United States District Court, D. Oregon, Medford Division
OPINION AND ORDER
D. CLARKE, UNITED STATES MAGISTRATE JUDGE.
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.
30(e), which governs changes to deposition transcripts,
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
(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
Fed. R. Civ. P. 30(e).
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.
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.
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)).
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.
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 ...