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Ashcraft v. Welk Resort Group, Corp.

United States District Court, D. Nevada

November 8, 2017

JOHN E. ASHCRAFT, Plaintiff(s),
WELK RESORT GROUP, CORP, et al., Defendant(s).

          ORDER (DOCKET NO. 31)

          Nancy J. Koppe United States Magistrate Judge

         Rule 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.

         I. BACKGROUND

         Pending 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).

         As 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.

         The 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.

         II. STANDARDS

         The 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).

         Although 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.

         As a 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.[1] 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.

         Having 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).

         As an 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 ...

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