Joan Cravens Construction, Inc. et al v. Deas Construction, Inc. et al

Filing 198

ORDER granting 169 Motion to Strike the Errata Sheet of George Denmark. Signed by Magistrate Judge Michael T. Parker on October 4, 2016. (js)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
JOAN CRAVENS, INC, ET AL.

PLAINTIFFS

v.

CIVIL ACTION NO. 1:15-cv-385-KS-MTP

DEAS CONSTRUCTION INC., ET AL.

DEFENDANTS
ORDER

THIS MATTER is before the Court on the Motion to Strike the Errata Sheet of George
Denmark [169] filed by Defendant Weather Shield Manufacturing, Inc. (“Weather Shield”).
Having considered the parties’ submissions, the record, and the applicable law, the Court finds
that the Motion [169] should be granted.
This action arises from the sale of windows. According to the Amended Complaint [87],
Plaintiff Jason Smith contracted with Plaintiff Joan Cravens, Inc. to construct a home for Smith
and his family. Plaintiffs allege that they purchased Weather Shield Premium Series windows
from Defendants, but Defendants delivered Weather Shield Life Guard Series windows, which
were inadequate and failed to meet building codes and the design specifications. According to
Plaintiffs, these inadequate windows were installed in the Smith home and eventually had to be
replaced at substantial expense to the Plaintiffs.
On May 18, 2016, Defendants deposed George Denmark, an architect involved in the
construction of the Smith home. On June 2, 2016, the court reporter provided Plaintiffs’ counsel
a copy of Denmark’s deposition in order for Denmark to review. On June 27, 2016, Denmark
submitted an errata sheet, proposing to change several answers in his deposition. See Errata
Sheet [169-4]. On September 7, 2016, Defendant Weather Shield filed the instant Motion [169],

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seeking an order from the Court striking Denmark’s errata sheet.1 Defendant argues that the
errata sheet should be stricken because it fails to provide reasons for the proposed changes and,
therefore, does not comply with Fed. R. Civ. P. 30(e)(1)(B).
Rule 30(e) provides as follows:
(1) Review; Statement of Changes. 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:
(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.
Fed. R. Civ. P. 30(e).
The Court finds that Denmark’s proposed changes to his deposition are substantive in
nature. There is substantial disagreement among federal courts as to the scope and nature of
changes permissible under Rule 30(e). The United States Court of Appeals for the Fifth Circuit
has not decided the issue, and the district courts within the Fifth Circuit do not agree. See Walker
v. George Koch Sons, Inc., 2008 WL 4371372, at **2-3 (S.D. Miss. Sept. 18, 2008); Magee v.
Securitas Security Services USA, Inc., 2016 WL 4470762, at *8 (S.D. Miss. August 23, 2016).
“In summary, the rules regarding amendments to deposition testimony via Rule 30(e) are murky,
at best.” Riley v. Ford Motor Co., 2011 WL 3157204, at *3 (S.D. Miss. July 26, 2011).
The “growing minority view,” or “recent trend” is to interpret Rule 30(e) narrowly,
allowing only corrective or non-substantive changes to deposition testimony. See Walker, 2008
WL 4371372, at *2. “A vision animates this school: if a deponent can freely revise their

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On September 7, 2016, Defendant Deas Construction, Inc. joined in the Motion [169].
See Joinder [171].
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testimony afterward, the deposition has become a ‘take home examination,’ and its utility as a
discovery devise wholly forfeited.” United States v. Louisiana, —F.Supp.3d—, 2016 WL
4055648, at *47 (M.D. La. July 26, 2016).
The majority view or approach, however, “accords a plain meaning approach or literal
interpretation to Rule 30 and, consequently, allows any change in form or substance regardless
of whether convincing explanations support the change.” Betts v. Gen’l Motors Corp., 2008 WL
2789524, at *2 (N.D. Miss. July 16, 2008). Obviously, allowing a deponent to rewrite portions
of his deposition may lead to troubling situations. Thus, courts that take this approach usually
adopt remedial measures to limit the potential for abuse. Such measures include reopening the
deposition for limited purposes, requiring the deponent to pay the costs of reopening his
deposition, and ordering that the original and changed answers, as well as the reasons for the
changes, remain in the record and may be used during summary judgment and/or trial. Walker,
2008 WL 4371372, at *3.
As previously mentioned, the Fifth Circuit has not decided this issue, but it has stated that
it “do[es] not necessarily disagree” that a deponent can make substantive changes to his
deposition. Gonzalez v. Fresenius Med. Case N. Am., 689 F.3d 470, 480 (5th Cir. 2012).
Furthermore, courts within this district, including this Court, have followed the majority
approach and allowed substantive changes to the content of a deposition. See Riley, 2011 WL
3157204, at **3-4 (“The consensus view in this state appears to be that errata sheets may be used
to make substantive changes to deposition testimony, if the opposing party is granted the benefit
of certain remedial measures.”).
Defendant does not argue that the law prohibits Denmark from making substantive

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changes to his deposition, but argues that Denmark is prohibited from making substantive
changes without sufficient explanation. As previously mentioned, Rule 30(e) provides that “if
there are 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) (emphasis added). The Fifth
Circuit has stated that strict compliance with Rule 30(e) is required. Reed v. Hernandez, 114 Fed.
App’x. 609, 611 (5th Cir. 2004) (“Rule 30(e) does not provide any exceptions to its
requirements.”). Additionally, this Court has ruled that deponents making substantive changes
to their depositions must provide sufficient explanations for the changes. See Riley, 2011 WL
3157204, at **3-4; Magee, 2016 WL 4470762, at *6 (“The Fifth Circuit requires strict adherence
to the procedural requirement of Rule 30(e), one of which is the requirement that the deponent
provide reasons for each change she makes to the testimony.”).
In their Response [180], Plaintiffs argue that Denmark’s errata sheet sufficiently sets
forth the reasons for his changes. In the errata sheet, most of the proposed changes begin with
the following phrase: “Should be corrected to state as follows.” See [169-4].2 Courts in this
district, however, have held that the reasons for changes cannot be conclusory. See Riley, 2011
WL 3157204, at *4 (“The federal courts in this state require more than conclusory, one-word
‘reasons’ for compliance with Rule 30(e).”); Crawford v. Mare Mortgage, LLC, 2006 WL
1892072, at *1 (S.D. Miss. July 10, 2006) (holding that the reasons provided for substantive
changes–either “correction” or “clarification”–were inadequate); Seahorn Investments, LLC v.

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Of the fifteen changes proposed on Denmark’s errata sheet, twelve of them begin with
the phrase “[s]hould be corrected to state as follows.” The Court will discuss the sufficiency of
this “reason.” The remaining three changes begin with one of the following three words: “Add,”
“Delete,” or “Replace.” See [169-4]. These words are commands, not reasons for the changes
and certainly not sufficient reasons for the changes.
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Federal Insurance Company, 2015 WL 11004898, at *2 (S.D. Miss. August 28, 2015) (holding
that “clarification” was an insufficient explanation).
Plaintiffs cite to a single case, Guice v. State Farm Mut. Ins. Co., No. 1:06-cv-1-LTSRHW, Order [351] (S.D. Miss. April 4, 2007), in which a court declined to strike an errata sheet
under apparently similar circumstances. However, the ruling in Guice is a brief order, not an
opinion with legal analysis providing insight into the court’s reasoning, and appears contrary to
other rulings in this district. This Court finds that “[t]he term ‘reason’ should be interpreted in
its most common sense meaning: a statement explaining the deponents’ reasons for making the
change.” Betts, 2008 WL 2789524, at *2. The errata sheet provided by Denmark does not
contain reasons for making changes to the deposition. Thus, the errata sheet does not comport
with the requirements of Rule 30(e).
Plaintiffs also provide a declaration by Denmark explaining his reasons for the changes
to his deposition. Plaintiffs request that the Court accept this declaration as a supplement to
Denmark’s errata sheet or, alternatively, allow Denmark to submit a new errata sheet reflecting
the representations in the declaration. As previously discussed, however, strict compliance with
Rule 30(e) is required,3 and Rule 30(e) requires a deponent to provide the changes and the
reasons for making them within thirty days of being notified that the transcript is available.
In Betts, the United States District Court for the Northern District of Mississippi was
faced with a situation where a defendant moved to strike changes made to the plaintiffs’ expert’s
deposition because the expert failed to provide sufficient reasons for the changes and, in turn, the
plaintiffs moved for leave to submit an amended errata sheet for the expert. 2008 WL 2789524,

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See Reed, 114 Fed. App’x. at 611.
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*1. That court held that the expert’s failure to incorporate his reasons for the proposed changes
in his errata sheet should result in the exclusion of those changes from his deposition. Id. at **12. Turning to the plaintiffs’ motion for leave to submit an amended errata sheet, that court stated
that “[t]he Fifth Circuit’s emphasis on the importance of following the rule’s explicit instructions
on the thirty-day time period clearly carries to the requirement that a deponent provide reasons
for any proposed changes or corrections to a deposition.” Id. at *2. Thus, that court denied the
plaintiffs’ motion for leave to submit an amended errata sheet and granted the defendant’s
motion to strike the proposed deposition changes. Id.
This Court agrees with other courts which have held that “[t]here are no exceptions
provided in Rule 30(e) to the thirty-day time frame for making changes to deposition testimony.”
See In re Kugel Mesh Hernia Repair Patch Litigation, 2010 WL 678092, at *1(D. R.I. Feb. 24,
2010); see also United Subcontractors, Inc. v. Darsey, 2013 WL 5927946 (M.D. Fla. Nov. 5,
2013) (striking defendant’s errata sheet because it did not provide any reasons for the proposed
changes and holding that the defendant should not be allowed to file a supplemental errata sheet
which provided reasons for the proposed changes outside the thirty-day time period provided by
Rule 30(e)). A deponent who wishes to utilize the privilege of Rule 30(e) must strictly comply
with the Rule’s requirements.
IT IS, THEREFORE, ORDERED that Defendant Weather Shield Manufacturing, Inc.’s
Motion to Strike the Errata Sheet of George Denmark [169] is GRANTED.
SO ORDERED, this the 4th day of October, 2016.
s/ Michael T. Parker
United States Magistrate Judge

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