Campbell v. Verizon Virginia, Inc.

812 F. Supp. 2d 748, 2011 U.S. Dist. LEXIS 103112, 2011 WL 4073143
CourtDistrict Court, E.D. Virginia
DecidedSeptember 13, 2011
DocketCase No. 3:11cv2-DWD
StatusPublished
Cited by15 cases

This text of 812 F. Supp. 2d 748 (Campbell v. Verizon Virginia, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Campbell v. Verizon Virginia, Inc., 812 F. Supp. 2d 748, 2011 U.S. Dist. LEXIS 103112, 2011 WL 4073143 (E.D. Va. 2011).

Opinion

MEMORANDUM OPINION

DENNIS W. DOHNAL, United States Magistrate Judge.

This matter is before the Court by consent of the parties pursuant to 28 U.S.C. § 636(c)(1) on the Defendant’s Motion for Summary Judgment (ECF No. 20) and the Plaintiffs Motion for Leave to Amend his Brief in Opposition thereto (ECF No. 27). The matter has been thoroughly addressed by the parties’ submissions and the Court has entertained oral argument on the matter. For the reasons stated herein, the Court shall GRANT the Defendant’s Motion for Summary Judgment (ECF No. 20) and DENY the Plaintiffs Motion for Leave (ECF No. 27).

I. PRELIMINARY ISSUES

The Court must address two preliminary matters that have been raised by the Plaintiff before it can adequately set-forth the factual and procedural background of the case. First, the Plaintiff seeks leave of the Court to supplement the record with belatedly discovered payroll records. Second, the Plaintiff has objected to the use of his own deposition transcript in support of the Defendant’s Motion for Summary Judgment without the Court also considering his errata sheet, which was not yet due at the time of oral argument. Because both issues affect the Court’s utilization of the record establishing the undisputed material facts necessary for resolution of the Motion for Summary Judgment, both issues must be initially addressed.

A. Plaintiffs Motion for Leave to Amend his Brief in Opposition

The Court will deny Plaintiffs Motion for Leave because the deadline for submitting his opposition to the motion has expired and the Plaintiff has not established that the delay results from excusable neglect. See Fed.R.Civ.P. 6(b)(1)(B) (“When an act may or must be done within a specified time, the court may, for good cause, extend the time ... after the time has expired if the party failed to act because of excusable neglect”); Orsi v. Kirkwood, 999 F.2d 86, 91 (4th Cir.1993) (applying abuse of discretion standard when reviewing enforcement of Rule 6(b) but strictly construing the rule itself). Simply noting that he only discovered the payroll records after he filed his opposition to the Defendant’s Motion for Summary Judgment is insufficient in and of itself, absent an explanation of why he neglected to timely search for and submit the records.

Moreover, “[i]t is well established that unsworn, unauthenticated documents cannot be considered on a motion for summary judgment.” Orsi, 999 F.2d at 92 (citations omitted). For documents to be considered, they “must be authenticated by and attached to an affidavit” that meets the strictures of Rule 56. Id. (citations omitted). Here, no such attempt to authenticate the documents has been made. And although the documents appear to be copies of the Defendant’s own records, the Plaintiff has not articulated how the material contained therein establishes any dis[751]*751pute of material fact.1 Accordingly, the Court denies the motion on this additional basis.

B. The Plaintiffs Deposition Errata Sheet

The Plaintiff initially objected to the Defendant’s use of his own deposition in support of its Motion for Summary Judgment, arguing that he had not yet signed the transcript after reviewing it pursuant to Fed.R.Civ.P. 30(e). At oral argument, the Court directed counsel for Campbell to have his client do so immediately. Pursuant to the Court’s instruction, the Plaintiff has now filed with the Court a copy of his executed signature page to the deposition transcript, including an errata sheet containing four additions to his testimony. Accordingly, the objection is now overruled as moot, and the Court will consider the Plaintiffs deposition in resolving the Defendant’s Motion for Summary Judgment.

However, the questionable nature of the Plaintiffs newly-formulated testimony visa-vis an errata sheet gives the Court pause. There presently exists a split of authority as to how a court should reconcile such conflicting testimony, and disagreement even persists among federal courts sitting in the Court’s own state of Virginia. Compare Touchcom, Inc. v. Bereskin & Parr, 790 F.Supp.2d 435, 465, No. 1:07cv114, 2011 WL 1885665, at *26 (E.D.Va.2011) (permitting correction of inaccuracies, but not tactical adjustments) with Foutz v. Town of Vinton, 211 F.R.D. 293, 295 (W.D.Va.2002) (permitting broad substantive changes to deposition testimony).

One series of cases suggests that the scope of changes permitted pursuant to Rule 30(e) is essentially boundless. See, e.g., Holland v. Cedar Creek Mining, Inc., 198 F.R.D. 651, 653 (S.D.W.Va.2001). Where such an approach is followed, the opposing party may nevertheless impeach a witness with any contradictory, unpolished statements. See Usiak v. New York Tank Barge Company, Inc., 299 F.2d 808, 810 (2d Cir.1962) (finding error in the trial court’s refusal to permit the use of preerrata sheet testimony to impeach a witness). That is to say, the conflicting statement is not replaced, and the deponent is instead left with both the original testimony and the errata sheet. The other approach taken by some courts is to simply strike any changes attempting to alter the substance of the deponent’s testimony. See, e.g., Greenway v. Int’l Paper Co., 144 F.R.D. 322, 325 (W.D.La.1992) (“[Rule 30(e) ] cannot be interpreted to allow one to alter what was said under oath”). Each approach is intended to ensure that the deponent does “not stand in any better case” as a result of his substantive revisions to his own testimony. Foutz, 211 F.R.D. at 295 (internal quotation marks omitted).

Under certain circumstances, the substantive use of an errata sheet to change deposition answers is analogous to a “sham” declaration designed solely to defeat summary judgment, especially where such material is submitted after briefing and oral argument on the related motion. See Francisco v. Verizon South, Inc., 756 F.Supp.2d 705, 714 (E.D.Va.2010). “[I]t is well established that a genuine issue of fact is not created where the only issue of [752]*752fact is to determine which of the two conflicting versions of a party’s testimony is correct.” Grace v. Family Dollar Store, Inc. (In re Family Dollar FLSA Litigation), 637 F.3d 508, 512 (4th Cir.2011). The Court will take no position on the present state of disagreement among the courts on the issue because, as this Court perceives it, neither approach would permit the use of a “sham” errata sheet whose sole apparent purpose is to create a genuine issue of material fact intended to preclude the granting of dispositive relief. Stated another way, pursuant to either rule, the Plaintiff cannot create a genuine issue of material fact where the sole issue is to “determine which of the two conflicting versions ... is correct.” Id.

Here, however, it is not entirely clear in any event that the Plaintiffs errata

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Bluebook (online)
812 F. Supp. 2d 748, 2011 U.S. Dist. LEXIS 103112, 2011 WL 4073143, Counsel Stack Legal Research, https://law.counselstack.com/opinion/campbell-v-verizon-virginia-inc-vaed-2011.