Opinion
Civil Action No. 03-0278 Section "K" (1).
June 2, 2005
Before the Court is plaintiffs' Motion To Strike Errata Sheet of Shawn Lind (Rec. Doc. 136). After considering the memoranda, the pleadings, and relevant law, the Court denies plaintiffs' motion.
BACKGROUND
On November 3, 2004, plaintiffs requested documentation of the dollar amount of all sales of eEnterprises, C/S+ and any other successor software products by Great Plains for the period of January 1995 through January 2005. Defendant produced a spreadsheet as to this information ("Shawn Lind No. 1") on January 12, 2005. On February 15, 2005, defendant deposed Ms. Lind as a person with knowledge of how the spreadsheet was created with Great Plains' own expert, George Long. On April 12, 2005, plaintiff filed a motion for partial summary judgment alleging the amounts of infringing sales were not in dispute based upon Shawn Lind's documentation and report ("Shawn Lind No. 1"). On April 19, 2005, defendant's opposition to plaintiffs' motion cites to the errata sheet of Shawn Lind. The errata sheet indicates that Shawn Lind No. 1 includes a specific product it should not have listed. According to plaintiffs, Ms. Lind's errata sheet indicates it was executed on February 21, 2005; a letter dated March 22, 2005 was sent to plaintiffs, which plaintiffs state they did not receive.
Plaintiffs argue that under Fed. Rule of Civil Procedure 30(e), witnesses are given the right to read and sign their depositions and to change their deposition as to form or substance, but a deponent cannot retroactively change the testimony to a "more accurate" or a "more complete" testimony. Plaintiffs contend Ms. Lind repeatedly testified that the substance of her initial search was for CS+ software. Finally, plaintiffs object to the timing of the errata sheet's delivery and point out that GP's own expert used only the Lind No. 1 materials. Defendant argues that LM ignores Ms. Lind's testimony that she could not recall the specifics of Lind 1 without the text of the query in front of her. Furthermore, defendant points out that had Ms. Lind had the query in front of her during the deposition, she could have answered any specific questions asked.
ANALYSIS
Changes by a deponent to his deposition are controlled by Fed.R.Civ.P. 30(e). That rule provides:
If requested by the deponent . . . before completion of the deposition, the deponent shall have 30 days after being notified by the [court reporter] that the transcript . . . is available in which to review the transcript . . . and, if there are changes in form or substance, to sign a statement reciting such changes and the reasons given by the deponent for making them.
Plaintiffs cite to Walker v. Yellow Freight Systems, Inc., 1999 WL 955364 at *7 (E.D.La.) where the Court granted defendant's motion to strike errata sheet. In this case, there were several instances of changes made to the prior deposition. The court found that although the changes did not necessarily "contradict" the original testimony, they went beyond the scope of Rule 30(e). Unlike the instant motion, there were several instances of changes in the prior deposition and the example cited by the court illustrates a more substantial change than the single change made by Ms. Lind at issue here. Furthermore, the opponents in the case filed no opposition to the motion.
The reason for the change given by Ms. Lind was that she could not remember exactly which product lines were included in the search without reading the SQL query. Ms. Lind's original testimony, page 13-14, does not contradict the reason provided. In Innovative Marketing Technology v. Norm Thompson Outfitters, Inc., 171 F.R.D. 203, 204 (W.D.Tex. 1997), the court denied defendant's motion to strike the errata sheets where reasons for changes were to clarify, to correct a misstatement, or to correct a response because the deponent did not understand the question. "Morever . . . the original answers to the deposition would remain as part of the record and could be read at trial because nothing in the rule provided for the original answers to be stricken and policy considerations supported such a finding." Id.
Furthermore, the sworn testimony of Richard Aukland and Shawn Lind brings into question the scope of the initial spreadsheet. See D's Exhibit 2 and 3. Aukland states the spreadsheet "Sales report by customer zip code" are not all C/S+ products, which is what plaintiffs requested from defendant. Aukland based his conclusion on his personal knowledge of the C/S+ product line and the source database from where the information contained in the spreadsheet was gathered. Mr. Aukland manages a team of technical support specialists. Shawn Lind, in her affidavit, states that her query was not limited to a specific product line. She also stated that the second spreadsheet identifies the product sold. Because these two affidavits appear to substantiate the errata sheet, the Court will allow the errata sheet.
Accordingly,
IT IS ORDERED that plaintiffs' Motion To Strike Errata Sheet of Shawn Lind (Rec. Doc. 136) is DENIED.