In this patent infringement action, the defendants filed a motion to strike an errata change to the deposition testimony of a witness, Joseph Tindall. The district court noted that if the errata were allowed, it would change an answer from "yes" to "no." As a justification for the change, the witness contended he "did not understand the question and gave an incorrect response when [he] answered it 'yes.'" In response, the defendants argued that the requested change was improper.
Federal Rule of Civil Procedure 30(e) governs witness changes to deposition transcripts. The rule provides, in relevant part, that
[o]n 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.
The issue before the district court was whether the changes requested constitute mere "corrections" or, rather, amount to material changes to the testimony.
The district court began its analysis by nothing that "[t]here has been some discussion in this District as to whether the courts herein should follow the majority (more broadly construed) approach or the minority (more restrictive) approach to deposition corrections pursuant to Fed.R.Civ.P. 30(3). The majority, or traditional, view 'has been that Rule 30(e) permitted any changes, regardless of whether they contradicted deposition testimony.' Summerhouse v. HCA Health Services of Kansas, 216 F.R.D. 502, at 504-05 (D.Kan. 2003) (internal citations omitted). The minority view, a more recent trend, 'limits the scope of changes permitted' under the federal rules to the correction of transcription errors. Id., at 505. Thus, this view 'does not authorize changes because the deponent lied, misspoke, or otherwise wants to change or clarify his testimony.' Id."
The district court also "noted disagreement in this District as how liberally or strictly Rule 30(e) should be interpreted." But found that "[a] recent decision from this District, however, provides the necessary guidance. In this circuit, if a change is material, which is defined as one that bears on an essential element of a claim or defense, whether it is permitted under Rule 30(e) is determined by examining the following factors, known as 'the Burns rule': (1) whether the deponent was cross-examined at the deposition; (2) whether the corrections were based on newly discovered evidence; and (3) whether the deponent's deposition testimony reflects obvious confusion, as opposed to indecisiveness or inconsistency, which necessitates a correction to clarify." Cargill Meat Solutions Corp. v. Premium Beef Feeders, LLC, No. 13-11168-EFM-TJJ, 2015 WL 5821696, at *1 (D. Kan. Oct. 5, 2015) (citing Burns v. Board of Cty. Comm'rs of Jackson Cty, 330 F.3d 1275, 1282 (10th Cir. 2003)).
With this understanding, the district court found that "the errata sheet corrections at issue are improper under Rule 30(e). The errata sheet at issue does not enumerate items that were incorrectly transcribed by the Court reporter. Further, there is no argument that the suggested corrections were based on newly discovered evidence. Finally, despite Mr. Tindall's assertions, the testimony exhibits no examples of obvious confusion on behalf of the deponent such as would necessitate clarification"
Accordingly, the district court granted the motion to strike the errata.
Kid Stuff Marketing, Inc. v. Creative Consumer Concepts, Inc., Case No. 15-2620-JWL-KGG (D. Kan. July 13, 2016)