United States District Court, S.D. Florida
ORDER ON DEFENDANT'S MOTION TO STRIKE ERRATA
G. TORRES UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Pet Supermarket, Inc.'s
(“Defendant”) motion to strike the errata sheet
of Troy Eldridge's (“Plaintiff”) expert,
Randall Snyder (“Mr. Snyder”). Plaintiff
responded to Defendant's motion on June 28, 2019 [D.E.
55] to which Defendant replied on July 8, 2019. [D.E. 64].
Therefore, Defendant's motion is now ripe for
disposition. After careful consideration of the motion,
response, reply, relevant authority, and for the reasons
discussed below, Defendant's motion is GRANTED in
part and DENIED in part.
20, 2019, Defendant deposed Plaintiff's expert, Mr.
Snyder. Mr. Snyder then served his errata sheet on June 12,
2019, that included four changes to his deposition testimony.
Defendant argues that the errata sheet should be stricken
because Mr. Snyder made material changes to the substance of
his testimony in violation of Rule 30(e) of the Federal Rules
of Civil Procedure. Defendant claims that the purpose of an
errata sheet is to correct possible errors in the testimony,
not to materially change it or add responses that the
questions did not elicit. See, e.g., Garcia v.
Pueblo Country Club, 299 F.3d 1233, 1242 (10th Cir.
2002) (“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 artful responses. Depositions differ
from interrogatories in that regard. A deposition is not a
take home examination.”) (quoting Greenway v.
Int'l Paper Co., 144 F.R.D. 322, 325 (W.D. La.
Mr. Snyder's errata sheet contains substantive changes
and he fails to provide any compelling justification in
support thereof, Defendant requests that the Court strike
the errata sheet or, alternatively, reopen Mr. Snyder's
deposition - at Plaintiff's sole expense - to allow
Defendant to question Mr. Snyder about his revised testimony.
See Estate of Duckett by & through Calvert v. Cable
News Network LLP, 2010 WL 11508194, at *2 (M.D. Fla. May
14, 2010) (“[W]here the changes are wholesale-the court
may ‘reopen a deposition to allow for further
cross-examination of the deponent if the changes to the
transcript are so substantial as to effectively render it
‘incomplete or useless without further
testimony.'”) (quoting Foutz v. Town of Vinton,
Virginia, 211 F.R.D. 293, 295 (W.D. Va. 2002)).
30(e) of the Federal Rules of Civil Procedure explains when
and how a deponent may alter his or her deposition testimony:
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
Fed. R. Civ. P. 30(e)(1) (emphasis added). While the plain
language of Rule 30(e) allows for changes in substance of
deposition transcripts, there is a split of authority (as
Plaintiff points out in his response) as to whether
substantive alterations are permissible.
federal courts have adopted a narrow interpretation of Rule
30(e) and only permit corrections of typographical or
transcription errors, not material changes to deposition
testimony. See, e.g. Hambleton Bros. Lumber Co.
v. Balkin Enters., Inc., 397 F.3d 1217, 1225-26
(9th Cir. 2005) (“We agree with our sister
circuits' interpretation of FRCP 30(e) on this point, and
hold that Rule 30(e) is to be used for corrective, and not
contradictory changes.”); Thorn v. Sundstrand
Aerospace Corp., 207 F.3d 383, 389 (7th Cir. 2000)
(“We also believe . . . that a change of substance
which actually contradicts the transcript is impermissible
unless it can plausibly be represented as the correction of
an error in transcription, such as dropping a
‘not.'”); see also Burns v. Bd.
of Cty. Comm'rs of Jackson Cty., 330 F.3d 1275, 1282
(10th Cir. 2003) (“[T]he 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 artful responses.”).
courts, however, have adopted a broad reading of Rule 30(e),
and have allowed parties to make substantive changes.
See, e.g. Alabama Aircraft Industrs., Inc. v.
Boeing Co., 2017 WL 4570829, at *4 (N.D. Ala. May 22,
2017) (denying motion for protective order to exclude errata
sheet corrections in light of the differing approaches taken
by courts and because defendant would be able to cross
examine the deponent about his testimony and inconsistencies
at trial), Report and Recommendation adopted, 2017
WL 4572487, at *1 (N.D. Ala. June 21, 2017); Unlimited
Res. Inc. v. Deployed Res., LLC, 2010 WL 55613, at *3
(M.D. Fla. Jan. 5, 2010) (reviewing cases interpreting Rule
30(e) and concluding that the cases adopting a broad view of
the Rule are more persuasive because the text of the Rule
explicitly refers to changes in substance and because there
are safeguards to prevent the likelihood of abuse of Rule
30(e)); Cultivos Yadran S.A. v. Rodriguez, 258
F.R.D. 530, 533 (S.D. Fla. 2009) (denying motion to strike
substantive errata sheet changes because the majority view
interpreting Rule 30(e) broadly “is in line with the
plain language of Rule 30(e) which contemplates
‘changes in form or substance'” and
“furthers the purpose of the discovery process-to allow
the parties to elicit the true facts of a case before
there is support for both sides of this ongoing debate on
whether a broad or narrow interpretation is to be preferred
(and the Eleventh Circuit has not explicitly held one way or
the other), district courts have interpreted the Eleventh
Circuit's recent decisions as making clear “that
material changes, especially when contradictory to the
deponent's original testimony, are not permissible absent
a good reason.” Maronda Homes, Inc. of Fla. v.
Progressive Exp. Ins. Co., 2015 WL 4167377, at *3 (M.D.
Fla. July 9, 2015); see also In re Abilify (Aripiprazole)
Prod. Liab. Litig., 2018 WL 1627812, at *3 (N.D. Fla.
Apr. 4, 2018) (“[T]he Eleventh Circuit has not
explicitly adopted one view or the other on this
issue”). In light of this principle, Mr.
Snyder's second revision is the only one that includes a
material change. Mr. Snyder initially testified on page 147
of his deposition transcript that “I'm opining on
the capability of the system, not how it was used.”
[D.E. 49]. However, in his errata sheet, Mr. Snyder states
that “even if a campaign was started immediately with
the push of a button it's still an automated text
messaging system.” Id. There is no question
that Mr. Snyder's revision is a material change because
it completely alters the original testimony and Mr. Snyder
offers no ...