Plaintiff’s Motion to Strike “Material Changes” From Errata Sheets Granted

21 Jan 2022

In PAJAK v. UNDER ARMOUR, INC., Civil Action No. 1:19-CV-160 (N.D. W. Va. Jan. 10, 2022), before the Magistrate Judge were issues arising from Plaintiff’s efforts to conduct discovery related to her complaints alleging Defendants’ intentional spoliation of evidence.

The spoliation claims focused on Defendants’ efforts to gather, preserve, and analyze certain digital information and electronic devices. Plaintiff argued that the digital information and contents of the devices had a bearing on Plaintiff’s underlying claims.

Under Armour produced witness Mike Maryanski to testify to several FRCP 30(b)(6) topics, including “Under Armours measures to preserve company-issued electronic devices (iPhone, iPad, and laptop) used by co-Defendant Brian Boucher, Under Armour’s measures to preserve Plaintiff’s company-issued laptop, Under Armour’s overall efforts to preserve evidence, Under Armour’s records retention obligations, and the basis for statements Under Armour’s counsel made in the course of earlier discovery disputes.”

Under Armour also produced witness Nancy Tucker to testify as to other topics, including Under Armour’s efforts to preserve information from co-Defendant Brian Boucher’s iPhone, among other things.

Following the witnesses’ submission of errata sheets, Plaintiff complained that the errata sheets improperly made substantive changes to their deposition testimony.

Plaintiff argued that she did not have an appropriate opportunity to question the deponents on the substantive changes and would be unfairly disadvantaged later in litigation. The changes, Plaintiff argued, were material changes to the testimony, not just clarifications.

Under Armour argued that the changes reflected on the errata sheets were the result of confusing questions from the opposing counsel, therefore were permissible clarifications, and that even if the changes were viewed as substantive, Plaintiff could cross-examine the deponents at trial.

Under the Federal Rules of Civil Procedure 30(e)(1), errata sheets resulting from a deposition are handled as follows: “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.”

According to the Court, courts could take either a broad approach or narrow approach: the broad approach is that “if the procedural requirements of the rule are met, any substantive change will be deemed permissible, even those that create inconsistencies or that directly contradict prior testimony.”  Per the narrow approach, a deponent is permitted “only the correction of demonstrated errors made by the Court reporter, whether in form or in substance.” The approach a court adopts is driven by issues of “fundamental fairness to the parties, unfair prejudice, deponent or deponent or counsel conduct, reasons given for the changes, whether reasons for the changes are given at all, and the like.”

In this case, the Court was troubled by the changes reflected on the errata sheets.  “The changes are not mere clarifications, nor are they changes intended to correct substantive errors made by, for instance, a court reporter in the generation of the transcripts. Instead, they appear to have the heavy hand of counsel who were dissatisfied with the deponents’ answers, and who wish to dial back testimony that was not to counsel’s liking. Particularly troubling here is that certain of Maryanski’s changes are based on documents which Under Armour had not produced in advance of Maryanski’s deposition. Moreover, these documents were not even among those which Maryanski testified he relied upon in giving deposition testimony.” 

The Court discussed that if a deponent is permitted to make material changes to their testimony after the fact, a deposition is essentially a “superfluous exercise.” Per the language of the Federal Rules, the errata sheet is an avenue to correct errors in a transcript. But as noted by the Court, it’s difficult to imagine the framers of the Rules intended errata sheets to be used to make material changes. 

Accordingly, Plaintiff’s motion was granted insofar as the errata sheets in question were stricken, except for one correction of a typographical error.