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Ashcraft v. Welk Resort Group, Corp.

United States District Court, D. Nevada

July 24, 2018

John E. Ashcraft, Plaintiff,
v.
Welk Resort Group Corp., et al., Defendants

          ORDER AFFIRMING MAGISTRATE JUDGE'S ORDER STRIKING FRCP 30(E) CHANGES [ECF NO. 68]

          JENNIFER A. DORSEY UNITED STATES DISTRICT JUDGE

         After defendant Experian Solutions, Inc.'s FRCP 30(b)(6) designee in this Fair Credit Reporting Act case gave plaintiff-favorable testimony at her deposition, Experian submitted an FRCP 30(e) errata revising, replacing, and deleting it, claiming that post-deposition investigation revealed that her sworn answers were wrong. The plaintiff moved to strike that errata, and Magistrate Judge Nancy Koppe granted the motion, relying on the Ninth Circuit's opinion in Hambleton Brothers Lumber Company v. Balkin Enterprises, Inc.[1] Experian objects, arguing that Hambleton merely precludes parties from changing deposition testimony during summary judgment to manufacture an issue of fact.[2] But because Hambleton more broadly “hold[s] that Rule 30(e) is to be used for corrective, and not contradictory, changes, ” I find that Judge Koppe's order is consistent with Ninth Circuit law, affirm it, and overrule Experian's objection.

         Discussion

         Experian's objection is a legal one.[3] It contends that Judge Koppe's ruling is clearly erroneous and contrary to law because it stretches the Ninth Circuit panel's opinion in Hambleton beyond its intended reach: sham changes during summary judgment designed to create issues of fact. “It is dubious, ” Experian contends, “that the reasoning of Hambleton even extends beyond the situation where a summary judgment motion is pending.”[4] “Had Hambleton intended to adopt a ‘sharp restriction' against all contradictory changes-whether sham or not- ‘it would have said so and would not have discussed the sham affidavit rule in the detail and manner that it did.'”[5]

         But the Hambleton court did say so. Its statement that “Rule 30(e) is to be used for corrective, and not contradictory, changes” is not mere dicta, it is an express holding. After string-citing out-of-circuit recognitions that “a change of substance [that] actually contradicts the transcript is impermissible unless it can plausibly be represented as the correction of an error in transcription, ”[6] and that “[t]he Rule cannot be interpreted to allow one to alter what was said under oath” for “a deposition is not a take home examination, ”[7] the Hambleton court concluded, “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.”[8]

         Whether Experian is choosing to ignore this broader principle in Hambleton or just has a blind spot for it, Hambleton's significance here is actually twofold: it extended the sham-affidavit rule to Rule 30(e) changes and put the Ninth Circuit in union with circuits that had already recognized that Rule 30(e) is a vehicle to ensure a verbatim transcript of sworn answers, not to permit a post hoc rewrite of those answers by or with counsel. “Depositions differ from interrogatories in that regard, ” and “[i]f that were the case, one could merely answer the questions with no thought at all then return home and plan artful responses.”[9] Judge Koppe's ruling properly recognizes this undeniable aspect of Hambleton 's holding and the limits that the Ninth Circuit has placed on Rule 30(e) changes.

         Conclusion

         Accordingly, IT IS HEREBY ORDERED that Experian's objections [ECF Nos. 68] are OVERRULED and Judge Koppe's order striking Experian's Rule 30(e) changes [ECF No. 64] is AFFIRMED.

---------

Notes:

[1] ECF No. 64 (citing Hambleton Bros. Lumber Co. v. Balkin Enter., Inc., 397 F.3d 1217 (9th Cir. 2005)).

[2] ECF No. 68.

[3] The parties are familiar with the facts that underlie the motion to strike, Judge Koppe laid them out in detail in her order, see ECF No. 64, and they are not materially in dispute; so I do not reiterate them here. I review Judge Koppe's legal conclusions de novo. See 28 U.S.C. § 636(b)(1)(A); Concrete Pipe & Prods. of Cal., ...


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