United States of America et al v. Laboratory Corporation of America Holdings
ORDER AND OPINION Relators' motion to strike LabCorp's errata of Tiana Ayotte's deposition testimony (Dkt. No. 333 ) is GRANTED. AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 6/7/2021.(sshe, )
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
United States of America, et al., ex rel.
Scarlett Lutz and Kayla Webster,
Laboratory Corporation of America
C/A No. 9:14-3699-RMG
ORDER AND OPINION
Before the Court is Relators’ motion to strike Laboratory Corporation of America
Holdings’ (“LabCorp”) errata of Tiana Ayotte’s deposition testimony. (Dkt. No. 333.) LabCorp
responded in opposition and Relators replied. (Dkt. Nos. 345, 356.) For the reasons set forth
below, Relators’ motion is granted.
This is a qui tam action in which the United States of America declined to intervene.
Relators allege that LabCorp violated the False Claims Act and Anti-Kickback Statute by
submitting false claims to Government healthcare programs relating to blood draw services for
tests referred by physicians to third-parties Health Diagnostic Laboratory (“HDL”) and Singulex,
Inc., which LabCorp knew were paying illegal inducements to the referring physicians. (Dkt. No.
Rule 30 of the Federal Rules of Civil Procedure governs oral depositions and provides
that “the deponent must be allowed 30 days after being notified by the officer that the transcript
or recording is available in which to review the transcript or recording; and 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).
“There are two basic approaches reflected in the decisional law.” Gilliam v. ValmontColumbia Galvanizing, Inc., No. 3:13-1575-CMC, 2015 WL 4429350, at *2 (D.S.C. July 20,
2015). The first line of authority interprets Rule 30(e) broadly, to allow the deponent to make
any changes as long as the changes strictly conform to the procedural requirements of the Rule.
Under this approach, if the procedural requirements of the Rule are met, any substantive change
will be deemed permissible, even if it creates inconsistences or directly contradict prior
testimony. In these instances, changes are not limited to transcription errors; however, both
versions of the testimony remain in evidence and the court may also order the deposition
reopened to allow further examination about the alterations. See e.g., Podell v. Citicorp Diners
Club, 112 F.3d 98, 103 (2d Cir. 1997); Gilliam, 2015 WL 4429350, at *2; Foutz v. Town of
Vinton, Virginia, 211 F.R.D. 293, 295 (W.D. Va. 2002).
The second line of authority interprets Rule 30(e) strictly, allowing only the correction of
demonstrated errors made by the court reporter, whether in form or in substance. See, e.g.,
Garcia Pueblo Cntry. Club, 299 F.3d 1233, 1242 n.5 (10th Cir. 2002) (“We are dismayed with
PCC’s reliance upon errata from deposition testimony where that errata strayed substantively
from the original testimony.”); Greenway v. Int’l Paper Co., 144 F.R.D. 322, 325 (W.D. La.
1992) (suppressing deponent’s attempt to rewrite material answers given in deposition); S.E.C. v.
Parkersburg Wireless, L.L.C., 156 F.R.D. 529, 535 (D.D.C. 1994) (noting modern trend in which
courts do not allow a party “to make any substantive change she so desires” to her deposition
testimony); Rios v. Bigler, 847 F.Supp. 1538, 1546-47 (D. Kan. 1994) (stating the court will
consider only those changes that clarify, rather than materially alter, the deposition testimony).
Under this interpretation, courts “do not condone counsel’s allowing for material changes to
deposition testimony and certainly do not approve of the use of such altered testimony that is
controverted by the original testimony.” Garcia, 299 F.3d at 1242 n.5. That is because a
“‘deposition is not a take home examination.’” Sinclair Wyoming Refining Co. v. A & B
Builders, Ltd., 989 F.3d 747, 784 n.32 (10th Cir. 2012) (quoting Greenway, 144 F.R.D. at 325).
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 an
artful response. Depositions differ from interrogatories in that regard.
There is no controlling authority from the Court of Appeals for the Fourth Circuit.
Several district courts in the Fourth Circuit take the position that the “purpose of an errata sheet
is to correct alleged inaccuracies in what the deponent said at his deposition, not to modify what
he wishes that he had said.” Touchcom, Inc. v. Bereskin & Parr, 790 F. Supp. 2d 435, 465
(E.D.Va. 2011); but see, e.g., Columbia Gas Transmision, LLC v. Haas, No. TDC-17-1147, 2018
WL 10798530, at *3 (D. Md. Mar. 16, 2018) (finding an errata sheet is “not at odds [with] the
intent of the rules”); Harmon v. United States, No. PX-15-2611, 2017 WL 4098742, at *5 n.4 (D.
Md. Sept. 15, 2017) (noting that record on cross-motions for partial summary judgment reflected
deponent “clarified on her errata sheet: ‘I misunderstood the question . . .’”). These courts find
that transcriptional or typographical errors are the only types of corrections permitted under Rule
30(e), foreclosing substantive changes to what was said in a deposition unless it is shown to be
necessary to correct a court reporter’s error. See, e.g., Ashmore for Wilson v. Sullivan, No. 8:15-
cv-0563-JMC, 2018 WL 507792, at *2 (D.S.C. Jan. 23, 2018) (“The Court will not allow the
requested substantive changes to be made because they are purported to be based on unfavorable
deposition testimony.”); E.I. Dupont de Nemours & Co. v. Kolon Indus., Inc., 277 F.R.D. 286,
297 (E.D.Va. 2011) (noting that “the errata process . . . [cannot] be used to allow post-deposition
revision of testimony to conform a witness’ testimony to enhance a party’s case”); Lee v. Zom
Clarendon, L.P., 689 F. Supp. 2d 814, 819 (E.D. Va. 2010) (“Altering deposition testimony in
this manner is not a permissible use of errata sheets.”); Wyeth v. Lupin Ltd., 252 F.R.D. 295,
296-97 (D.Md. 2008) (noting that because “a deposition is not a take home exam” the deponent
“cannot change testimony in a material way, simply because on review, it does not like the
answer as given”); Barlow v. Esselte Pendaflex Corp. Meto Div., 111 F.R.D. 404, 406 (M.D.N.C.
1986) (finding it “at variance with the letter and spirit of Rule 30(e)” when “changing ‘yes’ to
‘no’ and vice versa, etc.”). Indeed, courts inside and outside the Fourth Circuit take this position
because “the purpose of a deposition is to memorialize testimony . . . before the recollection of
events fade or it has been altered by . . . helpful suggestions of lawyers.” Kolon Indus., 277
F.R.D. at 297 (quoting Hall v. Clifton Precision, 150 F.R.D. 525, 528 (E.D. Pa. 1993)).
This dispute arises from Relators’ deposition of Tiana Ayotte, LabCorp’s vice president
and assistant general counsel in corporate compliance and regulatory affairs from 2010 to 2015.
Following Ayotte’s deposition in November 2020, LabCorp notified Relators that it intended to
file a motion for a protective order if Relators did not withdraw certain questions purported to
solicit attorney-client privileged information. LabCorp ultimately did not file that motion, which
constituted a waiver of the objection. Local Rule D.S.C. 30.03(C). Instead, LabCorp provided an
errata that Relators here argue impermissibly materially alters the substance of Ayotte’s
Relators make much argument out of their suspicion that LabCorp is seeking to
materially alter Ayotte’s testimony via errata because it abandoned its prior effort to cloak her
testimony in attorney-client privilege. LabCorp, similarly, focuses on whether and when Ayotte
realized she purportedly misunderstood the questioning. There is no subjective element to the
Rule 30(e) analysis, although courts in the Fourth Circuit have considered whether “the manner [
] of changes discloses a lack of good faith.” Barlow, 111 F.R.D. at 406.
Instead, and without
explicit guidance from the Fourth Circuit, the Court’s task is to determine, from the face of the
errata, whether the changes are transcriptional and typographical or substantive. The Court finds
the change are clearly substantive and, therefore, prohibited under the interpretation of Rule
30(e) widely followed in this Circuit.
Ayotte’s deposition testimony, with the errata changes delineated in bold, are as follows:
Counsel for Relators:
Counsel for LabCorp:
Will object to the form and the same instruction as
before, to the extent you can answer without
communications, I will allow you to answer the
Counsel for Relators:
Counsel for LabCorp:
Set aside the e-mail string. I’m asking you does the
fact that LabCorp knew physicians ordering the
HDL test were being paid every time they order the
test change your analysis as to whether it was a,
quote, unquote, courtesy drawing?
Same instruction as before. You may answer the
question only insofar as you do not divulge any of
the legal advice you may have provided to anyone
at LabCorp or the communications that anyone had
Speaking objections are prohibited in this District. Local Rule 30.03(D) D.S.C.
with you at LabCorp, but if you can answer as you
sit here today without divulging any of those
attorney/client communications, you may answer
Upon advice of counsel, I cannot answer that
question as it calls for attorney/client privilege
information. [It would still be a courtesy draw
because it still would be for the courtesy of the
patient, regardless of whether the doctor
afterwards gets paid.]
(Dkt. No. 333 at 7-8.)
There is, perhaps, no starker an example of changing testimony in a material way
“because, on review, [the deponent] does not like the answer as given” than turning “Yes” into
“No.” Wyeth v. Lupin Ltd., 252 F.R.D. at 296-97. LabCorp responds that Ayotte misunderstood
Relators’ counsel to be asking if the payments changed “LabCorp’s practices” rather than “your
analysis,” as evidenced by her seeking to also revise the follow-up explanatory answer. (Dkt. No.
345 at 2, 6.) LabCorp seeks the broader interpretation of Rule 30(e), as has in one particular
instance been applied by the District Court for the District of South Carolina in Gilliam v.
Valmont-Columbia Galvanizing, Inc. In that case, the defendant sought to change a “No” answer
on the basis that it was “misleading based on his subsequent deposition testimony and the case
evidence.” 2015 WL 4429350, at *4. Because such subsequent contradictory testimony existed
in that case, the Gilliam court “assume[d] for purposes of this matter that a broader reading of the
Rule is appropriate,” but guarded the broadside by also holding that “both the original testimony
and the errata sheet shall remain in the record, thus subjecting both the testimony and errata sheet
to evaluation either at summary judgment or at trial with respect to the contradictory testimony.”
Id. LabCorp contends that, at Ayotte’s second deposition, Relators represented they would, but
never did, question her about the reason for the errata; instead, Relators questioned her on the
timeline and process of the errata. LabCorp appears to ask the Court to infer from this that there
is no subsequent contradictory testimony because, even though she sat for the deposition, she
was never squarely asked the question or was only inartfully asked corollary questions. (Dkt. No.
345-3 at 10-11.) The Court declines to extend the Gilliam court’s reading of Rule 30(e) even
further to hold that the absence of intended-but-not-given subsequent contradictory testimony
warrants keeping both the testimony and errata in the record. Instead, for purposes of this
matter, the Court applies the interpretation of Rule 30(e) largely embraced by courts within the
Fourth Circuit. See Sinclair Wyoming Refining Co., 989 F.3d at (inquiring whether errata’s
changes “raise concern that the witness is trying to create a sham issue of fact”).
For the foregoing reasons, Relators’ motion to strike LabCorp’s errata of Tiana Ayotte’s
deposition testimony (Dkt. No. 333) is GRANTED.
AND IT IS SO ORDERED.
s/ Richard Mark Gergel
Richard Mark Gergel
United States District Judge
June 7, 2021
Charleston, South Carolina
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