1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DANIEL ZEIGER, Case No. 3:17-cv-04056-WHO
8 Plaintiff, ORDER GRANTING IN PART AND 9 v. DENYING IN PART MOTION TO STRIKE ERRATA SHEET CHANGES 10 WELLPET LLC, TO PLAINTIFF’S DEPOSITION TESTIMONY Defendant. 11 Re: Dkt. No. 114
12 13 After an emergency brought plaintiff Daniel Zeiger’s deposition to an abrupt pause, he and 14 defendant WellPet, LLC agreed that they would reschedule its completion. Prior to round two, 15 Zeiger submitted an errata sheet that made thirteen changes to his testimony and four 16 clarifications. WellPet moves to strike that errata sheet, arguing that it is an inappropriate vehicle 17 for material alterations and clarifications that could have been made through questioning by 18 plaintiff’s counsel during the course of the second deposition. As set forth below, I find that six of 19 the changes are contradictory; accordingly, I will grant the motion in part. 20 BACKGROUND 21 This case was initiated on July 19, 2017, and Zeiger filed a second amended complaint on 22 July 2, 2018.1 Dkt. Nos. 1, 95. Zeiger’s deposition occurred on July 27, 2018. Declaration of 23 Steven M. McKany (“McKany Decl.”) [Dkt. No. 118-1] ¶ 2. It abruptly came to an end when 24 Zeiger learned about an emergency, and the parties agreed to reschedule it. Id. ¶¶ 3-4; Declaration 25 of Amir Nassihi (“Nassihi Decl.”) Ex. A (July 2018 Depo.) [Dkt. No. 114-2] 172:19-25. After 26 that portion of the deposition counsel for Zeiger sought to “confirm” with counsel for WellPet that 27 1 an errata statement would be “premature” until the deposition had been completed, but counsel for 2 WellPet disagreed. Id. ¶ 6. Accordingly, Zeiger submitted the errata at issue on September 7, 3 2018. Id. ¶ 6. That errata notes, “These corrections/clarifications are lengthy because the 4 deposition of Daniel Zeiger is not yet complete and so there was never an opportunity to otherwise 5 clarify or correct the record.” Nassihi Decl. Ex. B (Errata Sheet) [Dkt. No. 114-3]. 6 The errata sheet contains seventeen entries, thirteen of which are changes and four of 7 which are described as “clarifications” that do not change Zeiger’s testimony but instead provide 8 context for it. The changes fall into four categories. Two relate to Zeiger’s inability to recall the 9 names of all the WellPet products he purchased; the errata adds “I cannot remember the names of 10 them all,” and “I don’t remember the exact names.” Errata Sheet 2-3. Seven relate to the reasons 11 for Zeiger’s purchases, adding specific statements he now says he saw on the packaging, including 12 “quality,” “complete health,” “nothing in excess,” and “natural” where before Zeiger had testified 13 that he could only recall “wellness.” See id. at 4, 5. One change goes to whether Zeiger would 14 buy WellPet products again if the misrepresentations were cured, altering “I personally would not” 15 to “I may consider buying it.” Id. at 6. Finally, three go to Zeiger’s awareness of the presence of 16 BPA, heavy metals, and arsenic in the world and in dog food. Although he initially testified to an 17 awareness of BPA in food, heavy metals in fish, and arsenic in pet food, in the errata he admits 18 only to knowing that “fish may contain mercury.” Id. at 7. 19 At the second part of the deposition on January 11, 2019, WellPet asked Zeiger about the 20 errata sheet. McKany Decl. ¶ 9; see, e.g., McKany Decl. Ex. C (January 2019 Depo.) [Dkt. No. 21 118-2] 220:12-224:23. According to WellPet, counsel for Zeiger did not ask follow-up questions 22 to clarify any of the earlier testimony. Motion to Strike (“MTS”) [Dkt. No. 114] 10. In March 23 2019 WellPet raised issues with the errata sheet and requested that Zeiger withdraw it. McKany 24 Decl. ¶ 11. According to Zeiger, WellPet rebuffed his efforts to meet and confer over the issue. 25 Id. 26 On March 22, 2019, WellPet filed the instant motion to strike the errata sheet to Zeiger’s 27 July 2018 deposition, and it was fully briefed by May 8, 2019. See Opposition (“Oppo.”) [Dkt. 1 extend the hearing date on the motion to allow the parties to complete private mediation. See Dkt. 2 Nos. 124, 126. A hearing on class certification is set for November 18, 2020. Dkt. No. 126. 3 DISCUSSION 4 First I note that the parties should have been able to resolve this issue on their own, and 5 both are at fault for failing to do so. Zeiger should not have attempted to make the changes 6 described below through an errata sheet; he should have waited to clarify his testimony at the 7 second deposition.2 WellPet, too, should have voiced its concerns earlier and agreed to meet and 8 confer prior to filing the pending motion. 9 Under Federal Rule of Civil Procedure 30(e), a deponent is permitted 30 days to review the 10 transcript or recording of a deposition and, “if there are changes in form or substance, to sign a 11 statement listing the changes and the reasons for making them.” Fed. R. Civ. P. 30(e)(1). “In the 12 Ninth Circuit, Rule 30(e) deposition changes are subject to the ‘sham rule,’ which precludes a 13 party from manufacturing an issue of fact by submitting errata or an affidavit that contradicts prior 14 deposition testimony.” Lewis v. The CCPOA Benefit Tr. Fund, No. 08-cv-03228-VRW-DMR, 15 2010 WL 3398521, at *2 (N.D. Cal. Aug. 27, 2010) (citing Hambleton Bros. Lumber Co. v. Balkin 16 Enterprises, Inc., 397 F.3d 1217, 1225 (9th Cir. 2005)). In addition, changes under Rule 30(e) 17 may only be “corrective, and not contradictory.” Hambleton, 397 F.3d at 1226; see Lewis, 2010 18 WL 3398521, at *2-*4 (considering first whether the sham rule applied and second whether the 19 changes were contradictory); see also Mformation Techs., Inc. v. Research in Motion Ltd., 08-cv- 20 04990-JW-HRL, 2011 WL 2940289, at *1 (N.D. Cal. July 20, 2011) (noting that courts have 21 applied Hambleton to strike contradictory errata changes to deposition testimony). But see Ochoa 22 v. McDonald’s Corp., No. 14-cv-02098-JD, 2015 WL 13079032, at *1 (N.D. Cal. June 2, 2015) 23 (declining to read into Hambleton the “sharp restriction” that “transcript changes contradicting the 24 original testimony are per se improper”). 25
26 2 Zeiger’s note at the top of the errata sheet indicates that it is lengthy because “there was never an opportunity to otherwise clarify or correct the record.” But the parties unquestionably intended to 27 conduct a second deposition, which provided that opportunity. I cannot agree with Zeiger that the 1 As the below chart3 shows, six of Zeiger’s errata statements are contradictory. See Lee v. 2 The Pep Boys-Manny Moe & Jack of California, 12-cv-05064-JSC, 2015 WL 6471186, at *2 3 (N.D. Cal. Oct. 27, 2015) (striking changes from “no” to “yes” as “the ‘paradigmatic example’ of 4 contradiction” and further striking changes from “I don’t know” to “yes”). First, Zeiger initially 5 testified that he did not remember the words on the packaging in 2010, but his errata sheet newly 6 adds statements—thus changing his answer to an implied yes. See Errata Sheet 5-6; Lee, 2015 7 WL 6471186, at *2. Second, Zeiger testified that he “personally would not” consider buying the 8 products if the labels indicated they may contain trace levels of arsenic, BPA, or lead, but his 9 errata sheet makes the contrary claim that he “may consider buying it.”4 See Errata Sheet 6. 10 Third, the errata sheet adds specific statements that Zeiger purportedly saw and relied on, whereas 11 during his deposition he could only remember the word “wellness.” See Errata Sheet 6-7.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DANIEL ZEIGER, Case No. 3:17-cv-04056-WHO
8 Plaintiff, ORDER GRANTING IN PART AND 9 v. DENYING IN PART MOTION TO STRIKE ERRATA SHEET CHANGES 10 WELLPET LLC, TO PLAINTIFF’S DEPOSITION TESTIMONY Defendant. 11 Re: Dkt. No. 114
12 13 After an emergency brought plaintiff Daniel Zeiger’s deposition to an abrupt pause, he and 14 defendant WellPet, LLC agreed that they would reschedule its completion. Prior to round two, 15 Zeiger submitted an errata sheet that made thirteen changes to his testimony and four 16 clarifications. WellPet moves to strike that errata sheet, arguing that it is an inappropriate vehicle 17 for material alterations and clarifications that could have been made through questioning by 18 plaintiff’s counsel during the course of the second deposition. As set forth below, I find that six of 19 the changes are contradictory; accordingly, I will grant the motion in part. 20 BACKGROUND 21 This case was initiated on July 19, 2017, and Zeiger filed a second amended complaint on 22 July 2, 2018.1 Dkt. Nos. 1, 95. Zeiger’s deposition occurred on July 27, 2018. Declaration of 23 Steven M. McKany (“McKany Decl.”) [Dkt. No. 118-1] ¶ 2. It abruptly came to an end when 24 Zeiger learned about an emergency, and the parties agreed to reschedule it. Id. ¶¶ 3-4; Declaration 25 of Amir Nassihi (“Nassihi Decl.”) Ex. A (July 2018 Depo.) [Dkt. No. 114-2] 172:19-25. After 26 that portion of the deposition counsel for Zeiger sought to “confirm” with counsel for WellPet that 27 1 an errata statement would be “premature” until the deposition had been completed, but counsel for 2 WellPet disagreed. Id. ¶ 6. Accordingly, Zeiger submitted the errata at issue on September 7, 3 2018. Id. ¶ 6. That errata notes, “These corrections/clarifications are lengthy because the 4 deposition of Daniel Zeiger is not yet complete and so there was never an opportunity to otherwise 5 clarify or correct the record.” Nassihi Decl. Ex. B (Errata Sheet) [Dkt. No. 114-3]. 6 The errata sheet contains seventeen entries, thirteen of which are changes and four of 7 which are described as “clarifications” that do not change Zeiger’s testimony but instead provide 8 context for it. The changes fall into four categories. Two relate to Zeiger’s inability to recall the 9 names of all the WellPet products he purchased; the errata adds “I cannot remember the names of 10 them all,” and “I don’t remember the exact names.” Errata Sheet 2-3. Seven relate to the reasons 11 for Zeiger’s purchases, adding specific statements he now says he saw on the packaging, including 12 “quality,” “complete health,” “nothing in excess,” and “natural” where before Zeiger had testified 13 that he could only recall “wellness.” See id. at 4, 5. One change goes to whether Zeiger would 14 buy WellPet products again if the misrepresentations were cured, altering “I personally would not” 15 to “I may consider buying it.” Id. at 6. Finally, three go to Zeiger’s awareness of the presence of 16 BPA, heavy metals, and arsenic in the world and in dog food. Although he initially testified to an 17 awareness of BPA in food, heavy metals in fish, and arsenic in pet food, in the errata he admits 18 only to knowing that “fish may contain mercury.” Id. at 7. 19 At the second part of the deposition on January 11, 2019, WellPet asked Zeiger about the 20 errata sheet. McKany Decl. ¶ 9; see, e.g., McKany Decl. Ex. C (January 2019 Depo.) [Dkt. No. 21 118-2] 220:12-224:23. According to WellPet, counsel for Zeiger did not ask follow-up questions 22 to clarify any of the earlier testimony. Motion to Strike (“MTS”) [Dkt. No. 114] 10. In March 23 2019 WellPet raised issues with the errata sheet and requested that Zeiger withdraw it. McKany 24 Decl. ¶ 11. According to Zeiger, WellPet rebuffed his efforts to meet and confer over the issue. 25 Id. 26 On March 22, 2019, WellPet filed the instant motion to strike the errata sheet to Zeiger’s 27 July 2018 deposition, and it was fully briefed by May 8, 2019. See Opposition (“Oppo.”) [Dkt. 1 extend the hearing date on the motion to allow the parties to complete private mediation. See Dkt. 2 Nos. 124, 126. A hearing on class certification is set for November 18, 2020. Dkt. No. 126. 3 DISCUSSION 4 First I note that the parties should have been able to resolve this issue on their own, and 5 both are at fault for failing to do so. Zeiger should not have attempted to make the changes 6 described below through an errata sheet; he should have waited to clarify his testimony at the 7 second deposition.2 WellPet, too, should have voiced its concerns earlier and agreed to meet and 8 confer prior to filing the pending motion. 9 Under Federal Rule of Civil Procedure 30(e), a deponent is permitted 30 days to review the 10 transcript or recording of a deposition and, “if there are changes in form or substance, to sign a 11 statement listing the changes and the reasons for making them.” Fed. R. Civ. P. 30(e)(1). “In the 12 Ninth Circuit, Rule 30(e) deposition changes are subject to the ‘sham rule,’ which precludes a 13 party from manufacturing an issue of fact by submitting errata or an affidavit that contradicts prior 14 deposition testimony.” Lewis v. The CCPOA Benefit Tr. Fund, No. 08-cv-03228-VRW-DMR, 15 2010 WL 3398521, at *2 (N.D. Cal. Aug. 27, 2010) (citing Hambleton Bros. Lumber Co. v. Balkin 16 Enterprises, Inc., 397 F.3d 1217, 1225 (9th Cir. 2005)). In addition, changes under Rule 30(e) 17 may only be “corrective, and not contradictory.” Hambleton, 397 F.3d at 1226; see Lewis, 2010 18 WL 3398521, at *2-*4 (considering first whether the sham rule applied and second whether the 19 changes were contradictory); see also Mformation Techs., Inc. v. Research in Motion Ltd., 08-cv- 20 04990-JW-HRL, 2011 WL 2940289, at *1 (N.D. Cal. July 20, 2011) (noting that courts have 21 applied Hambleton to strike contradictory errata changes to deposition testimony). But see Ochoa 22 v. McDonald’s Corp., No. 14-cv-02098-JD, 2015 WL 13079032, at *1 (N.D. Cal. June 2, 2015) 23 (declining to read into Hambleton the “sharp restriction” that “transcript changes contradicting the 24 original testimony are per se improper”). 25
26 2 Zeiger’s note at the top of the errata sheet indicates that it is lengthy because “there was never an opportunity to otherwise clarify or correct the record.” But the parties unquestionably intended to 27 conduct a second deposition, which provided that opportunity. I cannot agree with Zeiger that the 1 As the below chart3 shows, six of Zeiger’s errata statements are contradictory. See Lee v. 2 The Pep Boys-Manny Moe & Jack of California, 12-cv-05064-JSC, 2015 WL 6471186, at *2 3 (N.D. Cal. Oct. 27, 2015) (striking changes from “no” to “yes” as “the ‘paradigmatic example’ of 4 contradiction” and further striking changes from “I don’t know” to “yes”). First, Zeiger initially 5 testified that he did not remember the words on the packaging in 2010, but his errata sheet newly 6 adds statements—thus changing his answer to an implied yes. See Errata Sheet 5-6; Lee, 2015 7 WL 6471186, at *2. Second, Zeiger testified that he “personally would not” consider buying the 8 products if the labels indicated they may contain trace levels of arsenic, BPA, or lead, but his 9 errata sheet makes the contrary claim that he “may consider buying it.”4 See Errata Sheet 6. 10 Third, the errata sheet adds specific statements that Zeiger purportedly saw and relied on, whereas 11 during his deposition he could only remember the word “wellness.” See Errata Sheet 6-7. Finally, 12 the errata sheet changes Zeiger’s answers to questions about BPA and arsenic from “yes” to “no.” 13 See id. at 7. 14 Page Lines Original Change 15 99 7-11 I don’t remember back that far, When making repeated purchases of Wellpet 16 but I remember the colors. The Products throughout the years, I don’t name of it, the colors, and grain remember all the statements I relied on but I 17 free is all I can remember. I think some of the statements I relied on can’t recite the actual individual include “Wellness,” “quality,” “complete 18 ingredients back then compared health,” “nothing in excess,” and “natural.” to now. 19 99 20-22 Wellness, I see the colors, and I Although I cannot recall the specific 20 knew there were a couple other packaging in 2010, in 2014 when making colors but the main was purple repeated purchases of Wellpet Products 21 and yellow. throughout the years, I remember relying on statements on the packaging such as 22 “Wellness,” “quality,” “complete health,” “nothing in excess,” and “natural.” 23 24 3 My reproduction of the chart does not include the “reason/clarification” column. For the changes 25 I describe here, Zeiger claims that he seeks to clarify, that he misspoke, and/or that he became confused by the questioning. 26
4 At the hearing, Zeiger argued that elsewhere in the deposition he indicated that he would 27 consider buying the products under certain circumstances. That testimony—which remains part of I personally would not. I may consider buying it. 2 134- | 19-1 The samples that -- you know, | The samples that -- you know, you open up 3 135 you open up the bag, it’s fresher | the bag, it’s fresher than the next product. It than the next product. It smells. | smells. Like I said earlier, the dogs seem to 4 Like I said earlier, the dogs like it. It comes in a fancier package. And, 5 seem to like it. It comes in a you know, they were — they gave samples, so fancier package. And, you basically, they promoted it. I didn’t see it 6 know, they were — they gave online or whatever. They just handed it me samples, so basically, they [sic], and I saw it on the store shelf. I also 7 promoted it. I didn’t see it believe that I relied on statements on the online or whatever. They just packaging such as “Wellness,” “quality,” 8 handed it me [sic], and I sawit | “complete health,” “nothing in excess,” and 9 on the store shelf. “natural.” 10 142 I understand. I don’t know I don’t know. what levels, but yeah, it’s all 11 around us.
12 169 | 24-25 | Yes, that’s what we already No, I do not know whether all pet foods 13 covered. It’s naturally contain arsenic. occurring.
3 15 Consistent with Hambleton, Lee, and Lewis, I strike these statements as contradictory. A 16 || Contrary to WellPet’s arguments in the briefing and at the hearing, the remaining changes in the 2 17 || errata sheet are not contradictory because they do not effectively reverse what Zeiger said during 18 his deposition. 19 CONCLUSION 20 For these reasons, WellPet’s motion to strike is GRANTED IN PART and the six 21 statements listed above are STRUCK from Zeiger’s deposition errata sheet. 22 IT IS SO ORDERED. 23 Dated: March 16, 2020 24 . 25 liam H. Orrick 26 United States District Judge 27 28