Asia Vital Components Co., Ltd. v. Asetek Danmark A/S

Filing 213

Order by Magistrate Judge Robert M. Illman granting 196 Discovery Letter Brief. (rmilc2, COURT STAFF) (Filed on 1/10/2019)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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EUREKA DIVISION

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ASIA VITAL COMPONENTS CO., LTD.,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 16-cv-07160-JST (RMI)
ORDER ON DISCOVERY LETTER
BRIEF

v.
ASETEK DANMARK A/S,

Re: Dkt. No. 196

Defendant.

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Before the court is a Joint Discovery Letter Brief (Doc. 196) in which Asetek Danmark

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A/S (“Asetek”) requests that the court strike 21 deposition errata submitted by Asia Vital

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Components Co., LTD. (“AVC”). The matter came on for hearing on January 4, 2019. For the

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reasons that follow, the court will grant Asetek’s request.

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AVC submitted several errata sheets following the depositions of Dr. Chiang, Mr. Huang,

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and Mr. Lin. Asetek seeks to strike only 21 of the changes made in the errata sheets based on

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Asetek’s allegations that the 21 changes are substantive and contradictory in nature. Asetek argues

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that the changes, which for example would change the answer to a question from “Yes,” to “No.

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‘Yes’ was referring to AVC America,” were made “to change sworn testimony that AVC provides

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assistance to its customers in the United States, and thereby limit AVC’s infringement liabilities.”

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(Doc. 196) at 1.

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AVC counters by arguing that “[b]ecause those portions of the deposition have not been

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submitted to the Court as part of the record for any motion and the deadline for dispositive motions has

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passed, simply put, ‘there is nothing to strike.’” Id. at 196 (quoting Torres v. Mercer Canyons, Inc.,

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2015 WL 12868078 *1 (E.D. Wash. 2015)). AVC does admit however that at least one of the proposed

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changes, labeled Huang, 107:8, was cited by Asetek in their motion for summary judgment, but argues

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that the change does not contradict the deposition testimony and instead, clarifies it. Id.
“Rule [30(e)] cannot be interpreted to allow one to alter what was said under oath. If that were

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the case, one could merely answer the questions with no thought at all then return home and plan artful

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responses. Depositions differ from interrogatories in that regard. A deposition is not a take home

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examination.” Hambleton Bros. Lumber Co. v. Balkin Enterprises, Inc., 397 F.3d 1217, 1225 (9th Cir.

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2005). “[AVC] argues that Hambleton should be construed narrowly and applied only in the summary

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judgment context, where substantive changes to a deposition transcript might be used as a “sham” to

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create an issue of fact.” Teleshuttle Techs. LLC v. Microsoft Corp., No. C04-02927 JW(HRL), 2005

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WL 3259992, at *2 (N.D. Cal. Nov. 29, 2005). “But ‘[e]ven where changes to a deposition transcript

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United States District Court
Northern District of California

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are not used as a sham to create an issue of fact [in the context of a motion for summary judgment],

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Rule 30(e) may only be used for corrective, and not contradictory, changes.’” Lee v. The Pep Boys-

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Manny Moe & Jack of California, No. 12-CV-05064-JSC, 2015 WL 6471186, at *2 (N.D. Cal. Oct.

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27, 2015) (quoting Lewis v. The CCPOA Ben. Trust Fund, No. C-08-03228-VRW (DMR), 2010 WL

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3398521, at *3 (N.D. Cal. Aug. 27, 2010).

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The question then becomes whether the changes are contradictory and should be stricken. The

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court finds that they are. Some are more obvious, such as the change from “yes” to “no,” “i.e., the

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‘paradigmatic example’ of contradiction.” The Pep Boys, 2015 WL 6471186, at *2. While others, with

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a slight change in a name (changing all mentions of “AVC’s Freemont” to “AVC America Freemont”)

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or a change from “shipped” to “sold,” or “ship” to “sell,” or simply a deletion of any answer, appear to

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support Asetek’s assertions that the changes were made “to limit AVC’s exposure in the United States

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by, for example, presenting AVC’s offices in Fremont as belonging to a separate entity—“AVC

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America,” altering customer names, shipping location (from U.S. to Hong Kong), and the names of the

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products sold in the U.S., and changing “shipped” to “sold” so that AVC can attempt to escape liability

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due to importation of the accused AVC products into the U.S.” (Doc. 196) at 2. Regardless of AVC’s

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intent, the changes are indeed contradictory.

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//

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//

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Accordingly, the Motion to Strike the 21 entries in the errata sheets as identified in the Letter
Brief is GRANTED.

IT IS SO ORDERED.
Dated: January 10, 2019

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ROBERT M. ILLMAN
United States Magistrate Judge

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United States District Court
Northern District of California

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