Ramirez v. HV Global Management Corporation

Opinion

NELSON RAMIREZ, Case No. 21-cv-09955-BLF (VKD)

Plaintiff, ORDER GRANTING PLAINTIFF'S v. MOTION TO STRIKE DEPOSITION ERRATA CORPORATION, et al., Re: Dkt. No. 124 Defendants.

Plaintiff Nelson Ramirez moves to strike the errata submitted by defendant HV Global Management Corporation (“HV Global”) to the transcript of the deposition of its Rule 30(b)(6) designee Anthony Williams. Dkt. No. 124. HV Global opposes the motion. Dkt. No. 128. The Court held a hearing on the dispute on October 24, 2023. Dkt. No. 134. Upon consideration of the moving and responding papers, as well as the arguments presented at the hearing, the Court grants Mr. Ramirez’s motion to strike eight changes in the deposition errata. On July 6, 2023, Mr. Williams testified in deposition as a Rule 30(b)(6) designee on behalf of HV Global. Dkt. No. 124-1 ¶ 2. HV Global received notice that a transcript of his testimony was available for review on July 20, 2023. Dkt. No. 129 ¶ 4, Ex. C. On August 21, 2023, HV Global submitted an errata indicating changes to Mr. Williams’ testimony and the reason for each change. Id. ¶ 5, Ex. D. Mr. Ramirez summarizes eight of those changes in the following chart: Page(s): Question Deposition Requested Change Reason Given Line(s) Testimony for Change meal and rest break document was an old version believed that this 11 policy for non-exempt applied to that should not have was the newer hourly paid employees Highlands Inn, been in circulation. It version of the in California at yes.” has been replaced by document.” Highlands Inn?” a newer version.” 138:14 “And did [the above- “Yes.” “No.” “I mistakenly mentioned policy believed that this document] apply to all was the newer non-exempt hourly version of the paid employees at document.” Highlands Inn?” 138:17- [Regarding the policy “I believe so, “No.” “I mistakenly document mentioned yes.” believed that this 138:22 above] “Has this was the newer policy been in place version of the from 2017 to document.” present?” [Deponent states he is “looking over it” prior to providing his answer.] 138:25- “So [the policy “I believe so.” “No.” “I mistakenly document mentioned believed that this 139:3 above] is HV Global's was the newer current policy on meal version of the and rest breaks as well document.” for non-exempt hourly paid employees in California?” 146:23- “Would it be accurate “I would say “This meal and rest “I mistakenly to say that the [policy they both break policy (Exh. 4, believe that 147:6 document mentioned applied.” Batestamp Exhibit 5 was the above] supplemented HVGLOBAL000070) newer version of this policy or was … applied to non- the document.” in addition to this … exempt employees at policy here in the [Defendant]. Exhibit handbook?” 5 was an old version of a stand alone document that has 151:5-9 “To the best of your “Yes, I believe “No.” “I mistakenly knowledge, is this so.” believed that this meal and rest break (Exhibit 5) was policy [referring to the the newer version policy mentioned of the above] still in effect, document.” regardless of the changes in the employee handbook?” 151:10- “And to the best of “I wouldn't -- “No.” “I mistakenly 14 your knowledge, this yeah, I believed that this meal and rest break wouldn't say (Exhibit 5) was policy is still the one permanently. I the newer version that is currently in would say I of the effect presently; believe it's document.” correct?” presently in effect.” 151:15- “For all non-exempt “Yes, I believe “No.” “I mistakenly hourly paid employees so.” believed that this 22 in California. (Exhibit 5) was Correct?” the newer version of the document.”

Dkt. No. 124 at 3-6; Dkt. No. 124-1, Exs. A, B. Mr. Ramirez filed a motion for class certification on August 18, 2023—three days before receiving the errata for Mr. Williams’ Rule 30(b)(6) deposition. See Dkt. No. 118. Mr. Ramirez’s motion relies in part on Mr. Williams’ testimony, including testimony corresponding to the eight entries in the errata reproduced above concerning HV Global’s meal and rest break policies. Mr. Ramirez objects that HV Global should not be permitted to change Mr. Williams’ testimony by means of an errata to his deposition transcript, particularly after Mr. Ramirez relied on that testimony to support his motion for class certification. See Dkt. No. 124. Rule 30(e) of the Federal Rule of Civil Procedure permits a deponent to make changes to his deposition testimony “in form or substance” provided the deponent (1) requests review of the making them, and (3) submits changes within 30 days of receiving notice that the transcript is available. Fed. R. Civ. P. 30(e)(1)-(2). Rule 30(e) does not permit a deponent to change his testimony as a “sham” solely to evade an unfavorable ruling. See Hambleton Bros. Lumber Co. v. Balkin Enterprises, Inc., 397 F.3d 1217, 1225 (9th Cir. 2005); Lewis v. The CCPOA Benefit Tr. Fund, No. C-08-03228-VRW DMR, 2010 WL 3398521, at *2 (N.D. Cal. Aug. 27, 2010). The Ninth Circuit has made clear that “Rule 30(e) is be used for corrective, and not contradictory, changes.” Hambleton, 397 F.3d at 1226. Initially, Mr. Ramirez challenged the entirety of the deposition errata as untimely. See Dkt. No. 124 at 6-7. However, in view of the evidence HV Global submitted in opposition, Mr. Ramirez conceded during the hearing that the errata was not untimely, as the errata was submitted within 30 days of HV Global’s receipt of notice. Dkt. No. 134. Mr. Ramirez’s principal arguments are that the eight changes HV Global made contradict Mr. Williams’ testimony and reflect a tactical effort to avoid class certification.1 Dkt. No. 124 at 7-8. HV Global responds that the eight changes in the errata merely correct an “unintentional misstatement” by Mr. Williams, who “mistook older versions of relevant policies for the current ones because the documents appear strikingly similar.” Dkt. No. 128 at 2, 4. It cannot be seriously disputed that the eight changes to Mr. Williams testimony are “contradictory”: in each instance, he changes his testimony from a definitive (or almost definitive) “Yes” to a definitive “No.“ However, in each instance, he explains that he made a mistake and believed that the written policy shown to him in deposition was the newer or current version of the policy. The Court has no reason to question the truthfulness of this explanation. As HV Global points out, Mr. Williams was shown only one version of the policy during his deposition and was not asked to compare the different versions or to explain their provenance. Perhaps Mr. Williams should have known better or been better prepared, as Mr. Ramirez argues. Nevertheless, the Court is not persuaded that Mr. Williams deliberately gave incorrect testimony in his deposition, hoping Mr. Ramirez would rely on it in his class certification motion so that HV Global could later change the testimony and undercut the merits of the motion, or that he initially gave truthful testimony and now seeks to avoid the legal consequences of that testimony by providing false testimony in its place. In other words, the eight changes to the errata are contradictory, but they do not appear to be a sham. HV Global argues that unless the Court concludes the changes in the errata are a sham, the Court may not strike the errata or any portion of it. Dkt. No. 128 at 1. The Ninth Circuit has not directly addressed this question, and courts in this district have reached different conclusions. Compare Lewis, 2010 WL 3398521, at *3 (striking contradictory changes even though changes did not amount to a sham), with Ochoa v. McDonald's Corp., No. 14-cv-2098 JD, 2015 WL 13079032, *1-2 (N.D. Cal. June 2, 2015) (suggesting that Rule 30(e) changes may only be struck if the court finds them to be a sham). The Court agrees with the analysis in Lewis. While Hambleton cited with approval decisions from other circuits analogizing Rule 30(e) to the sham affidavit rule, the Ninth Circuit also quoted with approval the following passage from Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383, 389 (7th Cir.2000): “We also believe by analogy to the cases which hold that a subsequent affidavit may not be used to contradict the witness’s deposition, 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’.” Hambleton, 397 F.3d at 1225. This suggests that in the Ninth Circuit substantive changes that contradict a deponent’s testimony are not permissible under Rule 30(e) unless such changes correct an error in transcription. Because the contested changes in the errata are contradictory and do not merely correct an error in transcription, they are not permitted under Rule 30(e).2

2 HV Global is not without recourse. As the Court explained at the hearing, HV Global and Mr. Williams will have an opportunity to explain the testimony they say is mistaken in opposing Mr. Ramirez’s motion for class certification, and the presiding judge will be in a position to evaluate 2 For the foregoing reasons, the Court strikes the eight changes in Mr. Williams deposition 3 errata that are reproduced above. 5 Dated: October 25, 2023 6

7 VIRGINIA K DEMARCHI 8 United States Magistrate Judge 9 10 11 12

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