Long as the ITS 30(b)(6) witness. In response, Plaintiffs argued that the errata sheets "reflect" Plaintiffs' "conscientious efforts to correct transcription errors, to clarify indefinite pronouns, and to harmonize - not contradict - their answers with other answers given during the same depositions.

The district then noted that "Trout and the cases following from it in this district. But the Court also finds that Plaintiffs' arguments would fail under the looser approaches as well." The district concluded that, with their proposed changes, "Plaintiffs are attempting to materially alter their witnesses' testimony. The Court will not permit such a material alteration." The material changes included changes that altered a "no" answer to "no, other than ..." or "no" answer to "no, except ..."

As a result, the district court granted the motion to strike the errata.

Scott Clare v. Chrysler Group, LLC, Case No.. 13-11225 (E.D. Mich. June 4, 2014)


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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