Ramirez v. Bolster & Jeffries Health Care Group, LLC

Filing 123

MEMORANDUM OPINION AND ORDER by Magistrate Judge H. Brent Brennenstuhl on 8/2/2016 granting 110 Motion to Strike Errata Sheet appended to the deposition transcript of Stephanie Lyon. cc: Counsel (CDR)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:12CV-00205-GNS
RICARDO RAMIREZ and
KIM WADE, Co-Personal Representatives
of the Estate of Malana Sneed Ramirez

PLAINTIFFS

VS.
BOLSTER & JEFFRIES HEALTH
CARE GROUP, LLC, d/b/a
Hearthstone Place

DEFENDANT

MEMORANDUM OPINION AND ORDER
Before the Court is the motion of the Defendant to strike the errata sheet related to the
deposition transcript of witness Stephanie Lyon (DN 110). The Plaintiff has filed a response
(DN 118), and the Defendant has replied (DN 122).

The matter stands submitted to the

undersigned for ruling.
On March 1, 2016 the parties conducted the deposition of Ms. Lyon, a former employee
of the Defendant. Thereafter, Defendant provided a copy of the deposition transcript to Ms.
Lyon for review. Ms. Lyon returned an errata sheet making changes to various answers given
during the deposition. Defendant contends the changes are beyond the scope of revisions to
testimony permitted under Fed. R. Civ. P. 30(e).

Testimony and Errata Designations in Question
The testimony and Ms. Lyon’s errata corrections to her testimony are as follows:
Q. Okay. And then there was another one that I’m curious if this
was your signature, as well, and if you added in the second part.

A. That’s my signature, but I didn’t write that (indicating).
Q. Okay. So that was added in?
A. That’s my writing (indicating).
(indicating).

That’s not my writing

(DN 110-1, Lyon Deposition Transcript p. 20, ln. 9-17). By contrast, on the errata sheet, for
page 20 at lines 16-17, Ms. Lyon corrected: “That’s not my hand writing – for exhibit one.” (DN
110-2 p. 1).
Next, the question and Ms. Lyon’s response during the deposition read as follows:
Q. You offered her two different positions? Did you offer her two
positions? Is that correct? The Baylor shift, she could come back
as a Baylor, or she could come back at her position she had before?
A. I believe so.
(DN 110-1 p. 32, ln. 4-8). On the errata sheet for page 32 at lines 4-8, Ms. Lyon corrected: “I
was confused on this question. After looking at the notes I made [sic] conversation with Malan
(sic) I only offered her 7a[sic]-7pm Saturday-Sund [sic] which was 23hrs Baylor shift.” (DN
110-2 p. 1).
The transcript of Ms. Lyon’s deposition, in relevant part reads:
Q. Was she offered full-time position?
A. Yes.
Q. Okay. And –
A. Because Baylor wouldn’t have been full-time, so.
Q. Okay. And so she got a full-time position when she came
back.
(DN 110-1 p. 32, ln. 9-14). By contrast, on the errata sheet for page 32 at lines 9-14, Ms. Lyon
corrected: “Baylor weekends is not full-time but part time.” (DN 110-2 p. 1).
2

The deposition question and Ms. Lyon’s testimony in response reads:
Q. Is this the document that you stated you were given advice on
what to put?
A. Yes, that’s my handwriting.”
(DN 110-1 p. 33, ln. 25-p. 34, ln. 3). On the errata sheet for page 341 at line 3, Ms. Lyon
corrected: “Upon closer inspection of exhibit 3 this is not my handwriting or signature. The
writing looks the same as ‘willful’ misconduct related to established policys! [sic] that I said was
not my handwriting from exhibit 1 and 4.” (DN 110-2 p. 1).
Next, the deposition transcript reads:
Q. “Okay. I understand that. On this – this is another document
that was submitted, and it’s along the same line of what I showed
you earlier, but it is a different one, and I’m going to ask you if
you put that information at the bottom?
A. It just don’t look like my handwriting. That’s mine (indicating)
and that’s my name.”
(DN 110-1 p. 36, ln. 21-p. 37, ln. 3). By contrast, on the errata sheet for page 37 at lines 2-3, Ms.
Lyon corrected: “I don’t look look [sic] my handwriting, that’s mine (indicating) and that’s my
signature. For exhibit 4.” (DN 110-2 p. 2).

The Parties’ Arguments For and Against Striking the Errata
Changes
Defendant notes that Rule 30(e) provides a deponent the opportunity to review a
transcript for errors. Defendant argues that the law in the Sixth Circuit makes clear that a
deposition errata sheet is only to correct transcription or typographical errors and may not be
used to make substantive changes to the testimony (DN 110 Memorandum p. 3-4). In support of
1

Ms. Lyon’s errata sheet indicates the correction is for line 3 on page 33, however line 3 on page 33 is a question,
not Ms. Lyon’s answer, and appears unrelated to the issue addressed in the errata entry. From context, it appears
Ms. Lyon’s designation of page 33 was an error and she intended to address her answer at line 3 on page 34.

3

its motion, Defendant cites a number of opinions from the Sixth Circuit and district courts within
the circuit (DN 110 Memorandum p. 3-4).
In response, the Plaintiff does not cite any cases in opposition, and concedes that
“[r]ecent 6th Circuit cases has (sic) limited changes in Errata Sheet to typographical or
transcription errors” (DN 118 p. 2). Plaintiff attempts to distinguish those cases on the basis that
they involved changes made by a party and not by an uninterested non-party witness such as Ms.
Lyon. Moreover, Plaintiff justifies the changes as an effort by Ms. Lyon to “set the record
straight” (DN 118 p. 2).
The Defendant notes in reply that neither case law nor Rule 30(e) make any distinction
between party and non-party witnesses regarding changes to deposition testimony (DN 122). As
to “setting the record straight,” Defendant argues that this is precisely the sort of “take home
test” approach to deposition testimony which the case law forbids (DN 122 p. 2).

Analysis
As the Eastern District of Kentucky has observed:
In a recent unpublished opinion, the Sixth Circuit indicated that
Rule 30(e) does not allow a deponent to alter what was said under
oath. Trout v. FirstEnergy Generation Corp., 339 F. App'x 560,
565 (6th Cir. 2009) (citing Tuttle v. Tyco Electronics Installation
Servs., Inc., 2:06-CV-581, 2008 U.S. Dist. LEXIS 12307, 2008
WL 343178 (S.D. Ohio Feb. 7, 2008)). The court went on to state
that, if Rule 30(e) allowed for substantive changes, "'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. Courts applying the holding in Trout have
stricken errata sheets that attempt to alter substantive testimony
rather than correct typographic or transcription errors. See CNB
Bancshares, Inc. v. StoneCastle Secs. LLC, No. 3:09-CV-33, 2012
U.S. Dist. LEXIS 97541, 2012 WL 2887256, at *3 (E.D. Tenn.
July 13, 2012); EEOC v. Skanska USA Building, Inc., 278 F.R.D.
4

407, 412 (W.D. Tenn. 2012); Walker v. 9912 East Grand River
Assocs., LP, No. 11-12085, 2012 U.S. Dist. LEXIS 46887, 2012
WL 1110005, at *3-4 (E.D. Mich. Apr. 3, 2012); Giebel v.
Lavalley, 5:12-CV-750, 2013 U.S. Dist. LEXIS 181887, 2013 WL
6903784 (N.D. Ohio Dec. 31, 2013). And other courts outside the
circuit have recognized that the Sixth Circuit is the "[o]ne court of
appeals [that] permits a defendant to correct only typographic and
transcription errors." Devon Energy Corp. v. Westacott, 09-1689,
2011 U.S. Dist. LEXIS 30786, 2011 WL 1157334 (S.D. Tex. Mar.
24, 2011).”
James T. Scatuorchio Racing Stable, LLC v. Walmac Stud Mgmt., LLC, No. 5:11-374-DCR,
2014 U.S. Dist. LEXIS 59689, *10-11 (E.D. Ky. April 30, 2014).
This is not to say that there is complete agreement among district courts within the Sixth
Circuit that an errata sheet may not be used for substantive changes to testimony. See, e.g.
Jermano v. Graco Children’s Products, Inc., No. 13-cv-10610, 2015 U.S. Dist. LEXIS 50377,
*5-6 (E.D. Mich. Apr. 16, 2015) (Observing that language in Carter v. Ford Motor Co., 561 F.3d
562, 568 (6th Cir. 2009) suggests that a party might be permitted to make substantive changes
via errata sheet). Even in Kentucky, the prohibition against substantive changes to the testimony
by errata sheet has not always held sway. See Hodak v. Madison Capital Mgmt., LLC, No. 5:07cv-05-JMH, 2008 U.S. Dist. LEXIS 49493, *6-9 (E.D. Ky. June 25, 2008), objection overruled
No. 5:07-cv-05-JMH, 2008 U.S. Dist. LEXIS 63151 (E.D. Ky. Aug. 19, 2008).
However, as the Eastern District of Kentucky did in Scatuorchio, the majority of recent
decisions within the Sixth Circuit consistently interpret Trout as establishing a rule that an errata
sheet may not be used for substantive changes to testimony. See McClendon v. Hightowers
Petroleum Co., No. 1:14-cv-00619, 2016 U.S. Dist. LEXIS 64248, *3-7 (S.D. Ohio May 16,
2016); Jeffries v. Emerson Indus. Automation, No. 14-cv-2430-SHL-tmp, 2015 U.S. Dist.
LEXIS 178980, *2-3 (W.D. Tenn. Aug. 6, 2015); Jones-McNamara v. Holzer Health Sys., Inc.,
No. 2:13-cv-616, 2015 U.S. Dist. LEXIS 4349, *5-7 (S.D. Ohio Jan. 14, 2015); Dentsply Int’l,
5

Inc. v. Tulsa Dental Prod., LLC, No. 2:14-CV-196, 2014 U.S.Dist. LEXIS 181352, *4-5 (E.D.
Tenn. Nov. 18, 2014); Mullins v. Cyranek, No. 1:12CV384, 2014 U.S. Dist. LEXIS 98734, *4-6
(S.D. Ohio July 21, 2014); Clare v. Chrysler Grp., LLC, No. 13-11225, 2014 U.S. Dist. LEXIS
75873, *3-5 (E.D. Mich. June 4, 2014); Taylor v. West Tenn. State Penitentiary, No. 2:11-cv02843-cgc, 2014 U.S. Dist. LEXIS 67878, *3-6 (W.D. Tenn. May 16, 2014).
This approach is appropriately pragmatic. The purpose of a discovery deposition is to
memorialize the testimony of a witness and thus fix the testimony which can be anticipated at
trial. To permit a witness to answer questions during a deposition and thereafter ex post facto
make material changes to that testimony deprives the parties the opportunity to further question
or challenge the witnesses’ testimony and defeats the purpose of the discovery deposition
process.

Ms. Lyon’s changes to the testimony clearly do not relate to typographical or

transcription errors and go to the substance of her testimony. To the extent she wishes to “set the
record straight,” she can do so at trial by explaining that her deposition testimony was in error or
mistaken, but she cannot change that testimony by way of the errata sheet.
IT IS HEREBY ORDERED that Defendants’ motion to strike the errata sheet appended
to the deposition transcript of Stephanie Lyon (DN 110) is GRANTED.

August 2, 2016

Copies to:

Counsel of Record

6