Ashcraft v. Welk Resort Group, Corp. et al

Filing 91

ORDER. IT IS HEREBY ORDERED that 68 Experian's objections are OVERRULED and 64 Judge Koppe's order striking Experian's Rule 30(e) changes is AFFIRMED. Signed by Judge Jennifer A. Dorsey on 7/24/2018. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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John E. Ashcraft,

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Case No.: 2:16-cv-02978-JAD-NJK

Plaintiff,

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Order Affirming Magistrate Judge’s Order
Striking FRCP 30(e) Changes

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v.

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Welk Resort Group Corp., et al.,

[ECF No. 68]

Defendants

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After defendant Experian Solutions, Inc.’s FRCP 30(b)(6) designee in this Fair Credit

10 Reporting Act case gave plaintiff-favorable testimony at her deposition, Experian submitted an
11 FRCP 30(e) errata revising, replacing, and deleting it, claiming that post-deposition investigation
12 revealed that her sworn answers were wrong. The plaintiff moved to strike that errata, and
13 Magistrate Judge Nancy Koppe granted the motion, relying on the Ninth Circuit’s opinion in
14 Hambleton Brothers Lumber Company v. Balkin Enterprises, Inc.1 Experian objects, arguing
15 that Hambleton merely precludes parties from changing deposition testimony during summary
16 judgment to manufacture an issue of fact.2 But because Hambleton more broadly “hold[s] that
17 Rule 30(e) is to be used for corrective, and not contradictory, changes,” I find that Judge
18 Koppe’s order is consistent with Ninth Circuit law, affirm it, and overrule Experian’s objection.
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Discussion
Experian’s objection is a legal one.3 It contends that Judge Koppe’s ruling is clearly

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21 erroneous and contrary to law because it stretches the Ninth Circuit panel’s opinion in
22 Hambleton beyond its intended reach: sham changes during summary judgment designed to
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ECF No. 64 (citing Hambleton Bros. Lumber Co. v. Balkin Enter., Inc., 397 F.3d 1217 (9th Cir.
2005)).
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25 ECF No. 68.
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The
are familiar with the
that underlie the motion to strike, Judge
26 out in partiesin her order, see ECF facts64, and they are not materially in dispute;Koppe laid them
detail
No.
so I do not
reiterate them here. I review Judge Koppe’s legal conclusions de novo. See 28 U.S.C. §
27 636(b)(1)(A); Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust, 508 U.S.
28 602, 623 (1993).

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1 create issues of fact. “It is dubious,” Experian contends, “that the reasoning of Hambleton even
2 extends beyond the situation where a summary judgment motion is pending.”4 “Had Hambleton
3 intended to adopt a ‘sharp restriction’ against all contradictory changes—whether sham or not—
4 ‘it would have said so and would not have discussed the sham affidavit rule in the detail and
5 manner that it did.’”5
But the Hambleton court did say so. Its statement that “Rule 30(e) is to be used for

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7 corrective, and not contradictory, changes” is not mere dicta, it is an express holding. After
8 string-citing out-of-circuit recognitions that “a change of substance [that] actually contradicts the
9 transcript is impermissible unless it can plausibly be represented as the correction of an error in
10 transcription,”6 and that “[t]he Rule cannot be interpreted to allow one to alter what was said
11 under oath” for “a deposition is not a take home examination,”7 the Hambleton court concluded,
12 “We agree with our sister circuits’ interpretation of FRCP 30(e) on this point, and hold that Rule
13 30(e) is to be used for corrective, and not contradictory, changes.”8
Whether Experian is choosing to ignore this broader principle in Hambleton or just has a

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15 blind spot for it, Hambleton’s significance here is actually twofold: it extended the sham16 affidavit rule to Rule 30(e) changes and put the Ninth Circuit in union with circuits that had
17 already recognized that Rule 30(e) is a vehicle to ensure a verbatim transcript of sworn answers,
18 not to permit a post hoc rewrite of those answers by or with counsel. “Depositions differ from
19 interrogatories in that regard,” and “[i]f that were the case, one could merely answer the
20 questions with no thought at all then return home and plan artful responses.”9 Judge Koppe’s
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ECF No. 68 at 9.

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Id. at 11 (citations omitted).

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Hambleton, 397 F.3d at 1225 (quoting Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383,
389 (7th Cir. 2000)).
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Id. (quoting Garcia v.
299 F.3d 1233, 1242 n.5
25 Greenway v. Int’l PaperPueblo Country Club, 325 (W. D. La. 1992)). (10th Cir. 2002) (quoting
Co., 144 F.R.D. 322,
26 8 Id. at 1225–26 (emphasis added).
Id. at 1225 (quoting Garcia, 299 F.3d at 1242 n.5 (quoting Greenway, 144 F.R.D. 322, 325 (W.
D. La. 1992)).
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1 ruling properly recognizes this undeniable aspect of Hambleton’s holding and the limits that the
2 Ninth Circuit has placed on Rule 30(e) changes.
Conclusion

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Accordingly, IT IS HEREBY ORDERED that Experian’s objections [ECF Nos. 68] are

5 OVERRULED and Judge Koppe’s order striking Experian’s Rule 30(e) changes [ECF No. 64]
6 is AFFIRMED.
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Dated: July 24, 2018
_______________________________
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_ _ _ _ _
U.S. District Judge Jennifer A. Dorsey
ct Judge Jennifer
Judg
nn
nnif

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