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Macy v. Waterford Operations, LLC

United States District Court, D. Oregon, Medford Division

November 27, 2017

WILLIAM MACY, Plaintiff,
v.
WATERFORD OPERATIONS, LLC, and AVAMERE HEALTH SERVICES, LLC, Defendants.

          OPINION AND ORDER

          MARK D. CLARKE, UNITED STATES 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.

         STANDARDS

         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).

         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.

         DISCUSSION

         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)).

         Judges in this district have applied this standard to assess the legitimacy of corrected testimony. In B.J.G. 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 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 ...


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