1 2 3 7 8 NELSON RAMIREZ, Case No. 21-cv-09955-BLF (VKD)
9 Plaintiff, ORDER GRANTING PLAINTIFF'S 10 v. MOTION TO STRIKE DEPOSITION ERRATA CORPORATION, et al., Re: Dkt. No. 124 12 Defendants.
13 14 Plaintiff Nelson Ramirez moves to strike the errata submitted by defendant HV Global 15 Management Corporation (“HV Global”) to the transcript of the deposition of its Rule 30(b)(6) 16 designee Anthony Williams. Dkt. No. 124. HV Global opposes the motion. Dkt. No. 128. The 17 Court held a hearing on the dispute on October 24, 2023. Dkt. No. 134. Upon consideration of 18 the moving and responding papers, as well as the arguments presented at the hearing, the Court 19 grants Mr. Ramirez’s motion to strike eight changes in the deposition errata. 21 On July 6, 2023, Mr. Williams testified in deposition as a Rule 30(b)(6) designee on behalf 22 of HV Global. Dkt. No. 124-1 ¶ 2. HV Global received notice that a transcript of his testimony 23 was available for review on July 20, 2023. Dkt. No. 129 ¶ 4, Ex. C. On August 21, 2023, HV 24 Global submitted an errata indicating changes to Mr. Williams’ testimony and the reason for each 25 change. Id. ¶ 5, Ex. D. Mr. Ramirez summarizes eight of those changes in the following chart: 26 Page(s): Question Deposition Requested Change Reason Given Line(s) Testimony for Change 27 meal and rest break document was an old version believed that this 1 11 policy for non-exempt applied to that should not have was the newer 2 hourly paid employees Highlands Inn, been in circulation. It version of the in California at yes.” has been replaced by document.” 3 Highlands Inn?” a newer version.” 4 138:14 “And did [the above- “Yes.” “No.” “I mistakenly 5 mentioned policy believed that this document] apply to all was the newer 6 non-exempt hourly version of the 7 paid employees at document.” Highlands Inn?” 8 138:17- [Regarding the policy “I believe so, “No.” “I mistakenly 9 document mentioned yes.” believed that this 138:22 10 above] “Has this was the newer policy been in place version of the 11 from 2017 to document.” 12 present?” [Deponent states he is 13 “looking over it” prior 14 to providing his answer.] 15 138:25- “So [the policy “I believe so.” “No.” “I mistakenly 16 document mentioned believed that this 139:3 17 above] is HV Global's was the newer current policy on meal version of the 18 and rest breaks as well document.” 19 for non-exempt hourly paid employees in 20 California?” 21 146:23- “Would it be accurate “I would say “This meal and rest “I mistakenly 22 to say that the [policy they both break policy (Exh. 4, believe that 147:6 document mentioned applied.” Batestamp Exhibit 5 was the 23 above] supplemented HVGLOBAL000070) newer version of 24 this policy or was … applied to non- the document.” in addition to this … exempt employees at 25 policy here in the [Defendant]. Exhibit 26 handbook?” 5 was an old version of a stand alone 27 document that has 1 151:5-9 “To the best of your “Yes, I believe “No.” “I mistakenly knowledge, is this so.” believed that this 2 meal and rest break (Exhibit 5) was 3 policy [referring to the the newer version policy mentioned of the 4 above] still in effect, document.” 5 regardless of the changes in the 6 employee handbook?” 7 151:10- “And to the best of “I wouldn't -- “No.” “I mistakenly 8 14 your knowledge, this yeah, I believed that this meal and rest break wouldn't say (Exhibit 5) was 9 policy is still the one permanently. I the newer version 10 that is currently in would say I of the effect presently; believe it's document.” 11 correct?” presently in 12 effect.” 151:15- “For all non-exempt “Yes, I believe “No.” “I mistakenly 13 hourly paid employees so.” believed that this 22 14 in California. (Exhibit 5) was Correct?” the newer version 15 of the document.” 16
17 Dkt. No. 124 at 3-6; Dkt. No. 124-1, Exs. A, B. 18 Mr. Ramirez filed a motion for class certification on August 18, 2023—three days before 19 receiving the errata for Mr. Williams’ Rule 30(b)(6) deposition. See Dkt. No. 118. Mr. Ramirez’s 20 motion relies in part on Mr. Williams’ testimony, including testimony corresponding to the eight 21 entries in the errata reproduced above concerning HV Global’s meal and rest break policies. 22 Mr. Ramirez objects that HV Global should not be permitted to change Mr. Williams’ 23 testimony by means of an errata to his deposition transcript, particularly after Mr. Ramirez relied 24 on that testimony to support his motion for class certification. See Dkt. No. 124. 26 Rule 30(e) of the Federal Rule of Civil Procedure permits a deponent to make changes to 27 his deposition testimony “in form or substance” provided the deponent (1) requests review of the 1 making them, and (3) submits changes within 30 days of receiving notice that the transcript is 2 available. Fed. R. Civ. P. 30(e)(1)-(2). Rule 30(e) does not permit a deponent to change his 3 testimony as a “sham” solely to evade an unfavorable ruling. See Hambleton Bros. Lumber Co. v. 4 Balkin Enterprises, Inc., 397 F.3d 1217, 1225 (9th Cir. 2005); Lewis v. The CCPOA Benefit Tr. 5 Fund, No. C-08-03228-VRW DMR, 2010 WL 3398521, at *2 (N.D. Cal. Aug. 27, 2010). The 6 Ninth Circuit has made clear that “Rule 30(e) is be used for corrective, and not contradictory, 7 changes.” Hambleton, 397 F.3d at 1226. 9 Initially, Mr. Ramirez challenged the entirety of the deposition errata as untimely. See 10 Dkt. No. 124 at 6-7. However, in view of the evidence HV Global submitted in opposition, Mr. 11 Ramirez conceded during the hearing that the errata was not untimely, as the errata was submitted 12 within 30 days of HV Global’s receipt of notice. Dkt. No. 134. 13 Mr. Ramirez’s principal arguments are that the eight changes HV Global made contradict 14 Mr. Williams’ testimony and reflect a tactical effort to avoid class certification.1 Dkt. No. 124 at 15 7-8. HV Global responds that the eight changes in the errata merely correct an “unintentional 16 misstatement” by Mr. Williams, who “mistook older versions of relevant policies for the current 17 ones because the documents appear strikingly similar.” Dkt. No. 128 at 2, 4. 18 It cannot be seriously disputed that the eight changes to Mr. Williams testimony are 19 “contradictory”: in each instance, he changes his testimony from a definitive (or almost 20 definitive) “Yes” to a definitive “No.“ However, in each instance, he explains that he made a 21 mistake and believed that the written policy shown to him in deposition was the newer or current 22 version of the policy. The Court has no reason to question the truthfulness of this explanation. As 23 HV Global points out, Mr. Williams was shown only one version of the policy during his 24 deposition and was not asked to compare the different versions or to explain their provenance. 25 Perhaps Mr. Williams should have known better or been better prepared, as Mr. Ramirez argues. 26 Nevertheless, the Court is not persuaded that Mr. Williams deliberately gave incorrect testimony 27 1 in his deposition, hoping Mr. Ramirez would rely on it in his class certification motion so that HV 2 Global could later change the testimony and undercut the merits of the motion, or that he initially 3 gave truthful testimony and now seeks to avoid the legal consequences of that testimony by 4 providing false testimony in its place. In other words, the eight changes to the errata are 5 contradictory, but they do not appear to be a sham. 6 HV Global argues that unless the Court concludes the changes in the errata are a sham, the 7 Court may not strike the errata or any portion of it. Dkt. No. 128 at 1.
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1 2 3 7 8 NELSON RAMIREZ, Case No. 21-cv-09955-BLF (VKD)
9 Plaintiff, ORDER GRANTING PLAINTIFF'S 10 v. MOTION TO STRIKE DEPOSITION ERRATA CORPORATION, et al., Re: Dkt. No. 124 12 Defendants.
13 14 Plaintiff Nelson Ramirez moves to strike the errata submitted by defendant HV Global 15 Management Corporation (“HV Global”) to the transcript of the deposition of its Rule 30(b)(6) 16 designee Anthony Williams. Dkt. No. 124. HV Global opposes the motion. Dkt. No. 128. The 17 Court held a hearing on the dispute on October 24, 2023. Dkt. No. 134. Upon consideration of 18 the moving and responding papers, as well as the arguments presented at the hearing, the Court 19 grants Mr. Ramirez’s motion to strike eight changes in the deposition errata. 21 On July 6, 2023, Mr. Williams testified in deposition as a Rule 30(b)(6) designee on behalf 22 of HV Global. Dkt. No. 124-1 ¶ 2. HV Global received notice that a transcript of his testimony 23 was available for review on July 20, 2023. Dkt. No. 129 ¶ 4, Ex. C. On August 21, 2023, HV 24 Global submitted an errata indicating changes to Mr. Williams’ testimony and the reason for each 25 change. Id. ¶ 5, Ex. D. Mr. Ramirez summarizes eight of those changes in the following chart: 26 Page(s): Question Deposition Requested Change Reason Given Line(s) Testimony for Change 27 meal and rest break document was an old version believed that this 1 11 policy for non-exempt applied to that should not have was the newer 2 hourly paid employees Highlands Inn, been in circulation. It version of the in California at yes.” has been replaced by document.” 3 Highlands Inn?” a newer version.” 4 138:14 “And did [the above- “Yes.” “No.” “I mistakenly 5 mentioned policy believed that this document] apply to all was the newer 6 non-exempt hourly version of the 7 paid employees at document.” Highlands Inn?” 8 138:17- [Regarding the policy “I believe so, “No.” “I mistakenly 9 document mentioned yes.” believed that this 138:22 10 above] “Has this was the newer policy been in place version of the 11 from 2017 to document.” 12 present?” [Deponent states he is 13 “looking over it” prior 14 to providing his answer.] 15 138:25- “So [the policy “I believe so.” “No.” “I mistakenly 16 document mentioned believed that this 139:3 17 above] is HV Global's was the newer current policy on meal version of the 18 and rest breaks as well document.” 19 for non-exempt hourly paid employees in 20 California?” 21 146:23- “Would it be accurate “I would say “This meal and rest “I mistakenly 22 to say that the [policy they both break policy (Exh. 4, believe that 147:6 document mentioned applied.” Batestamp Exhibit 5 was the 23 above] supplemented HVGLOBAL000070) newer version of 24 this policy or was … applied to non- the document.” in addition to this … exempt employees at 25 policy here in the [Defendant]. Exhibit 26 handbook?” 5 was an old version of a stand alone 27 document that has 1 151:5-9 “To the best of your “Yes, I believe “No.” “I mistakenly knowledge, is this so.” believed that this 2 meal and rest break (Exhibit 5) was 3 policy [referring to the the newer version policy mentioned of the 4 above] still in effect, document.” 5 regardless of the changes in the 6 employee handbook?” 7 151:10- “And to the best of “I wouldn't -- “No.” “I mistakenly 8 14 your knowledge, this yeah, I believed that this meal and rest break wouldn't say (Exhibit 5) was 9 policy is still the one permanently. I the newer version 10 that is currently in would say I of the effect presently; believe it's document.” 11 correct?” presently in 12 effect.” 151:15- “For all non-exempt “Yes, I believe “No.” “I mistakenly 13 hourly paid employees so.” believed that this 22 14 in California. (Exhibit 5) was Correct?” the newer version 15 of the document.” 16
17 Dkt. No. 124 at 3-6; Dkt. No. 124-1, Exs. A, B. 18 Mr. Ramirez filed a motion for class certification on August 18, 2023—three days before 19 receiving the errata for Mr. Williams’ Rule 30(b)(6) deposition. See Dkt. No. 118. Mr. Ramirez’s 20 motion relies in part on Mr. Williams’ testimony, including testimony corresponding to the eight 21 entries in the errata reproduced above concerning HV Global’s meal and rest break policies. 22 Mr. Ramirez objects that HV Global should not be permitted to change Mr. Williams’ 23 testimony by means of an errata to his deposition transcript, particularly after Mr. Ramirez relied 24 on that testimony to support his motion for class certification. See Dkt. No. 124. 26 Rule 30(e) of the Federal Rule of Civil Procedure permits a deponent to make changes to 27 his deposition testimony “in form or substance” provided the deponent (1) requests review of the 1 making them, and (3) submits changes within 30 days of receiving notice that the transcript is 2 available. Fed. R. Civ. P. 30(e)(1)-(2). Rule 30(e) does not permit a deponent to change his 3 testimony as a “sham” solely to evade an unfavorable ruling. See Hambleton Bros. Lumber Co. v. 4 Balkin Enterprises, Inc., 397 F.3d 1217, 1225 (9th Cir. 2005); Lewis v. The CCPOA Benefit Tr. 5 Fund, No. C-08-03228-VRW DMR, 2010 WL 3398521, at *2 (N.D. Cal. Aug. 27, 2010). The 6 Ninth Circuit has made clear that “Rule 30(e) is be used for corrective, and not contradictory, 7 changes.” Hambleton, 397 F.3d at 1226. 9 Initially, Mr. Ramirez challenged the entirety of the deposition errata as untimely. See 10 Dkt. No. 124 at 6-7. However, in view of the evidence HV Global submitted in opposition, Mr. 11 Ramirez conceded during the hearing that the errata was not untimely, as the errata was submitted 12 within 30 days of HV Global’s receipt of notice. Dkt. No. 134. 13 Mr. Ramirez’s principal arguments are that the eight changes HV Global made contradict 14 Mr. Williams’ testimony and reflect a tactical effort to avoid class certification.1 Dkt. No. 124 at 15 7-8. HV Global responds that the eight changes in the errata merely correct an “unintentional 16 misstatement” by Mr. Williams, who “mistook older versions of relevant policies for the current 17 ones because the documents appear strikingly similar.” Dkt. No. 128 at 2, 4. 18 It cannot be seriously disputed that the eight changes to Mr. Williams testimony are 19 “contradictory”: in each instance, he changes his testimony from a definitive (or almost 20 definitive) “Yes” to a definitive “No.“ However, in each instance, he explains that he made a 21 mistake and believed that the written policy shown to him in deposition was the newer or current 22 version of the policy. The Court has no reason to question the truthfulness of this explanation. As 23 HV Global points out, Mr. Williams was shown only one version of the policy during his 24 deposition and was not asked to compare the different versions or to explain their provenance. 25 Perhaps Mr. Williams should have known better or been better prepared, as Mr. Ramirez argues. 26 Nevertheless, the Court is not persuaded that Mr. Williams deliberately gave incorrect testimony 27 1 in his deposition, hoping Mr. Ramirez would rely on it in his class certification motion so that HV 2 Global could later change the testimony and undercut the merits of the motion, or that he initially 3 gave truthful testimony and now seeks to avoid the legal consequences of that testimony by 4 providing false testimony in its place. In other words, the eight changes to the errata are 5 contradictory, but they do not appear to be a sham. 6 HV Global argues that unless the Court concludes the changes in the errata are a sham, the 7 Court may not strike the errata or any portion of it. Dkt. No. 128 at 1. The Ninth Circuit has not 8 directly addressed this question, and courts in this district have reached different conclusions. 9 Compare Lewis, 2010 WL 3398521, at *3 (striking contradictory changes even though changes 10 did not amount to a sham), with Ochoa v. McDonald's Corp., No. 14-cv-2098 JD, 2015 WL 11 13079032, *1-2 (N.D. Cal. June 2, 2015) (suggesting that Rule 30(e) changes may only be struck 12 if the court finds them to be a sham). The Court agrees with the analysis in Lewis. While 13 Hambleton cited with approval decisions from other circuits analogizing Rule 30(e) to the sham 14 affidavit rule, the Ninth Circuit also quoted with approval the following passage from Thorn v. 15 Sundstrand Aerospace Corp., 207 F.3d 383, 389 (7th Cir.2000): “We also believe by analogy to 16 the cases which hold that a subsequent affidavit may not be used to contradict the witness’s 17 deposition, that a change of substance which actually contradicts the transcript is impermissible 18 unless it can plausibly be represented as the correction of an error in transcription, such as 19 dropping a ‘not’.” Hambleton, 397 F.3d at 1225. This suggests that in the Ninth Circuit 20 substantive changes that contradict a deponent’s testimony are not permissible under Rule 30(e) 21 unless such changes correct an error in transcription. Because the contested changes in the errata 22 are contradictory and do not merely correct an error in transcription, they are not permitted under 23 Rule 30(e).2 24 25
26 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. 27 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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