Clare et al v. Chrysler Group LLC

Filing 82

OPINION & ORDER granting defendant's 56 Motion to Strike Errata Sheets. Signed by District Judge Nancy G. Edmunds. (CBet)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Scott Clare, et al.,
Case No. 13-11225
Plaintiffs,
Honorable Nancy G. Edmunds
v.
Chrysler Group, LLC,
Defendant.
/
ORDER AND OPINION GRANTING DEFENDANT’S MOTION TO STRIKE ERRATA
SHEETS [56]
Plaintiffs Scott Clare, Neil Long, and Innovative Truck Storage, Inc., have filed this
patent infringement case against Defendant Chrysler Group, LLC, arguing that Defendant
infringed their patent for hidden pick up truck bed storage. (Dkt. 1.)
Before the Court is Defendant Chrysler Group’s motion to strike Plaintiffs’ errata
sheets. (Dkt. 56.) Defendant argues that Plaintiffs are attempting to materially alter,
through errata sheets, Plaintiffs’ witnesses’ deposition testimony.
On May 28, 2014, the Court heard the parties' oral arguments on this motion. The
Court indicated that it would issue a brief order granting the motion.
The Court has reviewed Plaintiffs' alterations in the deposition testimony that
Defendant contests. The Court has set forth the relevant portions of the depositions below.
As the Court discussed during the hearing, the Court finds that Plaintiffs went too far
in their proposed alterations.
I.

Federal Rule of Civil Procedure 30(e) and the courts' varying views of Rule 30(e)

Federal Rule of Civil Procedure 30(e) contemplates changing a deposition transcript
in "form or substance."1 Courts have placed different burdens on a party attempting to
change a deposition in substance and have different views of Rule 30(e).
“The traditional view is that Rule 30(e) permits a deponent to change deposition
testimony by timely corrections, even if they contradict the original answers, giving
reasons.” Devon Energy Corp. v. Westacott, 09-1689, 2011 WL 1157334, at *4 (S.D.Tex.
Mar. 24, 2011) (citation omitted). “Under this approach, the fact and extent of the change
are treated as subjects for impeachment that may affect a witness’s credibility.” Id. at *5
(quoting “[t]he witness who changes his testimony on a material matter between the giving
of his deposition and his appearance at trial may be impeached by his former answers, and
the cross-examiner and the jury are likely to be keenly interested in the reasons he
changed his testimony. There is no apparent reason why the witness who changes his
mind between the giving of the deposition and its transcription should stand in any better
case.”) (citation omitted). “The changed version does not replace the original testimony,
which remains part of the record on which the witness may be examined and impeached.”
Id. (citation omitted).
The Sixth Circuit has taken a much more restrictive approach. The Sixth Circuit, in an
unpublished decision, stated that it prohibits any type of material alterations to a deposition
transcript and only allows a party to use Rule 30(e) to correct a typographical error. See

1

Federal Rule of Civil Procedure 30(e), Depositions by Oral Testimony:
“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 recording is
available in which (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

Trout v. First Energy Generation Corp., 339 F.App’x 560, 565-66 (6th Cir. 2009) (reviewing
Rule 30(e) and quoting that Rule 30(e) “does not allow one to alter what was said under
oath,” and additionally stated that “a plaintiff may not create a factual issue by filing an
affidavit that contradicts her earlier deposition testimony.” The Sixth Circuit quoted a district
court’s Rule 30(e)’s reasoning–“If [a party could use Rule 30(e) to alter testimony,] 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.”) (citations omitted). Courts in the Eastern District of Michigan have
followed Trout. See

Walker v. 9912 E. Grand River Assocs., 11-12085, 2012 WL

1110005, at *3-4. (E.D.Mich. Apr. 3, 2012) (Cohn, J.) (rejecting the plaintiff’s errata sheet
as an attempt to materially alter deposition testimony and noting that the Sixth Circuit only
permits the use of an errata sheet to correct typographical or transcription errors.); Downing
v. J.C.Penney, Inc., 11-15015, 2012 WL 4358628 (E.D.Mich. Sept. 23, 2012) (Cleland, J).
(stating same.).
The Devon Energy court surveyed other courts around the country. It noted the Sixth
Circuit's very limited approach. It then noted the “sham affidavit” rule, which “allows such
corrections if the deponent can provide a reason showing that the changes were not simply
‘purposeful rewrites tailed to manufacture an issue of material fact.’” Devon Energy, 2011
WL 1157334, at *5 (citations omitted). The court then noted the Seventh and Tenth
Circuits’ form of sham affidavit approach, which allows “the deponent ‘to change his
deposition from what he said to what he meant’ if the change does not directly contradict
the original testimony, despite the fact that there may be ‘a questionable basis’ for the
change.” Id. at *6. But noting that “a change of substance which actually contradicts the
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transcript is impermissible unless it can plausibly be represented as the correction of an
error in transcription, such as dropping a ‘not.’” (citation omitted). The Third Circuit follows
a case specific approach. Id.
II.

The parties' arguments
Defendant argues that Plaintiffs, with their filed errata sheets, are attempting to

materially alter the deposition of Plaintiffs Scott Clare, Neil Long, and Neil Long as the ITS
30(b)(6) witness. (Def.’s Mot. at 5.)
Plaintiffs argue that Defendant did not file its motion until more than two months after
the witnesses submitted their changes and right before this hearing. (Pls.’ Resp. at 1.)
Plaintiffs maintain that the errata sheets “reflect” Plaintiffs’ “conscientious efforts to correct
transcription errors, to clarify indefinite pronouns, and to harmonize – not contradict – their
answers with other answers given during the same depositions. (Id.) (emphasis in original).
(Id.) Plaintiffs additionally argue that Trout is not binding upon the Court and that the Court
should apply the “majority view” of Rule 30(e), which allows changes to the form or
substance of a deposition, without limiting the changes. (Pls.’ Resp. at 2.) Plaintiffs point
to courts in this circuit, but not district, that have applied the broader majority view of Rule
30(e). (Id. at 3.)
III.

Analysis
The Court notes Trout and the cases following from it in this district. But the Court

also finds that Plaintiffs' arguments would fail under the looser approaches as well. With
their proposed changes, as the Court shows below, Plaintiffs are attempting to materially
alter their witnesses' testimony. The Court will not permit such a material alteration.

4

Scott Clare:
Q: Sure. So before your patent filing in

Clarification; consistency with preceding

‘95, you envisioned an alternative to the

testimony at 31:18-35:11.

Old Blue door where you would access
the storage only from the top. Is that
correct?
A: No, I don’t think I ever - - I think I’ve
always envisioned a combination of both.

Change “I think I’ve always envisioned a
combination of both” to “for my
prototypes, I think I’ve always envisioned
a combination of both.”

35:21-22

5

Q: You never envisioned access solely

“

from the top, to your storage idea?
A: Post meaning after ‘95?
Q: Yes, sir.
A. I think I was looking at a combination
of both.

Change “I think I was looking at a
combination of both” to “for a prototype, I
think I was looking at a combination of
both.” 36:11

6

”

Q: So you had two ways to deter theft in

Clarification; consistency with other

your idea?

testimony, e.g. at 47:6-15, 69:12-70:1,

A: Putting it inside the storage

79:4-81:8, 118:24-119:24; 325: 18-

compartment and locking it.

329:17.

Q: Any others?
A. No.
Q: That’s a complete list of your ways of
deterring theft in your idea?
A: Putting it inside the fender and locking
it.

Change “No” to “No, other than blending
the storage in with the pickup truck.”
53:5.
“

Change “Putting it inside the fender and
locking it” to “Putting it inside the fender
and locking it, and blending the storage in
with the pickup truck.” 53:8.

7

”

Q: Do you lay 100 percent of the blame

Clarification, and for consistency with

for the failure of Hide-N-Side to capture

other testimony starting at 259:8.

the market on Airshield?
A: I think they’re - - yes.

Change “yes” to “yes, and on Chrysler.”
255:13
Q: Other than Airshield, is there anyone

“

else that you can think of that would be to
blame for the failure of the Hide-N-Side to
be successful in the marketplace?
A: No.

Change “no” to “no, except to the extent
Chrysler shares some blame.” 258:21

8

”

Neil Long:

Q: During the 1999 to 2000 time frame?

Misspoke

A: No, not at that time.

Change “no, not at that time,” to “no, not
in 1999, but in 2000, the GM StorSide
and Terradyne would have been
competing products.” 118:24
Q: And do you believe that that was an

Clarification; consistency with other

accurate characterization of the problem

testimony at 69:114-16.

that you and Mr. Clare encountered.
A: One of the problems, yes.

Change “one of the problems, yes” to
“one of the problems with that particular
embodiment, yes.” 68:24

9

Q: Did you do that on the exterior of the

Clarification.

truck.
A: We did not, but we did it on the
interior. And if you know trucks, you look
at the inside and you look at the outside.

Change “we did it on the interior” to “we
did it on the interior of the bed, on a panel
visible from some external views.” 76:1516.
Q: Right. So it had nothing to do with

Clarification; misspoke.

patent infringement.
A: Right.

Change “right,” to “right, unless it relates
to willful infringement.”

174:14

10

Q: Do you believe it’s obvious, that

Clarification.

storage?
A: I think I said, if I can see it it’s
obvious.

Change “if I can see it it’s obvious” to “If I
can see it has storage, it’s obvious to me
it has storage.”

181:24-25.

Q: So you will agree with me that the

Clarification.

door to the storage in the RamBox is not
hidden?
A: It’s obvious.
Q: Is the door to the RamBox hidden?
A: It’s obvious. That’s my answer.

Change “It’s obvious” to “it’s obvious to
me.”
IV.

Conclusion
For the above-stated reasons and the reasons enunciated on the record, the Court

GRANTS Defendant's motion to strike the errata sheets.

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So ordered.
s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: June 4, 2014
I hereby certify that a copy of the foregoing document was served upon counsel of record
on June 4, 2014, by electronic and/or ordinary mail.
s/Carol J. Bethel
Case Manager

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