Lee v. Henrico County

Filing 60

MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 3/19/2019. (jsmi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

JEANETTA LEE,

Plaintiff,
V.

Civil Action No. 3:18-cv-508

HENRICO COUNTY,
Defendant.
MEM0R2UHDT}M OPINION

This

STRIKE

matter

is

SUBSTANTIVE

before

the

CHANGES

TO

Court

ERRATA

on

Defendant's

SHEET

(EOF

No.

MOTION

43)

TO

(the

"MOTION"). For the reasons set forth on the record at the Final
Pretrial Conference, and as set out more fully below, the MOTION
will be granted in part and denied in part.
BACKGROUND

The

MOTION

arises

in

discrimination case in which

the

course

of

a

Title

VII

race

Jeanetta Lee ("Lee") alleges that

Henrico County discriminated against her on the basis of her race
when she was not selected for promotion.

Lee also alleges that

Henrico County retaliated against her in violation of Title VII.
See generally Am. Compl. (ECF No. 33). Following her deposition in
the case. Lee filed an errata sheet on

which

she attempted to

correct portions of her deposition transcript. See ECF No. 44, Ex.
B.

Henrico County objects to two changes made on Lee's errata
sheet (EOF No. 44 at 2);

(1) The deposition transcript at page 99 ("the page 99
change") reads as follows:

Question: "Were you aware that there's a
grievance procedure, and do you know whether
this
concern
you
had
would
have
been
appropriate for filing a grievance?"
Lee's Answer: "I was aware. And it probably

would have been appropriate, but I didn't feel
comfortable." (Lee dep. 99:5-10, ECF No. 44,
Ex. A).

On the errata sheet. Lee states: "I think I
also added, I didn't trust it." (ECF No. 44,
Ex. B).

(2) The deposition transcript at page 141 ("the page 141
change") reads as follows:

Question: "Okay. Let me ask you this question
going back, with respect to Paula Reid, you
don't have any reason to believe that Paula
Reid intentionally discriminated against you;
do you?"

Lee's Answer: "No, I do not. . . ." (Lee dep.
141:19-142:1, ECF No. 44, Ex. A)
On

the

errata

sheet.

Lee

states:

believe
it
was
intentional,
malicious." (ECF No. 44, Ex. B).

"Yes,
but

I

not

Henrico County moves to strike both of these changes on the
errata sheet. Lee has responded, and the matter is now ripe for
decision.

Fed. R. Civ. P. 30(e)

In relevant part. Fed. R. Civ. P. 30(e) reads:
(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
recording; and

the

transcript

or

(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)(emphasis added).
Henrico County argues that the page 99 and page 141 changes

should be stricken for both procedural and substantive reasons.

ECF No. 44 at 3-5. The procedural challenge is that Lee did not
follow the requirements of Fed. R. Civ. P. 30(e) because she failed
to provide a reason for either of the requested changes.

The

substantive

her

challenge

deposition testimony.

is

that

ECF No.

Lee

is

trying

44 at 4-5.

to

change

And, according to

Henrico County, these changes go beyond correcting typographical
errors by the court reporter. See E.I. Du Pont De Nemours & Co. v.
Kolon Indus., 277 F.R.D. 286, 297-98 (E.D. Va. 2011).

Lee argues that, in her brief opposing summary judgment, she
did explain the two changes. ECF No. 51 at 1-2. Further, she argues
that the proposed changes either seek to clarify her understanding

of "intentional" (an element of her claim) or add testimony she

feels the court reporter left out. ECF No. 51 at 2-4.
DISCUSSION

"[C]ourts

generally

insist

on

strict

adherence

to

the

technical requirements of [Rule 30(e)]" and "if the deponent does
not provide any reasons for a change, then the rule is violated
and

that

procedural

defect

alone

renders

the

errata

sheet

improper." Kolon Indus., 277 F.R.D. at 294-95. Further, Rule 30(e)

"permit[s].

.

.transcription

corrections,

i.e.

the

reporter

recorded the answer: 'yes' but the deponent actually said 'no.'"
Id. at 296 (internal quotations and footnote omitted).
A. Page 99 Change

Lee has satisfied (but just barely) Rule 30(e)'s requirements
for this change. The page 99 change does arguably provide a reason

for the proposed change: "I think I also added, I didn't trust
it." ECF No. 44, Ex. B.

That is both a stated reason (i.e. the

court reporter left a portion of my testimony out) for the page 99

change and is an acceptable (i.e. typographical omission) change
for Rule 30(e) purposes. Accordingly, the Court denies the MOTION
as to the page 99 change.
B. Page 141 Change

The page 141 change, on the other hand, runs contrary to Rule

30(e), and the MOTION will be granted as to this change. First,
the errata sheet provides no explanation for the necessity of the
4

change, and the MOTION must be granted on this ground alone. See
Kolon Indus., 277 F.R.D. at 294-95. Lee tries to avoid this result

by arguing that her reason was provided in a separate document,
her opposition to summary judgment, citing Hambleton Bros. Lumber
Co. V. Balkin Enterprises, Inc., 397 F.3d 1217, 1224-26 {9th Cir.
2005).

But, Hambleton does not hold that a separate document can

explain an errata sheet change. See id. Indeed, the opinion
contradicts Lee's point: "Hambleton Brothers omitted any statement

in the deposition errata explaining the corrections, despite the
fact that the plain language of the Rule requires that a statement
giving

reasons

for

the

corrections

be

included." Id.

at

1224

(emphasis added). The Court is aware of no authority for Lee's

position, and agrees that the plain text of Rule 30(e) requires

the explanation be given on the errata sheet. Accordingly, Lee
failed to satisfy the requirements of Rule 30(e).

Second, the page 141 change makes substantive changes to Lee's

original deposition testimony.

This Court has previously held

that: "It makes no sense to allow a deponent to change sworn
testimony merely because after the deposition he wishes that he

had said something other than what was said. Indeed, to adopt such
an approach

would

be to set at naught the efficacy of the

deposition process." Kolon Indus., 277 F.R.D. at 297. Here, Lee

completely contradicts her deposition testimony, changing her

answer from "no" to "yes" when asked if she thought she had been

intentionally discriminated against.

As explained more fully in

the Kolon Industries decision. Rule 30(e) does not permit such a
change.
CONCLUSION

For the reasons set forth above and on the record at the

Final

Pretrial

Conference,

Defendant's

MOTION

TO

STRIKE

SUBSTANTIVE CHANGES TO ERRATA SHEET (EOF No. 43) will be granted
in part and denied in part.
It is so ORDERED.

/s/

Robert E. Payne

Senior United States District Judge
Richmond, Virginia
Date: March

2019