Maronda Homes, Inc. of Florida v. Progressive Express Insurance Company
Filing
112
ORDER granting 109 Motion to Strike. Signed by Magistrate Judge Thomas B. Smith on 7/9/2015. (SMW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
MARONDA HOMES, INC. OF FLORIDA,
Plaintiff,
v.
Case No: 6:14-cv-1287-Orl-31TBS
PROGRESSIVE EXPRESS INSURANCE
COMPANY,
Defendant.
ORDER
This matter comes before the Court without oral argument on Plaintiff Maronda
Homes, Inc. of Florida’s Motion to Strike Errata Sheets of Tammy Morgan as Records
Custodian and Corporate Representative for Progressive Express Insurance Company
(Doc. 109). Progressive has filed a response in opposition to the motion (Doc. 110).
For the reasons that follow, the motion will be GRANTED.
This is an action by Maronda for a declaration that Progressive breached the terms
of an insurance policy it issued to Maronda, and for damages consisting of attorney’s fees
and costs (Doc. 2). During discovery, Maronda noticed the FED. R. CIV. P. 30(b)(6)
depositions of Progressive’s records custodian and its corporate representative “with the
most knowledge of the facts pertinent to the claims and defenses in this litigation.”
(Docs. 74-1, 74-3). Progressive produced Tammy L. Morgan to testify on its behalf in
both capacities (see Docs. 74-2, 74-4). Unfortunately, Ms. Morgan proved woefully
unprepared and was unable to answer many of the questions she was asked at the
depositions (Doc. 97 at 2–3).
Following Ms. Morgan’s deposition as corporate representative, Progressive went
into damage-control mode. It proposed and then noticed a second deposition of its
corporate representative, this time naming Todd Parnell as its representative (Doc. 97 at
2). Maronda moved to strike the notice, but the Court denied the motion, finding that the
better solution to the problem presented by an unprepared Rule 30(b)(6) witness is to
have the corporation produce a better prepared representative (Id. at 4–5). After she
received the transcripts from her two depositions, Ms. Morgan submitted lengthy errata
sheets pursuant to Rule 30(e) making mostly substantive changes to her testimony
(Doc. 109 at 15–29). Maronda is moving the Court to strike the errata sheets, arguing
that they are untimely and otherwise improper (Doc. 109).
Under Rule 30(e), on request of the deponent or a party before a deposition is
completed, 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. If the deponent indicates any “changes in form or substance,” the deponent
must “sign a statement listing the changes and the reasons for making them.” FED. R.
CIV. P. 30(e)(1)(B).
Maronda alleges that Ms. Morgan did not return the errata sheets in a timely
fashion. Specifically, it claims the transcripts from the records custodian and corporate
representative depositions were provided to Progressive’s lawyer on February 5 and
February 24, respectively, and the errata sheets were returned to the court reporter on
March 17 and March 30 (Doc. 109 at 3, 6). Progressive disputes the dates Maronda
says it received each transcript, but even under its own version of the facts, Progressive
admits that the errata sheet for the records custodian deposition was untimely (Doc. 111
at 4, 7). Progressive now asks the Court to find that its failure to timely return the errata
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sheet for the records custodian deposition was the result of excusable neglect, and
retroactively extend the deadline for serving the errata sheet.
The Court finds that the errata sheet for the records custodian deposition was
untimely. While it will not strike the errata sheet on this basis alone, as explained below,
untimeliness is not the only problem with the errata sheet. The Court gives Progressive
the benefit of the doubt, and finds that the errata sheet for the corporate representative
deposition was timely served.
Progressive failed to provide reasons for the changes made on the errata sheets,
as required by Rule 30(e)(1)(B) (Doc. 109 at 12). Progressive concedes that it has not
complied with this requirement, but asks the Court to excuse its noncompliance because
“the circumstance for [the] changes are readily apparent through the filings herein.”
(Doc. 111). Rule 30(e)’s requirement that the deponent identify the reasons for any
changes ensures that the opposing party can assess whether the alterations have a
legitimate purpose. Hambleton Bros. Lumber Co. v. Balkin Enterprises, Inc., 397 F.3d
1217, 1224–25 (9th Cir. 2005), quoted favorably in EBC, Inc. v. Clark Building Systems,
Inc., 618 F.3d 253, 266 (3d Cir. 2010). Like the provisions of the discovery rules
requiring parties to provide reasons for objections to discovery requests, see FED. R. CIV.
P. 33(b)(4), 34(b)(2)(B), 36(a)(5), the aim of this requirement is to limit unnecessary
motion practice by giving a party the opportunity to assess the merits of the other party’s
position. Just as a court may disregard objections to discovery requests first advanced
in a response to a motion to compel, see, e.g., Bailey v. City of Daytona Beach Shores,
286 F.R.D. 625, 627 (M.D. Fla. 2012); U.S. Fidelity & Guaranty Co. v Liberty Surplus Ins.
Co., 630 F. Supp. 2d 1332, 1340 (M.D. Fla. 2007), a court may strike an errata sheet that
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fails to state the reasons for each change, even if the party offers reasons for the changes
in responding to the motion to strike, EBC, 618 F.3d at 266 (citing cases).
Even if the Court excused Ms. Morgan’s failure to include the reasons for the
changes she made on the errata sheets, it would still have to strike them because to this
day, she has not provided her reasons. In its response in opposition to Maronda’s
motion, Progressive generally asserts that the questions Ms. Morgan was asked were
variously irrelevant, called for speculation about other people’s perceptions, asked about
matters outside of Ms. Morgan’s personal knowledge, and were “confusing” “due to the
use of compound questions and double negatives.” (Doc. 111 at 18). But, Progressive
does not identify which objections relate to which questions, or explain why these
objections justify the changes made in the errata sheets.
Maronda argues that the errata sheets improperly seek to make substantive and
material changes to Ms. Morgan’s testimony as records custodian and corporate
representative. This argument relies chiefly on the Eleventh Circuit’s decision in Norelus
v. Denny’s Inc., 628 F.3d 1270 (11th Cir. 2010). In Norelus, a plaintiff in an employment
discrimination case submitted a “63-page errata sheet containing 868 attempted
changes” to the plaintiff’s deposition testimony. Id. at 1273. A number of these
changes “improved [the plaintiff’s] case measurably by adding details that [she] had not
provided when she was deposed.” Amlong & Amlong, P.A. v. Denny’s, Inc., 500 F.3d
1230, 1236 (11th Cir. 2006). When the defendants brought the changes to the district
court’s attention, the court ordered the plaintiff’s deposition re-opened. Norelus, 628
F.3d at 1278. The plaintiff’s “erratic” and “inappropriate” behavior caused the re-opened
deposition to be adjourned, and the court ordered the plaintiff and her attorneys to pay
the fees incurred for the deposition. Amlong, 500 F.3d at 1236. When the plaintiff and
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her lawyers refused to comply, the district court dismissed the case. Id. On the
defendants’ motion, the district court sanctioned the plaintiff’s attorneys pursuant to 28
U.S.C. § 1927. Id. at 1236–37. On appeal, the Eleventh Circuit vacated the sanctions
order and remanded to the district court for further proceedings. Id. at 1251–52. On
remand, the district court reinstated the sanctions, and on a subsequent appeal, the
Eleventh Circuit affirmed. Norelus, 628 F.3d at 1302.
In upholding the sanctions award, the majority in Norelus said, without
equivocation, that the attorneys’ “submission of a novella-length errata sheet making a
slew of material changes to their client’s deposition testimony was improper.” 628 F.3d
at 1281. To support this finding, the court cited four cases holding that material and
contradictory changes to deposition testimony are improper, while noting (with a “but see”
signal) two cases supporting the contrary position and one case (with a “cf.” signal)
suggesting that district courts have discretion to permit or refuse material and
contradictory changes depending on the circumstances. Id. In the next paragraph, the
panel majority said “no one (with the possible exception of the dissenting judge on this
panel) seriously contests” that “the improper submission of the massive errata document
rendered the eight days spent on Norelus’ deposition a waste of time and money.” Id. at
1982.
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
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U.S. 44, 66–67 (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.
Norelus also casts doubt on the propriety of changes that either elaborate on or
qualify an answer given at a deposition. Norelus quotes Greenway v. International
Paper Company, 144 F.R.D. 322, 325 (W.D. La. 1992), for the proposition that “[a]
deposition is not a take home examination,” and Thorn v. Sundstrand Aerospace Corp.,
207 F.3d 383, 288–89 (7th Cir. 2000), for the proposition that “a change in substance
which actually contradicts the transcript is impermissible unless it can plausibly be
represented as the correction of an error in the transcript, such as dropping a ‘not.’”
Progressive does not discuss Norelus in its response to the motion. Instead, it
lobs an accusation that Maronda “misrepresents the status of the Eleventh Circuit’s view
on” the use of errata sheets to effect material changes to deposition testimony (Doc. 111
at 12). Progressive encourages the Court to look at Cultivos Yadran S.A. v. Rodriguez,
258 F.R.D. 530, 532 (S.D. Fla. 2009), for “[a] more thorough and accurate description of
the state of the law in this Circuit.” The court in Cultivos Yadran observed that “the
Eleventh Circuit has not directly addressed the issue of whether substantive changes can
readily be made to deposition testimony or whether the deponent needs to show
confusion about particular questions.” 258 F.R.D. at 532. While the Eleventh Circuit
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.1
The Court does not understand Progressive’s failure to address Norelus, which is the first case
cited in the relevant portion of the memorandum in support of Maronda’s motion. This sort of advocacy is
unpersuasive and may lead to Rule 11 sanctions. A party confronted with binding and pertinent authority
1
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The reasons advanced by Progressive for the changes to Ms. Morgan’s testimony
are not sufficient. The fact that an attorney asked a question that calls for speculation or
an irrelevant response does not explain why an answer would need to be changed.
Such changes should rarely be necessary, since a party can have the offending question
and corresponding answer excluded from consideration at summary judgment or trial.
See FED. R. CIV. P. 32(b) (a party may object at a hearing or trial “to the admission of any
deposition testimony that would be inadmissible if the witness were present and
testifying”); FED. R. CIV. P. 56(c)(2) (“A party may object that the material cited to support
or dispute a fact cannot be presented in a form that would be admissible in evidence.”).
Progressive suggests that the changes are warranted because “Plaintiff’s counsel
[asked] intricate factual questions covering minutia contained with over 1200 pages of
claim file materials,” and as such “it is not unreasonable that Ms. Morgan would need to
clarify and correct some of her answers upon seeing them in print.” (Doc. 111 at 14–15).
This is not a fair characterization of the majority of the questions for which Ms. Morgan
changed her answers. It is not plausible to believe Ms. Morgan misunderstood so many
questions, yet went ahead and answered them without asking for clarification. It is also
implausible that she would have to change so many answers in a contradictory fashion
(e.g., changing “Yes” to “No,” “No” to “Yes,” or either “Yes” or “No” to “I don’t know”). In
short, Progressive’s largely nonspecific complaints about Maronda’s lawyer’s questions
do not warrant the sheer number of material changes Progressive seeks to make to Ms.
may attempt to distinguish it, construe it favorably, or argue that it should be overturned, but it may not
ignore it. See FED. R. CIV. P. 11(b)(2) (legal contentions must be “warranted by existing law or by a
nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law”).
“The ‘ostrich-like tactic of pretending that potentially dispositive authority against a litigant's contention does
not exist is as unprofessional as it is pointless.’” Gonzalez-Servin v. Ford Motor Co., 662 F.3d 931, 934
(7th Cir. 2011) (quoting Hill v. Norfolk & Western Ry. Co., 814 F.2d 1192, 1198 (7th Cir. 1987)).
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Morgan’s deposition testimony. Because they are both procedurally and substantively
improper, the errata sheets to Ms. Morgan’s depositions are STRICKEN.
DONE and ORDERED in Orlando, Florida on July 9, 2015.
Copies furnished to Counsel of Record
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