Opinion
Civil Action Case No. 01-2009-KHV.
April 3, 2002.
MEMORANDUM AND ORDER
Pending before the Court is Plaintiff's Motion to Strike Errata Sheet of Leslie W. Goolsby (doc. 179). Plaintiff seeks to have the errata sheet of deponent Leslie Goolsby stricken on the grounds that the errata sheet materially alters his deposition testimony. Plaintiff also requests its costs incurred in filing this motion. Defendant PepsiCo, Inc. (PepsiCo), opposes the motion, arguing that Mr. Goolsby's errata sheet changes are permitted by Federal Rule of Civil Procedure 30(e).
Plaintiff deposed Mr. Goolsby, a franchise manager for PepsiCo, on May 30, 2001. At the conclusion of Mr. Goolsby's deposition, he requested a copy of the transcript of his deposition, pursuant to Rule 30(e). By letter dated June 20, 2001, the court reporter provided Mr. Goolsby with a copy of his deposition transcript. On July 19, 2001, Mr. Goolsby certified that he had read his deposition and submitted his errata sheet listing forty-one corrections to the deposition transcript. Five of the forty-one corrections were for spelling. Four other changes were due to Mr. Goolsby misunderstanding the word "minutes" to mean "documents" during the deposition. The remainder of the listed changes were for "accuracy." Many of the "accuracy" changes listed in the errata sheet replace a deposition answer of "yes" with "no," and vice versa.
Plaintiff objects to the changes listed on Mr. Goolsby's errata sheet because the supplemental responses materially alter the deposition testimony. Plaintiff cites this Court's decisions in Rios v. Bigler, 847 F. Supp. 1538, 1546-47 (D.Kan. 1994), Rios v. Welch, 856 F. Supp. 1499, 1502 (D.Kan. 1994), and Zhu v. Countrywide Realty, Co., Inc., 165 F. Supp.2d 1181, 1195 (D.Kan. 2001), in support of its position that Rule 30(e) does not permit a deponent to materially alter his deposition testimony as a whole.
Defendant PepsiCo opposes Plaintiff's motion to strike Mr. Goolsby's errata sheet. It cites another case from this district, Luhman v. Dalkon Shield Claimants Trust, No. 92-1417-MLB, 1994 WL 542048, *1 (D.Kan. Oct. 3, 1994), in support of its position that Rule 30(e) permits any change to form or substance that the deponent desires to make, as long as the procedural requirements of Rule 30(e) are satisfied.
Discussion
Federal Rule of Civil Procedure 30(e), as amended in 1993, governs changes to depositions:
If requested by the deponent or a party before completion of the deposition, the deponent shall have 30 days after being notified by the officer that the transcript or recording is available in which to review the transcript or recording and, if there are changes in form or substance, to sign a statement reciting such changes and the reasons given by the deponent for making them. The officer shall indicate in the certificate . . . whether any review was requested and, if so, shall append any changes made by the deponent during the period allowed.
In interpreting Rule 30(e), most courts agree that the deponent can change all necessary form and transcription errors. A. Darby Dickerson, Deposition Dilemmas: Vexatious Scheduling and Errata Sheets, 12 Geo. J. Legal Ethics 1, 54-55 (1998). They also agree that the deponent cannot raise objections in the errata sheet that were required to be raised at the deposition or otherwise waived. Id. at 55. The federal courts, however, are split on the scope of substantive changes permitted under Rule 30(e). Id.
The majority approach is that Rule 30(e) does not limit the types of changes a deponent may make to his or her deposition transcript. See Podell v. Citicorp Diners Club, Inc., 112 F.3d 98, 103 (2d Cir. 1997); Elwell v. Conair, Inc., 145 F. Supp.2d 79, 85 (D.Me. 2001); Tingley Sys., Inc. v. CSC Consulting, Inc., 152 F. Supp.2d 95, 119-20 (D.Mass. 2001); Innovative Mktg. Tech. v. Norm Thompson Outfitters, Inc., 171 F.R.D. 203, 204-5 (W.D.Tex. 1997); Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383, 389 (7th Cir. 2000). Under this approach, the courts apply a broad reading to Rule 30(e)'s language, which permits deponents to make "changes in form or substance" and to "append any changes made by the deponent" to the filed transcript. Fed.R.Civ.P. 30(e). The rationale appears to be that the plain language of Rule 30(e) places no limitations on the types of changes that may be made by deponent. Podell, 112 F.3d at 103 (quoting Lugtig v. Thomas, 89 F.R.D. 639, 641 (N.D.Ill. 1981)). Nor does the Rule mandate that a judge examine the "sufficiency, reasonableness, or legitimacy of the reasons given for the changes." Id. "If the original answers as well as the changes are made available to the jury when and if the deposition testimony is used at trial, the jurors should be able to discern the artful nature of the changes. For purposes of pre-trail motions, the plain language of Rule 30(e) should control." Elwell, 145 F. Supp.2d at 87.
Courts adopting the minority view hold that the substance of deposition testimony given under oath should not be altered. The most frequently cited case for this principle is Greenway v. International Paper Co., 144 F.R.D. 322, 325 (W.D.La. 1992). These courts rationalize that deposition testimony should be treated more akin to trial testimony. Dickerson, 12 Geo. J. Legal Ethics at 57. "[Rule 30(e)] 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 take-home exam." Greenway, 144 F.R.D. at 325.
Within this district, the court appears divided on the issue. In Luhman, 1994 WL 542048 at *1, Judge Reid denied a motion to strike corrections to plaintiff's deposition on the basis that:
[Rule 30(e)] permits any change in form or substance which the witness desires to make. Thus, changed deposition answers of any sort are permissible, even those which are contradictory or unconvincing, as long as the procedural requirements set forth in the Rule are also followed. Therefore, a judge cannot examine the sufficiency, reasonableness, or legitimacy of the reasons for the changes.Id. (citing United States ex rel. Burch v. Piqua Eng'g, Inc., 152 F.R.D. 565, 566-67 (S.D.Ohio 1993) and Lugtig, 89 F.R.D. at 641). Although the court in Luhman permitted the deponent's changes, it also permitted defendant to depose plaintiff concerning the reasons for the changes and made both the original and amended deposition answers part of the original transcript. Id.
In contrast, Judge Lungstrum, in a ruling on a motion for partial summary judgment, rejected plaintiff's argument that the court must consider the information in the errata sheet to support one of her claims. Bigler, 847 F. Supp. at 1546-47. The court held that it would only consider the errata sheet changes which clarified the deposition, and not those which materially alter the deposition testimony as a whole. Id. (emphasis added.) The court, citing Greenway, 144 F.R.D. at 325, stated that "although the errata sheet, like the affidavit, may be used to correct errors or to clarify or change an answer when a question is misunderstood, it may not be used to allow a person to alter what has been said under oath." Id.
In a later decision in the same case, Judge Lungstrum again stated that "[i]t is the court's belief that a plaintiff is not permitted to virtually rewrite portions of a deposition, particularly after the defendant has filed a summary judgment motion, simply by invoking the benefits of Rule 30(e). . . . A deposition is not a "take home examination" and an `errata sheet' will not eradicate the import of previous testimony taken under oath." Rios v. Welch, 856 F. Supp. at 1502 (emphasis added).
On appeal, the Tenth Circuit affirmed the decisions in both Welch and Bigler, but specifically stated it did not address the issue of whether plaintiff was entitled to submit changes to deposition testimony under Rule 30(e) due to plaintiff's failure to submit the proper record on appeal. Rios v. Bigler, 67 F.3d 1543, 1552 (10th Cir. 1995).
In Zhu v. Countrywide Realty, Company, Inc., 165 F. Supp.2d at 1195, Judge Vratil denied plaintiff's motion to strike her deposition transcript. Plaintiff sought to have her deposition transcript stricken on the grounds that the court reporter did not accurately transcribe her deposition and for various violations of Rule 30, including no court reporter certification. The court noted that plaintiff submitted a thirteen-page document outlining forty corrections to her deposition transcript and stated it would utilize the deposition transcript, as corrected, in considering defendant's motion for summary judgment. Id. at 1195. In a footnote, the court qualified its reliance on the corrected deposition transcript because plaintiff's transcript did not include a court reporter's certification. Id. at 1195 n. 13. The court stated it would "merely review the original answers to ensure that plaintiff is not changing her deposition to give more artful answers, . . . because plaintiff is only allowed to correct transcription errors." Id.
The Tenth Circuit has not ruled on the issue but, in a decision prior to the 1993 Amendments to Rule 30(e), has implied that a deponent can make substantive changes to the deposition transcript. "If a witness gives a deposition and signature is not waived, he may later make changes under Rule 30(e), and give reasons. This is contemplated and on occasion is obviously necessary." Rogers v. Roth, 477 F.2d 1154, 1159 (10th Cir. 1973).
Defendant PepsiCo attempts to harmonize the rulings within this district by arguing that the timing and context of the motion to strike changes a deponent makes to his or her deposition transcript are important. It argues that where deposition changes are proffered to defeat summary judgment, the Court should apply closer scrutiny and in ruling on summary judgment may disregard certain changes and consider only the original answers. In instances where the party seeks to strike the errata sheet prior to summary judgment, the court should permit the identified changes, as long as the procedural requirements of Rule 30(e) are met.
The Court finds defendant PepsiCo's argument persuasive. The cases in which the Court did not allow the deponent to rewrite his or her testimony were in the context of disputed testimony in a summary judgment motion. Here, as the Court is not the ultimate trier of fact and there are no motions for summary judgment pending, the Court will not delve into the sufficiency, reasonableness or legitimacy of the changes deponent sets forth in his errata sheet. As long as the procedural requirements of Rule 30(e) are met and no dispositive motions are pending, the deponent will be permitted any change in form or substance which the witness desires to make, even those which are contradictory or unconvincing.
For these reasons, Plaintiff's Motion to Strike Errata Sheet of Leslie W. Goolsby (doc. 179) is denied. Both the original transcript and amended answers shall be made part of the original transcript. Plaintiff may depose Mr. Goolsby concerning his reasons for the errata sheet changes. Each party shall bear its own costs related to this motion.
IT IS SO ORDERED.