Macy v. Waterford Operations, LLC
Opinion and Order regarding Motion to Strike Deposition Correction Sheet 36 . For the reasons set forth in this document, the Motion to Strike 36 is granted in part and denied in part. Ordered and Signed on 11/27/2017 by Magistrate Judge Mark D. Clarke. (rsm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Case No. 1:16-cv-01675-CL
OPINION AND ORDER
WATERFORD OPERATIONS, LLC,
and AV AMERE HEALTH SERVICES, LLC,
CLARKE, Magistrate Judge.
Plaintiff William Macy brings this cause of action against the defendants, Waterford
Operations, LLC, and Avamere Health Services, LLC, for employment related claims under the
Family Medical Leave Act, Oregon Family Leave Act, Oregon wage laws, and the Fair Labor
Standards Act. The case comes before the Court on the defendants' Motion to Strike (#36). For
the reasons below, the defendants' motion is GRANTED IN PART and DENIED IN PART.
Rule 30(e), which governs changes to deposition transcripts, provides:
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).
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In addition to the procedural requirements of Rule 30(e), the Ninth Circuit extends the
"sham affidavit" rule to deposition corrections, holding that Rule 30( e) deposition corrections
cannot be used to create an issue of fact by contradicting prior deposition testimony. Hambleton
Bros. Lumber Co. v. Balkin Enters., Inc., 397 F.3d 1217, 1225 (9th Cir. 2005). While the
language of FRCP 30(e) permits corrections "in form or substance," this permission "does not
properly include changes offered solely to create a material factual dispute in a tactical attempt to
evade an unfavorable summary judgment." Id. "Rule 30(e) is to be used for corrective, and not
contradictory, changes." Id. at 1226.
Defendants move the court for an order striking Plaintiffs corrections to Plaintiffs
deposition testimony for the following three reasons: ( 1) Plaintiff failed to request to review his
deposition transcript before completion of his deposition as required by FRCP 30(e); (2) Plaintiff
failed to submit his corrections within the thirty-day review and correction period as required by
FRCP 30(e); and, (3) Plaintiffs corrections are a sham. Because the Court finds that one of the
corrections is moot, and two of the corrections are a sham, the motion is granted in part and
denied in part. Therefore, the Court need not address whether the procedural requirements of
Rule 30(e) are met.
In order to accept an alteration or correction of deposition testimony, the court must be
persuaded that the changes had a legitimate basis, i.e., the testimony required clarification, the
deponent genuinely misunderstood the question, or the deponent gained access to new evidence
containing material facts. See Kennedy v. Allied Mut. Ins. Co., 952 F .2d 262, 266 (9th Cir.1991)
(quoting Miller v. A.H. Robins Co., 766 F.2d 1102, 1104 (7th Cir .1985)).
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Judges in this district have applied this standard to assess the legitimacy of corrected
testimony. In B.JG. v. Society of the Holy Child Jesus, Civ.No. 07-541-HA, 2008 WL 896061
(D.Or. Mar.28, 2008), the plaintiff alleged sexual abuse by nuns more than forty years prior to
filing her claim in federal court. Whether the plaintiffs claims were time-barred was dependent
on the time at which she became aware that she had suffered legally cognizable harm. The
plaintiff submitted a corrected deposition and the defendants moved to strike "plaintiffs
amended and 'corrected' answers to her deposition, which alter[ ed] plaintiffs testimony
regarding when she knew of the impact upon her from the nuns' alleged abuse ... " Id. at *2. In
her deposition, the plaintiff testified that "she actually knew that what she [said] the sisters did to
her had contributed to her bouts of depression long before she finally filed her complaint." Id. at
*6. The plaintiff, by way of a corrected deposition, attempted to alter this testimony and assert
that she "[did] not know when she became cognizant that the alleged abuse at issue contributed
to her depression .... " Id. Plaintiffs counsel argued that the corrections were necessary because
''plaintiff was pressured for answers that she was unsure of at her deposition and that when
pushed, plaintiff was compelled to guess." Id. Judge Haggerty concluded that this allegation was
not supported by the record and, therefore, the changes made to the transcript were unjustified.
Accordingly, the motion to strike was granted.
By contrast, in another decision also in this district, Judge Papak denied the plaintiffs'
motion to strike declaration statements based on alleged inconsistencies with deposition
testimony. The testimony in question dealt with whether the parties were in compliance with an
organizational rule. The court determined that, although the deponent "was less well prepared for
his deposition than he would have been under ideal circumstances, and therefore could give no
definitive response as to the two plaintiff organizations' current compliance with the Program
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Integrity Rule, such ill-preparedness [was] not a basis for granting the motion to strike." Legal
Aid Servs. of Oregon v. Legal Servs. Corp., 2008 WL 939185 (D.Or. Apr. 7, 2008). Further,
·'[b]eyond [the deponent's] inability to answer questions regarding current compliance,
comparison of the relevant portions of his deposition testimony and the complained of
paragraphs of his declaration reveal[ed] no contradiction." Id. at *44.
Defendant raises objections to three different corrections of Plaintiffs deposition. First,
Plaintiff was asked whether or not he reviewed documents or notes to prepare for his deposition.
He answered that he had. In answering further questions regarding those notes, Plaintiff stated
that 95% of them had been generated prior to his termination, and 5% had been generated after
termination. Macy Depo. 16. Plaintiff now seeks to amend his answer to state that he prepared
60% of his notes were created prior to his termination, and 40% were created after his
termination. He states that all of the notes in question were created for the purpose of contacting
an attorney because he believed he was being retaliated against for his FMLA leave, and he
states that he incorrectly estimated the percentage of notes made pre- and post-termination. The
Court finds that this is a minor discrepancy resulting from an incorrect estimation on the part of
the Plaintiff and not directly contradictory to his original testimony and does not substantively
change any material fact of the case. Additionally, it appears that all of these notes have been
produced in discovery, and thus the issue of attorney-client privilege regarding the notes is moot.
Therefore, the Court finds that this correction should not be stricken.
Second, Plaintiff stated in his deposition that on July 30th there was a 60-day action plan
put in place. When asked, "Is that the date you believe that you were first being set up to be
terminated?" Plaintiff answered, "I believe so." Macy Depo 20. When asked about the motives
for his being set up and "singled out to be terminated," Plaintiff stated, "In my mind, I felt like it
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was a fiscal decision." Macy Depo. 21. Plaintiff now seeks to amend his answer to state that he
believes he was placed on a performance plan and then terminated from his position as Director
because he was being retaliated against for his FMLA leave, and his employer chose not to hire a
new person to fill the Director position after his termination for financial reasons. At first blush.
this correction appears to be directly contradictory to his deposition testimony, and, because the
subject is a material part of the case, the specter of a ·'sham" correction is certainly raised.
However, based on other answers given throughout his deposition testimony, Plaintiffs
proposed correction makes some sense in the context of his prior answers. Nevertheless, a
deposition correction should not be used to substantively bolster or change answers that were
poorly phrased. As other courts have stated, a deposition is not a take-home exam. See, e.g.,
Garcia v. Pueblo Country Club, 299 F.3d 1233, 1242 n. 5 (10th Cir.2002) ("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.") Plaintiff may argue the context of his answer at summary judgment or trial, but
he may not simply "correct" his deposition to state a substantively different answer than the one
he gave. This correction should be stricken.
Third, after confirming that his family leave notification was given on August 18th, 18
days after his 60-day action plan was put into place, Plaintiff was asked whether the 60-day
action plan would still be occurring during his leave. He answered, "Yes." Macy Depo. 63. He
was then asked whether he delegated to anyone "to continue to work on any aspects of the plan?"
He answered, "Some duties." For instance, he stated that his office manager would be delegated
duties, and two instructors "knew that I obviously would be off, and that their responsibilities
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were to continue to teach classes ... and to focus on member retention, and also to encourage
through good practices, more members coming in to look at the club with the possibility of
membership." Macy Depo. 64. Plaintiff stated that these delegations were verbal, not written. Id.
There are several other instances of similar answers given by the Plaintiff regarding delegating
certain objectives to other employees during his leave. Plaintiff now seeks to amend his answer
to state: "I am uncertain if I correctly understood the question asked. My understanding about
the 60-day plan in question was that the plan's timelines would be suspended while I was on
FMLA leave until I returned fully to work and was fully restored in my position and
responsibilities as Director." Once again, this correction appears to be directly contradictory to
his deposition testimony, but Plaintiffs proposed correction makes some sense in the context of
his prior answers. It is possible that he believed the actual 60-day action plan as it pertained to
his performance would be suspended during his leave, but that he nevertheless delegated some of
the responsibilities under the plan to other employees to continue attempting to improve the
facility's financial outlook. In that way, the plan would "still be occurring" in the operational
sense, but not in regards to his own performance evaluation. Once again, however, Plaintiff may
make this argument at summary judgment or at trial based on the context of his testimony as a
whole, but he may not simply "correct" his deposition to state a substantively different answer
than the one he gave. This con-ection should be stricken.
For the reasons above, the motion to strike (#36) is granted i
IT IS SO ORDERED AND DA TED this
United States Magistrate Judge
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denied in part.
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