Setliff v. ZOCCAM Techs.

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DR. REUBEN SETLIFF, Plaintiff, v. ZOCCAM TECHNOLOGIES, INC., Defendant.

No. 3:21-cv-2025-B

United States District Court, N.D. Texas, Dallas Division

March 24, 2023

MEMORANDUM OPINION AND ORDER

DAVID L. HORAN, UNITED STATES MAGISTRATE JUDGE

Defendant Zoccam Technologies, Inc. has filed a Motion to Strike Plaintiff's Errata Sheet to His November 29, 2022 Deposition, see Dkt. No. 204 (the “Setliff Errata Motion”), and a Motion to Strike Joan Waller's Errata Sheet to Her January 4, 2023 Deposition see Dkt. No. 207 (the “Waller Errata Motion”).

United States District Judge Jane J. Boyle has referred both motions to the undersigned United States magistrate judge for a hearing, if necessary, and determination under 28 U.S.C § 636(b). See Dkt. No. 224.

In the Setliff Errata Motion, Zoccam explains that, “[o]n November 29, 2022, Setliff's deposition was taken” that, “[d]uring the course of Setliff's deposition he made a number of admissions”; and that, “[a]s a consequence of Setliff's deposition, Zoccam moved to amend its answer and counterclaim which this Court granted.” Dkt. No. 204 at 7-8.

Zoccam then asserts that,

[f]ollowing Setliff's deposition, he requested several extensions to submit his errata sheet to his November 29, 2022 deposition. Zoccam agreed to Setliff's extension requests. His errata sheet was original due on January 5, 2023 and was finally provided on January 18, 2023, almost two weeks later. Setliff's errata sheet reflected nearly 50 substantive and many contradictory changes to his deposition testimony. See Errata Sheet, hereto attached as Exhibit 4. These extensions are obviously an attempt to substantially change and contradict his prior testimony which would defeat his claims, even assuming such claims had any merit. Setliff's purported changes reflect a complete about face and contradiction to Setliff's original deposition testimony including that the Setliff Trust purchased and owns the Zoccam stock obtained through the two agreements, Exhibits 1 and 2.

Setliff failed to provide specific reasons for these changes on his errata sheet. See Ex. 4. Instead, Setliff offered conclusory, single word characterizations for his numerous changes such as “clarification,” “correction,” or both. Setliff did not elaborate on to why he failed to provide full, truthful, or correct responses to his testimony in the first place. Subsequently reversing Setliff's original testimony with the label “correction,” “clarification,” or both does not provide a compliant basis for Setliff's substantive about face or complies with Fed.R.Civ.P. 30(e).

Dkt. No. 204 at 8-9.

In the Waller Errata Motion, Zoccam explains that “Joan and Dan Waller (the ‘Wallers') represented Setliff regarding his dispute with Zoccam which culminated in the May 2018 Settlement Agreement and SPA”; that “[t]he Wallers' depositions were taken on January 4, 2023 and they were questioned about events leading up to and after the Settlement Agreement and SPA, and especially their representation of Setliff”; and that “[t]he Wallers are not just any fact witnesses but advocates for Setliff and adversaries to Zoccam..” Dkt. No. 207 at 4.

Zoccam then asserts that “Dan Waller offered no proposed changes to his deposition” but that

Joan Waller (“Joan”) provided the opposite. In a 78-page deposition, Joan made 24 changes - most of them substantive and/or adding to her original answer. See Errata Sheet of Joan Waller, hereto attached as Exhibit 1. Like Setliff, Joan's reasons for change almost exclusively were one word conclusions - “clarification” or “correction.” [Zoccam's Motion does not contest the following errata sheet changes: p. 6:17; p. 15:3; p. 21:4; p. 39:2; p. 44:19; p. 46:1; and p. 61:24.] Joan's “changes” did not comply with Fed.R.Civ.P. 30(e) in providing a specific reason(s) for each change in her deposition testimony.

Dkt. No. 207 at 4-5 (cleaned up).

Zoccam urges that “Setliff's errata sheet must be stricken” or, “[a]lternatively, if Setliff's errata sheet is not stricken, then Zoccam is entitled to the [remedies ordered in other cases] including keeping the original answer in the record and being able to impeach Setliff with his attempt to create self-serving responses that align with his interests.” Dkt. No. 204 at 19-20. Zoccam also asserts that it “should also be permitted to reopen Setliff's deposition to address his contradictory changes as well as order Setliff to pay all related expenses.” Id. at 20.

And Zoccam urges that Joan Waller's “errata sheet must be stricken,” or, “[a]lternatively, if Joan's errata sheet is not stricken, then Zoccam is entitled to the [remedies ordered in other cases] including keeping the original answer in the record and being able to impeach Joan with her attempt to create self-serving responses that align with her interests.” Dkt. No. 207 at 14. Zoccam also asserts that “Setliff should be precluded from using Joan's errata sheet changes in any summary judgment proceedings.” Id.

Setliff filed a consolidated response to both motions, see Dkt. No. 219, and Zoccam replied that Setliff responded to the motion[s] contending that in this circuit, courts allow any changes, even if conclusory reasons are provided, and that Zoccam is sufficiently protected by being able to impeach the witnesses with the changes and if necessary, the witnesses can be deposed again. However, Rule 30(e) requires the deponent to provide reasons for the changes to a deposition in order to comply with the rule even if the more lenient test applies. Here, Setliff failed to give sufficient reasons to support the significant changes to the depositions.

Setliff's and Waller's stated reasons for the changes are conclusory and offer Zoccam no real explanation for the changes.

The errata sheets for Setliff and Waller fail to satisfy the rule. As such, this Court should strike the errata sheets. Alternatively, the Court should order Setliff to sit for another deposition, at his cost, so that Zoccam can question him on the changes he made.

Dkt. No. 230 at 1-2, 4, 5.

After carefully reviewing the parties' briefing, the Court grants in part and denies in part Zoccam's Motion to Strike Plaintiff's Errata Sheet to His November 29, 2022 Deposition [Dkt. No. 204] and grants in part and denies in part Zoccam's Motion to Strike Joan Waller's Errata Sheet to Her January 4, 2023 Deposition [Dkt. No. 207] for the reasons and to the extent explained below.

Legal Standards

Federal Rule of Civil Procedure 30(e) states:

(e) Review by the Witness; Changes.

(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.

(2) Changes Indicated in the Officer's Certificate. The officer must note in the certificate prescribed by Rule 30(f)(1) whether a review was requested and, if so, must attach any changes the deponent makes during the 30-day period.

FED. R. CIV. P. 30(e).

The United States Court of Appeals for the Fifth Circuit has held that “Rule 30(e) does not provide any exceptions to its requirements,” including the 30-day time period. Reed v. Hernandez, 114 Fed.Appx. 609, 611 (5th Cir. 2004).

And, as the Court has explained,

[c]ourts take three different approaches when a party challenges proposed substantive changes to deposition testimony pursuant to Rule 30(e). The traditional view is that Rule 30(e) permits a deponent to change deposition testimony by timely corrections, even if they contradict the original answers, giving reasons. This least restrictive approach allows substantive changes, but the prior testimony remains a part of the record and can be used for impeachment.

Conversely, [t]he most restrictive approach allows deponents to correct only typographic and transcription errors.

Other courts apply an analysis similar to the “sham affidavit” rule applicable to an affidavit that contradicts the affiant's prior deposition testimony. Under a more flexible, case-specific approach to the shamaffidavit analysis, courts allow contrary errata if sufficiently persuasive reasons are given, if the proposed amendments truly reflect the deponent's original testimony, or if other circumstances satisfy the court that amendment should be permitted.

The United States Court of Appeals for the Fifth Circuit has not announced its position with respect to the three approaches. ... [A]ccord Gonzalez v. Fresenius Med. Care N. Am., 689 F.3d 470, 480 (5th Cir. 2012) (“Counsel argues on appeal that Relator was entitled to submit an errata sheet and make substantive changes to her deposition under Federal Rule of Civil Procedure 30(e). We do not necessarily disagree, but the only question for our purposes is whether the district court abused its discretion in concluding that Relator's counsel unreasonably and vexatiously multiplied proceedings.”).

Andra Grp., LP v. JDA Software Grp., Inc., No. 3:15-MC-11-K-BN, 2015 WL 12731762, at *13-*14 (N.D. Tex. Dec. 9, 2015) (cleaned up).

This Court at that time adopted and

appl[ied] the broad, least restrictive interpretation of Rule 30(e) because it is consistent with Rule 30(e)'s plain language, which expressly contemplates “changes in form or substance” accompanied by a signed statement reciting the reasons for the changes. FED. R. CIV. P. 30(e). As written, Rule 30(e) makes provision for changes in substance that are made for legitimate reasons, such as to correct a misstatement or honest mistake. While the undersigned wholly agrees that a deposition should not

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