Walker et al v. Apex Wind Construction LLC et al

Filing 153

ORDER granting 127 Motion to Strike Certain Errata Sheets. Signed by Honorable Timothy D. DeGiusti on 8/29/2016. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
TERRA WALKER, et al.,

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Plaintiffs,
v.
KINGFISHER WIND, LLC,
Defendant.

Case No. CIV-14-914-D

ORDER
This matter is before the Court on Defendant’s Motion to Strike Errata
Sheets to the depositions of Plaintiffs Cindy Shelley, Julie Harris, and Elise
Kochenower [Doc. No. 127]. Defendant contends that a significant number of the
errata entries contain substantial and material changes to the depositions and
should therefore be stricken as outside the scope of Fed. R. Civ. P. 30(e). Mot. to
Strike at 2. Plaintiffs have filed their response in opposition [Doc. No. 144]. The
matter is fully briefed and at issue.
BACKGROUND
Following the depositions of Plaintiffs Cindy Shelley, Julie Harris, and Elise
Kochenower, the court reporters sent jurat and errata pages for each deposition to
Plaintiffs’ counsel. Each witness returned her respective errata sheet, which
contain a total of 33 changes to the deposition testimony. Defendant contends that,
when viewed in light of its pending motions for summary judgment, at least 12 of

the changes materially alter Plaintiffs’ prior deposition testimony and should be
stricken. Defendant alternatively contends the changes are procedurally defective
because Plaintiffs do not provide any stated reasons for the alterations. In response,
Plaintiffs contend that the errata entries are not material to the issues in
Defendants’ motions, and the issue of the materiality of the corrections is not ripe
before the Court, as the parties did not meet and confer with respect to Defendant’s
objections.
STANDARD OF DECISION
Rule 30(e) allows deposition corrections under the following circumstances:
(e)

Review by the Witness; Changes.
(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)(1). Despite the seemingly broad, permissive language
regarding a deponent’s right to amend testimony, case law actually instructs that
limits exist as to what changes are permissible. In the Tenth Circuit, if a change is
material, which is defined as one that bears on an essential element of a claim or
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defense,1 whether it is permitted under Rule 30(e) is determined by examining the
following factors, known as “the Burns rule”: (1) whether the deponent was crossexamined at the deposition; (2) whether the corrections were based on newly
discovered evidence; and (3) whether the deponent’s deposition testimony reflects
obvious confusion, as opposed to indecisiveness or inconsistency, which
necessitates a correction to clarify. See Burns v. Bd. of County Comm’rs of Jackson
County, 330 F.3d 1275, 1282 (10th Cir. 2003). The following oft-repeated passage
from a case in the Western District of Louisiana provides a concise statement of
the purpose and scope of Rule 30(e):
The purpose of Rule 30(e) is obvious. Should the reporter make a
substantive error, i.e., he reported “yes” but I said “no,” or a formal
error, i.e., he reported the name to be “Lawrence Smith” but the
proper name is “Laurence Smith,” then corrections by the deponent
would be in order. The Rule cannot be interpreted to allow one to alter
what was said under oath. If that were the case, 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.
Garcia v. Pueblo Country Club, 299 F.3d 1233, 1242 n. 5 (10th Cir. 2002)
(quoting Greenway v. Int’l Paper Co., 144 F.R.D. 322, 325 (W.D. La. 1992)); see
also Summerhouse, 216 F.R.D at 507 (“Although these statements [in Greenway]
were admittedly dictum when spoken, they have since been elevated and
incorporated into the law of this circuit.”). Accordingly, applying the Tenth

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Summerhouse v. HCA Health Servs. of Kan., 216 F.R.D. 502, 507 (D. Kan. 2003).
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Circuit’s Rule 30(e) analysis set forth in Burns requires a two-step process. The
Court must first decide if the challenged deposition corrections materially alter the
deposition testimony. If the changes are material, the Court must then determine
whether the foregoing analysis permits use of the altered testimony. Fullbright v.
State Farm Mut. Auto Ins. Co., No. CIV-09-297-D, 2010 WL 455179, at *2 (W.D.
Okla. Feb. 2, 2010).
DISCUSSION
The Court has carefully reviewed the parties’ submissions – particularly
Defendant’s pending motions for summary judgment. Based on its review of the
record, the Court finds that, although immaterial to the disposition of Defendant’s
pending motions, the amendments should nonetheless be stricken because
Plaintiffs have not provided any reasons for the alterations in question, as
mandated by Rule 30(e). The errata sheets at issue do not enumerate items that
were incorrectly transcribed by the Court reporter. There is no argument that the
corrections at issue were based on newly discovered evidence. Further, there are no
assertions of confusion on behalf of the deponents such as would necessitate
clarification. Accordingly, the Court finds Defendant’s Motion to Strike should be
granted. However, the Court further finds Plaintiffs’ alternative request to file
explanations for their changes is granted, and Plaintiffs are hereby allowed to
submit revised errata sheets to Defendant and the involved court reporter within
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seven (7) days of the date of this order. In the event Defendant believes that the
revised errata sheets are reasonably subject to further objection, it may request
appropriate relief from the Court.
CONCLUSION
Defendant’s Motion to Strike Certain Errata Sheets is GRANTED as set
forth herein.
IT IS SO ORDERED this 29th day of August, 2016.

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