Travelers Indemnity Company of Connecticut et al v. Attorney's Title Insurance Fund, Inc. et al
Filing
262
ORDER granting 251 Plaintiffs Travelers Indemnity Company and St. Paul Fire & Marine Insurance Company and Intervening Plaintiff RSUI Indemnity Company's Motion to Strike Shirin Vesely Errata Sheet or, in the Alternative, Motion for Leave to Reopen Shirin Vesely Deposition and Incorporated Memorandum of Law. See order for details. Signed by Magistrate Judge Carol Mirando on 3/7/2016. (LS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
TRAVELERS INDEMNITY
COMPANY OF CONNECTICUT and
ST. PAUL FIRE & MARINE
INSURANCE COMPANY,
Plaintiffs,
v.
Case No: 2:13-cv-670-FtM-38CM
ATTORNEY’S TITLE
INSURANCE FUND, INC.,
FLORIDA TITLE CO., SECTION
10 JOINT VENTURE, LLP, SKY
PROPERTY VENTURE, LLC, CAS
GROUP, INC., STEPHAN, COLE
& ASSOCIATES, LLC and
INTEGRA REALTY RESOURCES
SOUTHWEST FLORIDA, INC.,
Defendants.
ORDER
This matter comes before the Court upon review of Plaintiffs Travelers
Indemnity Company and St. Paul Fire & Marine Insurance Company and
Intervening Plaintiff RSUI Indemnity Company's Motion to Strike Shirin Vesely
Errata Sheet or, in the Alternative, Motion for Leave to Reopen Shirin Vesely
Deposition and Incorporated Memorandum of Law (Doc. 251) filed on January 22,
2016.
On February 8, 2016, Defendant Section 10 Joint Venture LLP filed a
response to the motion.
Doc. 255.
With leave of Court, Plaintiffs Travelers
Indemnity Company and St. Paul Fire & Marine Insurance Company and
Intervening Plaintiff RSUI Indemnity Company filed a reply. Doc. 258. For the
reasons that follow, the motion is due to be granted.
Background
This lawsuit stems from an underlying Florida state court action in which
Defendants Attorney Title Insurance Fund (“ATIF”) and Section 10 Joint Venture,
LLP (“Section 10”) entered into a Coblentz agreement, the terms of which included a
consent judgment of $40 million against ATIF, collectible only against ATIF’s
insurers. Doc. 239 at 4. Travelers Indemnity Company of Connecticut (“Travelers”)
and St. Paul Fire & Marine Insurance Company (“St. Paul Fire”), two of ATIF’s
insurers, 1 filed the present declaratory judgment action seeking a determination that
the Coblentz agreement is not enforceable against them.
Docs. 1, 37.
The
reasonableness of the settlement amount is an issue in this case. Doc. 251 at 3.
Shirin Vesely, a trial attorney with more than two decades of litigation
experience, is co-counsel for Section 10 Joint Venture LLP (“Section 10”) in this case.
Doc. 251-1 at 5-8.
She represented Section 10 in the state court action and in
negotiations with ATIF regarding the Coblenz agreement.
Doc. 251 at 2.
Ms.
Vesely was deposed in this action as the corporate representative of Section 10 and
in her individual capacity. Docs. 251 at 3. On November 21, 2015, Ms. Vesely was
deposed; however, the parties dispute whether she was deposed in her individual
capacity or as corporate representative on this date. Id.; Docs. 255 at 2, 255-1 at 2.
RSUI Indemnity Company, the intervening Plaintiff in this action, was another
insurer of ATIF. Because Plaintiffs and Intervening Plaintiff filed the instant motion
jointly, they will be collectively referred to as the “Plaintiffs” hereafter.
1
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During the deposition, Ms. Vesely testified that she had authority from her
client, Section 10, to accept $11 million policy limits, and had authority to accept
policy limits conditioned on a determination of coverage. Doc. 251-4 at 12. She
testified that all of her communications with the coverage counsel for ATIF, Mr. Tom
Elligett, in the underlying state court action were verbal.
Id. at 153-54.
She
testified that while it was never in a form of formal written demand, based on her
discussions with Mr. Elligett, it was “generally understood” that Section 10 would
settle its claims against ATIF for $11 million. Id. at 5-14.
Subsequent to her deposition, Ms. Vesely made ten changes to her November
21, 2015 testimony via an errata sheet. To illustrate the nature of the changes, some
of those responses and changes will be outlined here.
In response to counsel’s
question whether Section 10 ever conveyed a demand for $11 million to settle its
claims against ATIF, Ms. Vesely answered, “I can safely say that Tom knew or
recognized that my clients would have gladly settled with Travelers for policy limits
if Travelers had stepped in at that point. And that’s based on my general recollection,
my general discussions.”
Doc. 251-4 at 7-8.
In her errata sheet to correct this
testimony, Ms. Vesely wrote “Section 10 does not know what Mr. Elligett knew or
recognized regarding the willingness of Section 10 to settle with Travelers/St. Paul
for policy limits.” Doc. 251-5 at 2. In response to counsel’s question whether at any
point between the parties’ mediation on April 23, 2 and the parties’ execution of the
Coblenz agreement on September 9, 2013, Section 10 advised ATIF that it would
2
Counsel did not specify the year.
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settle with ATIF for $11 million, Ms. Vesely responded, “[v]erbally, there’d no
question that there was discussion with Tom Elligett that we would have accepted - I mean there wasn’t in a written demand…” Doc. 251-4 at 10. In her errata sheet
to correct this testimony, Ms. Vesely writes “Section 10 is unaware of any
communication to ATIF or its representatives regarding the willingness of Section 10
to settle with Travelers/St. Paul for policy limits prior to the signing of the Coblenz
Agreement.”
Doc. 251-5 at 2.
Counsel followed up in this general line of
questioning whether Section 10 informed ATIF that it would be willing to settle for
the $11 million policy limits, and Ms. Vesely responded throughout her deposition,
“that was communicated,” “I’m telling you what we discussed generally with Tom
Elligett,” and “I believe that was communicated to Tom not in the form of a demand,
so to speak, but in general that was acceptable to my clients.” Doc. 251-4 at 5-14.
Each of these responses also were changed to “Section 10 is unaware of any
communication to ATIF or its representatives regarding the willingness of Section 10
to settle with Travelers/St. Paul for policy limits prior to the signing of the Coblenz
Agreement.”
Doc. 251-5 at 2. The remaining questions, answers, and corrected
testimony is similar to the examples outlined here.
Plaintiffs move to strike the errata sheet completed by Ms. Vesey to correct her
November 21, 2015 deposition testimony.
They argue that the errata sheet is
untimely, fails to provide the reasons for the changes made, and improperly purports
to make substantive and contradictory changes to her sworn testimony. Doc. 251 at
2. In the alternative, they argue that the Court should enter an order reopening Ms.
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Vesey’s deposition, at her or her client’s expense, so that Plaintiffs may inquire into
the issues surrounding the errata sheet answers. Id. They also request that in the
event her deposition is reopened, they should be able to present both versions of Ms.
Vesey’s testimony to the trier of fact. Id.
Section 10 responds by arguing that the errata sheet was timely, and that
substantive changes to deposition testimony are proper via an errata sheet. Doc.
255. Section 10 explains that Ms. Vesey believed that the reasons for the changes in
the errata sheet were self-evident. Doc. 255 at 6. In order to comply with the “strict
procedural requirements” of Rule 30(e), which it recognizes exist, Section 10 requests
leave of Court to extend the time to supplement the errata sheet through an affidavit
by Ms. Vesely explaining her reasons for the changes. Id.; Doc. 255-1. Section 10
does not object to the alternative relief requested, and agrees to produce Ms. Vesey
for another deposition. Doc. 255 at 12. The Court first will address each of the
alleged Rule 30(e) violations below, then, Section 10’s request for leave to supplement
the errata sheet.
Discussion
A. Timing
Rule 30(e), Federal Rules of Civil Procedure, sets forth the procedures for a
deponent to review and make changes to deposition testimony. Pursuant to Rule
30(e):
(1) 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:
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(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) . . . 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.
Fed. R. Civ. P. 30(e). Rule 30(e) calls for “strict compliance with [its] procedural
requirements.”
Norelus v. Denny's, Inc., 628 F.3d 1270, 1304 (11th Cir.2010)
(Tjoflat, dissenting). 3 See also United Subcontractors, Inc. v. Darsey, No. 3:13-CV603-J-99TJC, 2013 WL 5927946, at *2 (M.D. Fla. Nov. 5, 2013). Absent a courtapproved extension, the failure to submit a timely errata sheet may result in the
party’s waiver of the opportunity to make corrections to her deposition testimony.
See Welch v. Mercer Univ., 304 F. App'x 834, 837-38 (11th Cir. 2008) (affirming
district court’s decision to strike an errata sheet filed more than one month too late);
Hambleton Bros. Lumber Co. v. Balkin Enterprises, Inc., 397 F.3d 1217, 1222 (9th
Cir. 2005) (striking untimely errata sheet that was compounded by other Rule 30(e)
violations).
Judge Tjoflat dissented on the grounds that the purported errata sheet in Norelus
did not comply with the strict procedural requirements of Rule 30(e) and thus was merely a
“letter” from plaintiff’s counsel directed to defendant’s counsel alerting of plaintiff’s
inconsistent testimony. 628 F.3d at 1302-1312. The majority heavily criticized the
dissent’s “theory that was never raised by the parties, never considered by the district court,
and never argued to this Court.” Id. at 1292. The majority did not criticize the dissent’s
analysis of Rule 30(e)’s procedural requirements, and the dissent has been cited with
approval by other courts for its analysis of Rule 30(e)’s procedural requirements. See, e.g.
In re Steffensen, 534 B.R. 180, 188 (Bankr. D. Utah 2015); United Subcontractors, Inc. v.
Darsey, 2013 WL 5927946, at *2.
3
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According to Plaintiffs, Ms. Vesely was deposed in her individual capacity on
November 21, 2015. Docs. 251 at 3, 6; 258 at 3. On December 8, 2015, Ms. Vesely’s
co-counsel, Gunn Law Group, received the deposition transcript. 4 Doc. 251 at 5, 11.
On January 13, 2016, Ms. Vesely’s co-counsel served a signed but undated errata
sheet purporting to change her answers to ten questions. Id. at 4-5.
According to Section 10, on November 21, 2015, Ms. Vesely testified as
corporate representative pursuant to Fed. R. Civ. P. 30(b)(6). Doc. 255 at 2. Her
deposition as a corporate representative spanned a period of days from November 19,
2015 to December 21, 2015. Doc. 255 at 2. The conclusion of her testimony as a
corporate representative was transcribed and sent to Ms. Vesely on January 4, 2016.
Id. Section 10 states that “it is unaware of any legal opinion addressing whether the
30-day timeframe set forth in Rule 30(e) is triggered by the conclusion of witness
testimony or whether it is triggered upon each transcript of a witness becoming
available.” Id. at 5. Section 10 cites to In re Weatherford Int'l Sec. Litig., No. 11
CIV. 1646 LAK JCF, 2013 WL 4505259 (S.D.N.Y. Aug. 23, 2013) for the proposition
that multiple witnesses designated by a party under Rule 30(b)(6) should be treated
as a single deponent for purpose of Rule 30(e). Thus, it argues, “[s]ince the collective
testimony under 30(b)(6) should be treated as a single deposition, the party should be
permitted 30 days from the transcription of the concluded deposition to submit an
errata.” Id.
The parties do not discuss when Ms. Vesely was notified of the deposition transcript,
only when she received it.
4
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The Court is not persuaded by Section 10’s argument. First, nowhere in its
response does Section 10 dispute that Ms. Vesely received the transcript of the
November 21, 2015 deposition on December 8, 2015 or that she served her errata
sheet on January 13, 2016. 5 Second, a declaration of the production supervisor at
the court reporting firm confirms that “[o]n December 7, 2015 the transcript of Shirin
Vesely’s November 21, 2015 deposition was sent via Federal Express to Gunn Law
Group, P.A. According to the Federal Express tracking history, the transcript was
received by the Gunn Law Group on December 8, 2015.” Doc. 251-6. Regardless of
whether Ms. Vesely testified in her individual capacity or as corporate representative,
nothing in the language of the rule or the case submitted by Section 10 suggests the
accuracy of Section 10’s interpretation of when the thirty-day clock begins to run.
The concept of rule 30(e) is to allow a deponent the opportunity to review and
correct the transcript upon a timely request. The plain language of the rule clearly
and succinctly states “30 days after being notified by the officer that the transcript or
recording is available.” Fed. R. Civ. P. 30(e). The Court is not aware of any cases
that afford this plain language of the rule any other meaning. The case cited by
Section 10 interprets the timeliness of the request, not the timeliness of when the
In her Affidavit, Ms. Vesely states that her deposition occurred on “five (5) separate
days: January 19, 2015, November 19, 2015, November 20, 2015, November 21, 2015, and
December 21, 2015. . . The transcript of my final deposition, which concluded the Section 10
corporate representative testimony, was sent to me, care of Gunn Law Group, P.A., by the
court reporter on January 4, 2016. . . . I submitted two errata sheets: one on January 13, 2016
with respect to my testimony of November 21, 2015; and one on January 14, 2015 with respect
to testimony of November 19, 2015.” Doc. 255-1 at 2-3 (emphasis added). Section 10 admits
in its response that “the deposition transcript at issue was not made available until December
8, 2015.” Doc. 255 at 7.
5
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thirty-day deadline begins to run.
In re Weatherford Int'l Sec. Litig., 2013 WL
4505259, at *2 (“The issue here is whether the depositions of Weatherford’s four Rule
30(b)(6) designees constitute a single deposition for the purpose of the request
requirement under rule 30(e).”).
Other cases have rejected arguments that possession of the transcript rather
than notification, as the plain language of the rule suggests, triggers the thirty-day
period. Maronda Homes, Inc. of Florida v. Progressive Exp. Ins. Co., No. 6:14-CV1287-ORL-31, 2015 WL 4167377, at *2 (M.D. Fla. July 9, 2015) (“[A] deponent is
allowed 30 days after being notified by the [court reporter] that the transcript . . . is
available’ to review the deposition transcript and submit changes and corrections.”);
EBC, Inc. v. Clark Bldg. Sys., Inc., 618 F.3d 253, 266 (3d Cir. 2010) (“We emphasize
that Rule 30(e)'s thirty-day clock begins to run when the party is notified by the court
reporter that transcript is available for review, not when the party or deponent
physically receives the transcript from the court reporter.”); Hambleton Bros. Lumber
Co. 397 F.3d at 1224 (“FRCP 30(e) states that the thirty-day correction clock begins
upon notification of availability, not possession.”). In Maronda, the witness was a
30(b)(6) witness and, although it was not an issue in the case, the court did not
differentiate between a corporate representative and an individual deponent when
setting forth the procedural requirements of Rule 30(e). 2015 WL 4167377, at *2
To adopt the reading suggested by Section 10 would require the Court to make
an illogical leap from the very clear and plain language of the rule. Based on the
foregoing, the Court finds that the errata sheet was not timely. Due to the short
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nature of the delay, however, the Court will not determine whether the errata should
be stricken on this basis alone without considering the Plaintiffs’ other arguments.
See Hambleton Bros. Lumber Co. 397 F.3d at 1224 (“Missing the thirty day deadline
by a mere day or two might not alone justify excluding the corrections in every case.”).
B.
Reasons for the changes made
Fed. R. Civ. P. 30(e)(1)(B) requires a deponent making changes to her
testimony to “sign a statement listing the changes and the reasons for making them.”
“The procedural requirements of Rule 30(e) are clear and mandatory,” EBC, Inc. 618
F.3d at 265, and “[t]he requirements of Rule 30(e) must be strictly complied with by
a deponent wishing to change his testimony.”
Rezendes v. Domenick's Blinds &
Decor, Inc., No. 8:14-CV-1401-T-33TBM, 2015 WL 3484835, at *6 (M.D. Fla. June 2,
2015).
Courts have found that the failure to provide a statement of reasons alone
suffices as grounds to strike an errata sheet. Id.; EBC, Inc., 618 F.3d at 265 (listing
cases). It is not enough for a deponent to provide no reasons at all but to claim that
the reasons are “either explicit or reasonably implied from the circumstances.”
Norelus v. Denny's, Inc., 628 F.3d 1270, 1305 (11th Cir. 2010) (Tjoflat, dissenting)
(internal quotations and citations omitted). As the Court of Appeals for the Ninth
Circuit has explained, “[a] statement of reasons explaining corrections is an
important component of errata submitted pursuant to FRCP 30(e), because the
statement permits an assessment concerning whether the alterations have a
legitimate purpose.” Hambleton Bros. Lumber Co. 397 F.3d at 1224-25. Moreover,
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“[j]ust as a court may disregard objections to discovery requests first advanced in a
response to a motion to compel, a court may strike an errata sheet that fails to state
the reasons for each change, even if the party offers reasons for the changes in
responding to the motion to strike.” Maronda, 2015 WL 4167377, at *2 (internal
citations omitted).
Here, it is undisputed that the untimely errata sheet does not include reasons
for any of the changes made to Ms. Vesely’s testimony. While Section 10 “recognizes
that case law interpreting Rule 30(e) appears to hold that providing an express reason
for a change, even if only perfunctory, is a strict procedural requirement,” it states
that “Ms. Vesely believed the reasons for the changes in the errata were self-evident.”
Doc. 255 at 6. This is insufficient under the rule’s procedural requirements. The
Court finds that the errata sheet fails to meet Rule 30(e)’s procedural requirement in
its failure to include any reasons for the changes made. The untimeliness of the
errata sheet coupled with its failure to include any reasons for the changes made are
sufficient grounds to strike the errata by Ms. Vesey. The analysis cannot end here,
however, because Section 10 seeks redress for its failure to comply.
To cure the procedural defects, Section 10 requests an extension of time under
Fed. R. Civ. P. 6(b) to supplement the errata and include express reasons for the
attempted changes to Ms. Vesely’s testimony. Id. Pursuant to Fed. R. Civ. P. 6(b),
“[w]hen an act . . . must be done within a specified time, the court may . . . extend the
time on motion made after the time has expired if the party failed to act because of
excusable neglect.” Before engaging in the analysis of whether excusable neglect
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exists to warrant granting leave to Section 10 to supplement Ms. Vesely’s errata, the
Court will first determine whether Rule 30(e) permits substantive changes at all;
because if the answer is negative, then Section 10’s request to add reasons for those
changes becomes moot.
C.
Substantive changes
At the outset, the Court finds that the corrections on Ms. Vesely’s errata sheet
are clearly contradictory to her deposition testimony on November 21, 2015. First,
numerous times Ms. Vesely testified that all of her communications with Mr. Elligett
were verbal, and numerous times she testified that her client’s willingness to settle
for $11 million were verbally communicated to Mr. Elligett. Doc. 251-4 at 5-14. Her
so-called “correct[ions]” to show that Section 10 is unaware of any communication to
ATIF or its representatives are contradictory to her own testimony that, as counsel
for Section 10, she verbally communicated to Mr. Elligett, counsel for ATIF, her
authority and willingness to settle for $11 million. Doc. 255-1 at 2.
Plaintiffs rely primarily on the Eleventh Circuit’s decision in Norelus to argue
that substantive changes which attempt to contradict deposition testimony are not
permitted. In Norelus, the Court discussed the issue in the context of imposition of
§ 1927 sanctions against attorneys who submitted a 63-page errata sheet containing
868 changes to the plaintiff’s deposition testimony. 628 F.3d at 1278. In that case,
only the plaintiff’s testimony supported her claims of employment discrimination,
“and the submission of the errata document rendered that testimony useless.” Id. at
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1286. Despite this, the plaintiff’s attorneys continued to litigate the case. Id. at
1286-87.
In upholding the sanctions award, the majority stated that “the [attorneys’]
submission of the novella-length errata sheet making a slew of material changes to
their client’s deposition testimony was improper.” Id. at 1281. The court cited the
following cases as supporting authority
Hambleton Bros. Lumber Co. v. Balkin Enters., Inc., 397 F.3d 1217,
1225 (9th Cir.2005) (upholding a district court's judgment to strike an
errata sheet listing twenty-seven changes, noting that ‘Rule 30(e) is to
be used for corrective, and not contradictory, changes’); Garcia v. Pueblo
Country Club, 299 F.3d 1233, 1242 n. 5 (10th Cir.2002) (‘We 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.’); Thorn v. Sundstrand
Aerospace Corp., 207 F.3d 383, 388–89 (7th Cir.2000) (explaining that
an errata sheet effecting ‘a change of substance which actually
contradicts the transcript is impermissible unless it can plausibly be
represented as the correction of an error in transcription, such as
dropping a ‘not’’); Greenway v. Int'l Paper Co., 144 F.R.D. 322, 325
(W.D.La.1992) (‘[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 a take home examination.’)”
Id.
The court also noted authority that supports a proposition contrary to its
holding. Id. (citing Podell v. Citicorp Diners Club, Inc., 112 F.3d 98, 103 (2d Cir.
1997) (“[T]he language of [Rule 30(e)] places no limitations on the type of changes
that may be made, nor does [Rule 30(e)] require a judge to examine the sufficiency,
reasonableness, or legitimacy of the reasons for the changes—even if those reasons
are unconvincing.”); Reilly v. TXU Corp., 230 F.R.D. 486, 487–90 (N.D.Tex.2005)).
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Prior to Norelus, courts were split on whether substantive changes absent
obvious confusion or changes that are not the result of typographical or
transcriptional errors are permitted. See, e.g. Unlimited Res. Inc. v. Deployed Res.,
LLC, No. 307-CV-961-J-25MCR, 2010 WL 55613, at *3 (M.D. Fla. Jan. 5, 2010)
(acknowledging a split of authority, but ultimately adopting a broad view of the Rule
to permit substantive changes); Reynolds v. Int'l Bus. Machines Corp., 320 F. Supp.
2d 1290, 1300 (M.D. Fla.) aff'd, Reynolds v. IBM, 125 F. App'x 982 (11th Cir. 2004)
(relying on the reasoning of Tenth and Seventh circuit cases to adopt a narrow view
of the Rule and disregard plaintiff’s errata sheet that made material alterations to
his deposition testimony when there was no showing that there was an error in
transcription or confusion during the deposition).
Courts adopting the broad
interpretation of the rule have noted safeguards that can be implemented to prevent
abuse; namely, allowing the original deposition answers to remain part of the record
and to be read at trial, permitting reopening of the deposition to address the changes,
and attributing the cost of the reopened deposition to the party that made the
changes.
Unlimited Res. Inc. v. Deployed Res., 2010 WL 55613, at *3; United
Subcontractors, Inc. v. Darsey, No. 3:13-CV-603-J-99TJC, 2013 WL 5770559, at *1
(M.D. Fla. Oct. 24, 2013); Maharaj v. GEICO Cas. Co., 996 F. Supp. 2d 1303, 1311-12
(S.D. Fla. 2014).
Since Norelus, courts in this district still remain divided on whether
substantive and contradictory changes to a deponent’s original testimony are
permissible. See, e.g. Maronda, 2015 WL 4167377, *3 (“While the Eleventh Circuit
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may not have addressed the issue in 2009, it made clear a year later in Norelus that
material changes, especially when contradictory to the deponent's original testimony,
are not permissible absent a good reason”); United Subcontractors, Inc., 2013 WL
5770559, at *1 (M.D. Fla. Oct. 24, 2013) (“[I]n the Norelus decision, the court focused
on the issue of sanctions against attorneys for submitting an errata sheet with 868
changes . . . [but] did not make a ruling as to whether substantive changes could or
could not be made to deposition testimony”). The court in United Subcontractors,
Inc. was more persuaded by the cases adopting a broad view of Rule 30(e) and found
nothing in the Norelus opinion restricts that view. 2013 WL 5770559, at *1-2.
Plaintiffs request the Court to adopt a narrow view of Rule 30(e) and strike the
substantive changes made by Ms. Vesely on her errata sheet. Section 10, on the
other hand, requests the Court to follow the cases which interpret Rule 30(e) broadly
and allow the changes to Ms. Vesely’s testimony. United Subcontractors, Inc., 2013
WL 5770559; Maharaj, 996 F. Supp. 2d 1303, 1311-12. The undersigned is more
persuaded by the analysis in Maronda Homes, Inc. of Florida wherein the court
stated:
As a necessary part of the Eleventh Circuit's analysis in Norelus, the
court's rejection of the use of a Rule 30(e) errata sheet to make material
and contradictory changes to deposition testimony is part of the law of
the circuit. See United States v. Kaley, 579 F.3d 1246, 1253 n. 10 (11th
Cir.2009) (“[T]he holding of a case …, as the Supreme Court observed,
compris[es] … both the result of the case and ‘those portions of the
opinion necessary to that result ....’” (quoting Seminole Tribe of Florida
v. Florida, 517 U.S. 44, 66–67, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996))).
Consequently, absent a good reason, such as a transcription error or
sufficient showing of confusion, material and contradictory changes are
not permissible in this circuit.
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2015 WL 4167377, at *3.
Upon review of the deposition transcript, there is no
sufficient showing of confusion or any other good reason to permit the substantive
changes. As such, the Court finds that due to the procedural violations of Rule 30(e),
the errata sheet must be stricken. Moreover, the Court finds that the attempted
changes to Ms. Vesely’s deposition testimony are substantive, contradictory, and
inappropriate; therefore, the errata is due to be stricken on this this basis as well.
Because the errata sheet attempts to make inappropriate substantive changes to Ms.
Vesely’s deposition testimony, Section 10’s request for leave to supplement the errata
sheet with reasons for the changes made must be denied as moot.
ACCORDINGLY, it is hereby
ORDERED:
1.
Plaintiffs Travelers Indemnity Company and St. Paul Fire & Marine
Insurance Company and Intervening Plaintiff RSUI Indemnity Company's Motion to
Strike Shirin Vesely Errata Sheet or, in the Alternative, Motion for Leave to Reopen
Shirin Vesely Deposition and Incorporated Memorandum of Law (Doc. 251) is
GRANTED.
2.
The errata sheet completed by Ms. Vesely regarding her November 21,
2015 testimony is STRICKEN.
DONE and ORDERED in Fort Myers, Florida on this 7th day of March, 2016.
Copies: Counsel of record
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