Coffeyville Resources Refining & Marketing, LLC v. Liberty Surplus Insurance Corporation et al

Filing 343

MEMORANDUM AND ORDER denying without prejudice 325 Motion by Illinois Union Insurance Company to Strike, in Part, the Affidavit of Sam McCormick. See order for details. Signed by Magistrate Judge Karen M. Humphreys on 2/23/2012. (sj)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

COFFEYVILLE RESOURCES
REFINING & MARKETING,
Plaintiff,
v.
LIBERTY SURPLUS INSURANCE
CORPORATION, et al.,
Defendants.

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Case No. 08-1204-MLB

MEMORANDUM AND ORDER

This matter is before the court on Illinois Union Insurance Company’s motion to strike
portions of Sam McCormick’s affidavit. (Doc. 325).1 Illinois Union argues that the affidavit
is an improper attempt to substantively change testimony which Mr. McCormick provided
during his deposition on October 26, 2011. Plaintiff counters that the corrections noted in
the affidavit are permitted by Fed. R. Civ. P. 30(e) and that the changes are not material.
Illinois Union asserts that the changes are material.
The problem with the parties’ debate over “materiality” is that the issue is raised
without benefit of any substantive context and the court is unable to discern the significance

1

Mr. McCormick is one of plaintiff’s expert witnesses.

of the proposed corrections.2 For example, one of the disputed corrections involves
McCormick’s original deposition testimony that certain numbers on a document were
provided “by Mr. Gross’ paralegal.” The affidavit seeks to correct this testimony and
indicates that the numbers were provided “by Mr. Gross.” The limited briefing provides no
clue as to the significance of whether Mr. Gross’ paralegal provided the numbers rather than
Mr. Gross.

Similarly, plaintiff argues that another correction concerning damage

computations is not significant because the correction is consistent with other deposition
testimony by (1) this witness and (2) a separate Rule 30(b)(6) deposition witness.
Under the circumstances, the court declines the parties’ invitation to address the
materiality of the “corrections” at this time and the motion to strike shall be DENIED
WITHOUT PREJUDICE. Union Illinois may reassert its objections to the affidavit in the
context of a summary judgment motion or other dispositive motion when the materiality of
the testimony is fully developed.

2

Issues concerning Rule 30(e) deposition corrections and “sham affidavits” have
been addressed by the Tenth Circuit in the context of summary judgment rulings where
the materiality of the testimony is obvious. See, e.g., Burns v. Bd of County
Commissioners of Jackson County, 330 F. 3d 1275 (10th Cir. 2003). In this case, there is
no pending summary judgment motion and defendants do not explain how a ruling on this
evidentiary issue materially advances the resolution of this case.
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IT IS THEREFORE ORDERED that Illinois Union’s motion to strike (Doc. 325)
is DENIED WITHOUT PREJUDICE.
Dated at Wichita, Kansas this 23rd day of February 2012.

S/Karen M. Humphreys
KAREN M. HUMPHREYS
United States Magistrate Judge

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