SENATORE v. HOLDER

Filing 55

OPINION AND ORDER granting Defendant's 46 motion to strike and denying as moot Plaintiff's 48 motion in limine. Signed by Judge Christopher R. Cooper on 4/22/2016. (lccrc3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
HOLLY E. SENATORE,
Plaintiff,
v.

Case No. 13-cv-00856 (CRC)

LORETTA E. LYNCH,
Attorney General of the United States,
Defendant.
OPINION AND ORDER
On June 7, 2013, Plaintiff Holly Senatore, a former FBI employee, brought suit against
the Attorney General pursuant to the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 700 et
seq., claiming that the FBI discriminated against and harassed her based on disability and
retaliated against her for engaging in protected activity. Senatore was deposed in connection
with her suit on May 28, 2015. More than six weeks later—and 19 days past the 30-day deadline
set by Federal Rule of Civil Procedure 30(e) for requesting corrections to a deposition
transcript—Senatore submitted an errata containing some 57 edits to the transcript. Although
some of these edits constitute minor clerical changes or typographical corrections, the vast
majority insert statements that were never made or delete testimony that was given 1—going so
far as to include questions that were never asked 2 and to change several answers from “yes” to

1

For instance, Senatore proposes replacing, “I couldn’t be certain of that, so I don’t want
to guess,” with, “The second day of my job I told Floyd with written documentation about my
medical condition and I started having computer problems after that. This problem became
worse as the reasonable accommodation process became more hostile.” The reason given for
this change? Only “[c]larification.” Def.’s Mot. Strike Ex. F at 7.
2

Not only does Senatore misleadingly alter a question that was actually posed to her at
her deposition, see Def.’s Mot. Strike Ex. F at 5 (changing “Did you look into options . . . for

“no.” 3 Defendant Department of Justice has moved to strike the portions of Senatore’s errata
sheet that materially alter the testimony she provided at her deposition.
Rule 30(e) allows deponents to make “changes [to the transcript of their deposition] in
form or substance” by “sign[ing] a statement listing the changes and the reasons for making
them.” The rule’s language is admittedly broad and appears to contemplate more than merely
clerical or typographical edits. Nevertheless, as Judge Boasberg of this Court recently noted, of
the federal courts of appeals to have considered the issue, “the clear majority approves of
granting motions to strike contradictory or material errata sheets[] unless supported by
convincing explanations.” Jackson v. Teamsters Local Union 922, 310 F.R.D. 179, 183 (D.D.C.
2015) (surveying case law from the First, Second, Third, Sixth, Seventh, Ninth, and Tenth
Circuits). Courts “frequently str[ike] such revisions, often on the ground that the explanation
[for the change] was insufficient.” Id. (citing cases). And there is every reason to believe that
the “[D.C.] Circuit would agree with essentially every circuit in holding that material revisions
[to deposition testimony made through errata sheets] should not be accepted absent convincing
explanations.” Id.
Senatore provides no such convincing explanations here. Like the plaintiffs in Jackson,
she instead “rel[ies], almost exclusively, on the following one-word explanations: ‘clarification,’

medical transport vans?” to “[W]ere you aware the FBI was looking into options like medical
transport vans?”); she also appears to create a question out of thin air, where, according to the
government, the audio recording of the deposition “does not reveal any such [question] and
[defense] counsel does not recall ever posing the question [Senatore] wants inserted,” see id. at
5; Def.’s Mot. Strike 16.
3

For example, Senatore was asked, “Did you know at that time that there was a formal
process?” She answered “Yes” at her deposition, but changed her response to “No,” labeling this
change a “correction” with no further elaboration. Def.’s Mot. Strike Ex. F at 3.
2

[or] ‘correction.’” Id. at 185. Yet “[t]hese terse offerings do little but state the obvious; the
Court presumes that Plaintiffs would not submit errata sheets but for some type of mistake or
error. What is missing is any thoughtful or clear articulation of the basis for what constitute
significant alterations in sworn testimony.” Id. “[A]ll of the circuits to consider the issue would
uphold the striking of [such revisions] where the explanations are so scant.” Id. So too will this
Court.
Accordingly, the Court hereby GRANTS Defendant’s [46] Motion to Strike and will
allow only the following revisions, to which Defendant consents and which reflect clerical
mistakes or errors in transcription:
Page

9

Line

Reads

Should Read

Ms. White: I would note that’s
22-23 more than 8 hours ago.

51

17

97
146
148
148
156

22
10
16-18
17
11-12

Ms. White: I would note that’s more than 8
hours ago.
Ms. Seabrook: Good choice.

I can’t

I can’t be certain about this -- what they
specifically did offer.

top secret SDI clearance
trader
Genaldy Stewart
stacking
rogue

SSBI clearance
traitor
Gradalee Stewart
Staffing
rote

All other revisions are hereby STRICKEN. In addition, because the Court does not rely on the
audio recording of Senatore’s deposition in ruling on the government’s motion, the Court hereby
DENIES as moot Senatore’s [48] motion to exclude the audio from the Court’s consideration.

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SO ORDERED.

CHRISTOPHER R. COOPER
United States District Judge
Date:

April 22, 2016

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