United States District Court, D. Nevada
JOHN E. ASHCRAFT, Plaintiff(s),
WELK RESORT GROUP, CORP, et al., Defendant(s).
ORDER (DOCKET NO. 31)
J. Koppe United States Magistrate Judge
30(e) of the Federal Rules of Civil Procedure provides a
mechanism by which a deponent may review her testimony and
make changes to it. In 2005, the Ninth Circuit addressed the
permissible scope of such changes, explaining that they may
include “corrective, and not contradictory,
changes.” Hambleton Bros. Lumber Co. v. Balkin
Enterps., Inc., 397 F.3d 1217 (9th Cir. 2005). Judges
within this District have not yet been tasked with applying
this standard. Moreover, although other district courts
within the Ninth Circuit have had the opportunity to do so,
they have struggled to interpret and apply this standard in a
uniform manner. Given these circumstances and the
parties' significantly different views of governing law,
the Court will provide a fulsome explanation of its
understanding of the permissible scope of Rule 30(e) changes.
before the Court is Plaintiff's motion to strike
Defendant Experian's changes to the transcript of its
Rule 30(b)(6) deposition. Docket No. 31. Experian filed a
response in opposition, and Plaintiff filed a reply. Docket
Nos. 35, 42. The Court held a hearing on the motion on
September 25, 2017. Docket No. 61; see also Docket
No. 63 (hearing transcript).
noted above, the instant dispute arises out of Experian's
Rule 30(b)(6) deposition. Anna Simmons appeared as
Experian's Rule 30(b)(6) deponent. See Depo. Tr.
at 6 (Docket No. 32-1). Ms. Simmons has been employed by
Experian for roughly 15 years. See, e.g., Hearing
Tr. at 60. Ms. Simmons has been deposed several times
previously, Depo. Tr. at 6-7, and has acted as a Rule
30(b)(6) deponent for Experian for several years,
id. at 8. Indeed, Ms. Simmons has been deposed in
that capacity by Plaintiff's counsel in several other
cases. See Id. at 9-10. At the deposition in this
case, Ms. Simmons indicated that she was prepared to testify
as a Rule 30(b)(6) deponent in a manner that binds Experian.
Id. at 13-14.
deposition of Experian vis-à-vis Ms. Simmons
proceeded. Experian's attorney did not conduct
cross-examination of Ms. Simmons following completion of
questioning by Plaintiff's counsel. See, e.g.,
id. at 255. After the deposition, Experian submitted
25 changes to Ms. Simmons' testimony, 17 of which are
currently in dispute. See Mot. at 7-10; see
also Docket No. 31-2 at 4-5. Some of the disputed
changes seek to entirely remove portions of Ms. Simmons'
testimony. See Id. at 9. Some of the disputed
changes seek to directly contradict Ms. Simmons'
testimony, including changing answers from “yes”
to “no, ” or vice versa, or dropping a
“not” from her answer. Id. at 8-10.
Still other disputed changes attempt to alter Ms.
Simmons' testimony about Experian's
“policy” to testimony about what Experian does
“in some circumstances.” Id. at 8-9. The
reasons stated for the changes are (1) the
“non-responsive” nature of Ms. Simmons'
answers and (2) the need to provide “accuracy”
and/or “clarification.” Id. at 8-10 With
respect to at least one change, Experian further explains
that the change was made upon “further research”
following the deposition. Id. at 8. This
“further research” appears to have involved only
the review of documents already produced in this litigation.
Docket No. 31-4 at 2-3.
Federal Rules of Civil Procedure provide that, “[o]n
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.” Fed.R.Civ.P. 30(e)(1).
the text of Rule 30(e) provides that changes may be “in
form or substance” and indicates that
“reasons” must be identified for making those
changes, the Rule itself does not otherwise address the
proper scope of changes allowed and the type of reasons that
are sufficient to make changes. The Ninth Circuit has had one
occasion to address those issues:
A statement of reasons explaining corrections is an important
component of errata submitted pursuant to FRCP 30(e), because
the statement permits an assessment concerning whether the
alterations have a legitimate purpose. The magistrate judge
was troubled by the deposition corrections' seemingly
tactical timing-the corrections were submitted only after
Ballinger's motion for summary judgment was filed-and by
their extensive nature. The absence of any stated reasons for
the changes supports the magistrate judge's concern that
the “corrections” were not corrections at all,
but rather purposeful rewrites tailored to manufacture an
issue of material fact regarding Ballinger and to avoid a
summary judgment ruling in his favor. Under our
“sham” affidavit rule, “a party cannot
create an issue of fact by an affidavit contradicting his
prior deposition testimony.” Kennedy v. Allied Mut.
Ins. Co., 952 F.2d 262, 266 (9th Cir.1991). We think
this type of “sham” correction is akin to a
“sham” affidavit. While the language of FRCP
30(e) permits corrections “in form or substance,
” this permission does not properly include changes
offered solely to create a material factual dispute in a
tactical attempt to evade an unfavorable summary judgment.
Cf. Combs v. Rockwell Int'l Corp., 927 F.2d 486,
488-89 (9th Cir.1991) (dismissing with prejudice and granting
Rule 11 sanctions against a party and its counsel because the
attorney, in an effort to avoid summary judgment, made
substantive changes to the party's deposition testimony
in violation of FRCP 30(e)). The Tenth and Seventh Circuits
have interpreted FRCP 30(e) similarly. See, e.g., Burns
v. Bd. of County Comm'rs, 330 F.3d 1275, 1281-82
(10th Cir.2003) (“We see no reason to treat Rule 30(e)
corrections differently than affidavits, and we hold that
Burns's attempt to amend his deposition testimony must be
evaluated under [the sham affidavit doctrine].”);
accord Garcia v. Pueblo Country Club, 299 F.3d 1233,
1242 n. 5 (10th Cir.2002) (“‘The Rule cannot be
interpreted to allow one to alter what was said under oath.
If that were the case, 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.'”) (quoting Greenway v. Int'l
Paper Co., 144 F.R.D. 322, 325 (W.D.La.1992)); Thorn
v. Sundstrand Aerospace Corp., 207 F.3d 383, 389 (7th
Cir.2000) (“We also believe, by analogy to the cases
which hold that a subsequent affidavit may not be used to
contradict the witness's deposition, that a change of
substance which actually contradicts the transcript is
impermissible unless it can plausibly be represented as the
correction of an error in transcription, such as dropping a
‘not.'”) (citations omitted). We agree with
our sister circuits' interpretation of FRCP 30(e) on this
point, and hold that Rule 30(e) is to be used for corrective,
and not contradictory, changes.
Hambleton, 397 F.3d at 1224-26 (internal footnote
omitted). In short, the Ninth Circuit explained that Rule
30(e) changes (1) must have a legitimate purpose, (2) must
not be used as a sham solely to create a material issue of
fact to evade summary judgment, and (3) must not be used to
alter what was actually said under oath. The Ninth Circuit
then articulated a standard, indicating that Rule 30(e)
changes are “to be used for corrective, and not
contradictory, changes.” Id. at 1226.
threshold matter, Experian argues that the Court should
disregard this standard and should conclude instead that any
change is permissible so long as the deponent has adhered to
the technical requirements outlined in Rule 30(e). Resp. at
2, 9. Experian is correct that the Ninth Circuit
in Hambleton elsewhere addressed procedural
deficiencies with the changes made in that case. See
397 F.3d at 1224, 1226. Nonetheless, Experian fails to
explain in a persuasive manner why the existence of
procedural deficiencies in that case nullifies the Ninth
Circuit's discussion of the substantive scope of Rule
30(e) changes. “[N]othing in Hambleton Bros.
suggests that the Ninth Circuit's holding should be
limited to the unique facts of that case. Rather, the Ninth
Circuit unambiguously, and without qualification, held that
‘Rule 30(e) is to be used for corrective, and not
contradictory, changes.'” Azco Biotech Inc. v.
Qiagen, N.V., Case No. 12-cv-2599-BEN (DHB), 2015 WL
350567, *4 (S.D. Cal. Jan. 23, 2015). The Court declines
Experian's invitation to ignore the Ninth Circuit's
direction as to the proper scope of Rule 30(e) changes.
resolved Experian's threshold argument, the Court turns
to the substantive scope of permissible Rule 30(e) changes.
The standard of allowing “corrective, and not
contradictory, changes” is not entirely
self-explanatory. The parties urge the Court to interpret
that standard differently, with each party's position
supported by varying decisions from district courts within
the Ninth Circuit. Those district courts, in turn, have
interpreted Hambleton in varying ways by seizing on
different aspects of the above discussion. These decisions
generally fall within three groups. The initial part of
Hambleton's discussion addresses the impropriety
of using Rule 30(e) changes in a manner akin to a sham
affidavit designed to avoid summary judgment, and some
district courts have found Rule 30(e) changes should be
stricken only when they constitute an improper tactic akin to
a sham affidavit. See, e.g., Peterson v. Alaska
Comm's Sys. Group, Inc., Case No. 3:12-cv-00090-TMB,
2017 WL 2332859, at *2 (D. Alaska Mar. 23, 2017); Ochoa
v. McDonald's Corp., Case No. 14-cv-02098-JD, 2015
WL 13079032, at *1 (N.D. Cal. June 2, 2015); Torres v.
Mercer Canyons, Inc., Case No. 1:14-cv-03032-SAB, 2015
WL 12868078, at *1 (E.D. Wash. May 29, 2015); Weekes v.
Ohio Nat'l Life Assur. Corp., Case No.
1:10-cv-0566-BLW, 2011 WL 6140967, at *3-4 (D. Id.
Dec. 9, 2011); BNSF Ry. Co. v. San Joaguin Valley R.R.
Co., Case No. 1:08-cv-01086-AWI-SMS, 2009 WL 3872043, at
*7-8 (E.D. Cal. Nov. 17, 2009); Paige v. Consumer
Programs, Inc., Case No. CV 07-2498-FMC (RCx), 2008 WL
2491665, at *3-4 (C.D. Cal. May 13, 2008). The latter part of
Hambleton's discussion agrees with appellate
case law from other circuits rejecting the use of Rule 30(e)
to alter deposition testimony actually given, and some
district courts have refused to permit Rule 30(e) changes
that alter the substance of deposition testimony in a
contradictory manner except when correcting transcription
errors. See, e.g., Parker v. Comcast Cable
Commc'ns Mgmt., LLC, Case No. 3:15-cv-05673-TEH
(KAW), 2017 WL 1758086, at *1-2 (N.D. Cal. May 5, 2017);
Gebrekiros v. Skywest Airlines, Inc., Case No.
C15-0210-JCC, 2016 WL 1643994, at *3 (W.D. Wash. Apr. 26,
2016); Ioane v. Spjute, Case No. 1:07-cv-0620 AWI
GSA, 2016 WL 1573184, at *4 (E.D. Cal. Apr. 19, 2016);
Azco Biotech, 2015 WL 350567, at *3-4 & n.5;
In re Cathode Ray Tube (CRT) Antitrust Litig., Case
No. 3:07-cv-05944SC, 2014 WL 12647874, at *2 (N.D. Cal. Dec.
12, 2014); MGA Ent't, Inc. v. Nat'l Prods.
Ltd., Case No. CV 10-07083-JAK (SSx), 2012 WL 12886204,
at *1-2 (C.D. Cal. Apr. 12, 2012); Tourgeman v. Collins
Fin'l Servs., Inc., Case No. 08-cv-1392 JLS (NLS),
2010 WL 4817990, at *2 (S.D. Cal. Nov. 22, 2010);
Teleshuttle Techs. LLC v. Microsoft Corp., Case No.
C04-02927 JW(HRL), 2005 WL 3259992, at *2 (N.D. Cal. Nov. 29,
2005). Still other district courts have viewed the former and
latter parts of Hambleton's discussion as
alternative standards, indicating that Rule 30(e) changes are
impermissible if they are either being made as a sham or if
they are made in a fashion that contradicts the testimony
actually given. See, e.g., Mullins v. Premier
Nutrition Corp., 178 F.Supp.3d 867, 902 (N.D. Cal.
2016); Karpenski v. Am. Gen. Life Cos., 999
F.Supp.2d 1218, 1224 (W.D. Wash. 2014); Greer, 2017
WL 2389567, at *4; Adidas Am., Inc. v. Skechers USA,
Inc., Case No. 3:15-cv-01741-HZ, 2017 WL 2379862, at *2
(D. Or. Jan. 30, 2017); Lee v. The Pep Boys-Manny Moe
& Jack of Cal., Case No. 12-cv-05064-JSC, 2015 WL
6471186, *1-2 (N.D. Cal. Oct. 27, 2015); Lewis v. The
CCPOA Benefit Trust Fund, Case No. C-08-03228-VRW (DMR),
2010 WL 3398521, at *3 (N.D. Cal. Aug. 27, 2010).
initial matter, the Court recognizes that the two standards
espoused by these cases are conceptually and practically
distinct. For example, the “sham affidavit”
standard requires not only that a affidavit is contradictory
of prior testimony, but also that the contradiction is being
made in an attempt to “create” a material issue
of fact. See, e.g., Kennedy, 952 F.2d at
267. Hence, the sham affidavit standard requires an
examination of a party's actions to determine whether the
party is correcting an “honest” mistake or
improperly attempting to create a material issue of fact.
See Id. On the other hand, the second standard
prohibits “alter[ing] what was said under oath”
because “[a] deposition is not a take home
examination.” Hambleton, 397 F.3d at 1225
(quoting Garcia, 299 F.3d at 1242 n.5). That
standard is not concerned with ...