Boyd et al v. Home Depot, Inc., The
Filing
53
ORDER denying 28 Motion to Strike by Magistrate Judge Kristen L. Mix on 01/31/13.(jjhsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-03129-WYD-KLM
PETER BOYD, and
CORDELIA GILLIS
Plaintiffs,
v.
THE HOME DEPOT, INC.,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendant’s Motion to Strike the Errata Sheet
for The Deposition of Plaintiff Cordelia Gillis [Docket No. 28; Filed October 29, 2012]
(the “Motion”). Plaintiffs submitted a Response in opposition to the Motion on November
19, 2012 [#38], and Defendant filed a Reply on December 3, 2012 [#44]. The Motion is ripe
for review and referred to this Court for disposition. See [#29]. For the reasons stated
below, the Court DENIES the Motion.
I.
Background
This lawsuit arises from Plaintiffs’ allegations that on May 4, 2010, Plaintiff Boyd fell
in a wheelchair accessible bathroom stall at a Home Depot store in Colorado Springs while
attempting to move from his wheelchair to the toilet. Complaint [#1] at 2-3. Plaintiffs allege
that the stall’s support bar, which Plaintiff Boyd leaned on to move to the toilet, gave way,
causing him to fall and sustain serious injuries. Id. In the instant Motion, Defendant
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requests that the Court strike the deposition errata sheet pertaining to Plaintiff Gillis
(“Gillis”). [#28] at 1. Although Defendant seeks to have the entire errata sheet stricken,
Defendant’s primary argument in support of the Motion specifically references only three
of Gillis’s modified answers on the errata sheet.1 [#28] at 6-7. Thus, at least with respect
to Defendant’s primary argument, the Court construes it to request that only those three
modified answers be stricken. The Court recognizes that Defendant’s secondary argument
in support of the Motion, regarding improper notarization, applies to the entire errata sheet.
Defendant first argues that Gillis’s three modified answers should be stricken
because they go beyond the scope of deposition review authorized by Fed. R. Civ. P.
30(e). [#28] at 8-11. Defendant contends that Gillis materially changed her answers by
subsequently recalling information she could not recall during the deposition. [#28] at 6.
Defendant argues that the modified answers “appear to be strategically-timed attempts by
Plaintiffs to change Ms. Gillis’ deposition testimony to enable her now to provide wellrehearsed and planned answers to the many probing questions that she was originally able
to avoid due to a supposed lack of memory....” [#28] at 10. Alternatively, Defendant
argues that the errata sheet should be stricken in its entirety because it was not properly
notarized.
In Response, Plaintiffs argue that Rule 30(e) expressly authorizes the kind of
modifications made by Gillis. [#38] at 2. Plaintiffs further argue that Gillis’s changes are
not material, and that even if the Court finds them to be material, the relevant factors to
consider under Tenth Circuit law weigh against striking Gillis’s modified answers.
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The errata sheet contains a total of fourteen modifications. See [#28-4].
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Regarding the notarization issue, Plaintiffs argue that nothing in Rule 30(e) requires a
notarized signature on an errata sheet.
In the Reply, Defendant argues that the changes made by Gillis are material in that
they extend beyond mere spelling changes or transcription errors. [#44] at 1-2. Defendant
contends that because the changes are material, the three factors identified by the Tenth
Circuit apply here. [#44] at 2-5. Defendant argues that all three factors support striking
Gillis’s modified answers. Id. With respect to the notarization question, Defendant
contends that an errata sheet is simply a continuation of a deposition which must be under
oath. [#44] at 5-6. Thus, according to Defendant, “unless an errata sheet is signed in the
presence of a notary, the changes contained on the errata sheet have not been made
under oath.” Id.
II.
Analysis
A.
Legal Standards
Rule 30(e) of the Federal Rules of Civil Procedure provides:
(1) Review; Statement of Changes. On 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.
(2) Changes Indicated in the Officer’s Certificate. The officer must note
in the certificate prescribed by Rule 30(f)(1) whether a review was requested
and, if so, must attach any changes the deponent makes during the 30-day
period.
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The Tenth Circuit interprets Rule 30(e) narrowly, thus limiting permissible changes
to deposition testimony. See Garcia v. Pueblo Country Club, 299 F.3d 1233, 1242 (10th Cir.
2002). In discussing the purpose of Rule 30(e), the court in Garcia, quoting Greenway v.
International Paper Co., 144 F.R.D. 322, 325 (W.D.La. 1992), stated:
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.
Garcia, 299 F.3d at 1242 n.5. The court further stated that “[w]e do not condone counsel’s
allowing for material changes to deposition testimony and certainly do not approve of the
use of such altered testimony that is controverted by the original testimony.” Id. “Errata
sheets may be used to correct errors or to clarify an answer when a question is not
understood, but it [sic] may not be used to alter what has been stated under oath.” Myers
v. Dolgencorp, Inc., No. 04-4137-JAR, 2006 WL 408242, *1 (D.Kan. 2006). Non-material
changes to deposition testimony are permitted by Rule 30(e). Id.
In Burns v. Board of County Commissioners of Jackson County, 330 F.3d 1275,
1282 (10th Cir. 2003), the court held that deposition changes pursuant to Rule 30(e) should
be evaluated under the same analysis for determining whether an affidavit in support of a
summary judgment motion may be disregarded because it conflicts with the affiant’s prior
sworn statements. A contrary affidavit will be disregarded when it “‘constitutes an attempt
to create a sham fact issue.’” Id. at 1282 (quoting Franks v. Nimmo, 796 F.2d 1230, 1237
(10th Cir. 1986)). The factors a court must consider in deciding whether an affidavit
presents a sham fact issue and, correspondingly, whether to permit deposition changes
pursuant to Rule 30(e), include: (1) “whether the affiant was subject to cross-examination
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during his earlier testimony”; (2) “whether the affiant had access to the pertinent evidence
at the time of his earlier testimony or whether the affidavit was based on newly discovered
evidence”; and (3) “whether the earlier testimony reflects confusion which the affidavit
attempts to explain.” Id.
B.
Application
Here, the three deposition answers at issue relate to photographs that Gillis took
after the incident in the bathroom stall at Home Depot. In questioning Gillis about the
photos, defense counsel asked if she ever touched or moved the door to the handicapped
stall while she was in the men’s room. [#28-3] at 3 (p. 99 of deposition transcript). At the
deposition, Gillis responded that she did not remember. Id. On the errata sheet, Gillis
modified her response by stating, “Yes, I remember going into handicapped stall.” [#28-4]
at 3 (p. 4 of errata sheet).
The second answer that Gillis modified was in response to defense counsel’s
question about whether Gillis ever took any photographs from inside the handicapped stall
while she was in the men’s room. [#28-3] at 3. At the deposition, Gillis responded that she
did not remember if she was inside the stall or not. Id. On the errata sheet, Gillis modified
her response by stating, “Yes, I remember taking pics of grab bar and being inside
handicapped stall.” [#28-4] at 3.
The third answer that Gillis modified involved the following exchange:
Q
Did you ever, while in the men’s room, move anything or change the
positioning of anything as it was at the time you first entered?
A
I don’t remember. The door. I had to then have changed the door
when I opened it.
Q
You mean the entry door to –
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A
Yes.
Q
– the restroom itself?
A
Yes.
Q
Anything else?
A
I don’t think so, no.
Q
Do you recall for sure?
A
No.
[#28-3] at 4. On the errata sheet, Gillis modified the above response where she said, “I
don’t think so, no” by stating, “Yes, I can recall touching men’s bathroom door[,]
handicapped stall door[,] grab bar, toilet roll.” [#28-4] at 3.
Defendant argues that Gillis’s modifications impermissibly alter what was said under
oath. Defendant contends that Gillis never claimed during her deposition that she did not
understand the questions for which she is now trying to change her answers, nor is there
any basis to believe Gillis’s capacity to answer the questions was diminished. [#28] at 10.
Defendant claims that Gillis and her counsel “had to know in advance of her deposition that
she would be called upon in her deposition to account for all of the discrepancies in the
photos that suggest evidence tampering/fabrication.” Id.
As Plaintiffs point out in the Response, however, subsequent testimony in Gillis’s
deposition shows that Gillis later recalled going into the handicapped stall to take
photographs.2 [#38] at 4-5. Moreover, the subsequent testimony cited by Plaintiffs shows
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Plaintiffs fail to attach to their Response the portions of the deposition transcript on
which they rely for their argument. They do, however, re-type those portions of the transcript in
their Response. Because Defendant has not objected to the accuracy of the re-typed portions,
the Court assumes they are accurate.
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that Gillis was reviewing the pertinent photographs at that time and thus had the benefit of
the photographs to enhance her recollection. Id. On the contrary, as to the questions and
answers that are the subject of the instant Motion, the transcript suggests that Gillis was
not reviewing any photographs when answering those questions. See [#28-3] at 3-4.
Thus, although the parties fail to provide enough of the deposition transcript for the Court
to obtain a complete picture, it appears to the Court that during her subsequent testimony
in which she was looking at specific photographs, Gillis’s recollection of whether she went
into the bathroom stall, among other details, was refreshed. That subsequent recollection
may very well explain the Rule 30(e) changes Gillis made. The fact that, with the benefit
of the photographs, Gillis later recalled during her deposition that she was, in fact, inside
the stall to take pictures, renders her Rule 30(e) modifications far less manipulative than
Defendant alleges in its Motion.
The Court notes that Gillis took the photographs of the bathroom and the stall on
May 4, 2010, the date of the underlying incident. [#28-2] at 3. Her deposition was more
than two years later on July 25, 2012. [#28-3] at 2. Thus, it makes sense to the Court that
when Gillis was first questioned in her deposition about whether she went inside the stall
to take photos, she did not remember because she was not looking at the photos. It also
makes sense that during subsequent questioning when she was able to view the photos,
she remembered that she went into the stall, among other details.
The Court therefore finds that under these circumstances, including the very limited
deposition testimony provided by the parties, Gillis’s three deposition modifications at issue
here do not constitute material alterations to her testimony. The Court finds that the
changes are, in large part, consistent with subsequent testimony during the same
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deposition when Gillis had the benefit of photographs to refresh her recollection. Because
the Court finds that under these circumstances Gillis’s Rule 30(e) modifications are not
material, the Court need not address the three Burns factors. See Myers, No. 04-4137JAR, 2006 WL 408242, *1 (D.Kan. 2006) (holding that Rule 30(e) allows both non-material
changes to deposition testimony and material changes that satisfy the Burns factors). To
the extent that a more complete version of the deposition transcript would reflect the kind
of material manipulation of deposition responses that Defendant alleges in its Motion, the
Court’s decision does nothing to prevent Defendant from utilizing the changed responses
on the errata sheet to impeach Gillis’s credibility.
Defendant next argues that Gillis’s errata sheet should be stricken because it is not
properly notarized. [#28] at 11-13. Defendant first contends that although the errata sheet
was signed by a notary, it was not “notarized,” which presumably means the notary seal
was not imprinted. Id. at 11. Alternatively, Defendant contends that there is no indication
on the errata sheet that Gillis, who lives out of state, signed the sheet in the notary’s
presence. Id.
The Court finds that Defendant’s arguments regarding improper notarization are
without merit. First, the Court is not convinced that the notary seal is not imprinted on the
errata sheet. The copy provided to the Court shows markings that appear to form a circle
in a spot where the seal is likely to be placed. [#28-4] at 5. Although the markings are very
faint and not discernable, in the absence of a cleaner copy, the Court cannot make a
determination that a notary seal is not imprinted. Regardless, even if Defendant’s notary
contentions are true, Defendant provides no legal authority for the contention that striking
the errata sheet is an appropriate sanction for an improper notarization. Absent such
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authority, the Court will not strike the errata sheet on these grounds. Again, to the extent
Defendant believes it can show improper notarization, nothing in this decision prohibits it
from using the errata sheet as a basis to challenge the truthfulness of Gillis’s statements.
III.
Conclusion
For the foregoing reasons,
IT IS HEREBY ORDERED that the Motion [#28] is DENIED.
Dated: January 31, 2013
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