Opinion
20-cv-02146-WHO JSC 20-cv-02794-EMC JSC 20-cv-02965-JSW (JSC)
08-11-2021
SA MUSIC LLC, et al., Plaintiffs, v. APPLE, INC, et al., Defendants.
ORDER RE: DEPOSITION ERRATA DISCOVERY DISPUTE
RE: DKT. NO. 82
JACQUELINE SCOTT CORLEY, UNITED STATES MAGISTRATE JUDGE.
Apple moves to strike deposition errata submitted by Julia Riva and Ray Henderson Music Co. Inc. following their depositions. (Dkt. No. 82.) After carefully considering the parties' submission, the Court STRIKES the challenged deposition errata.
Adasam, No. 20-cv-02146-WHO, Dkt. No. 82; Pickwick, 20-cv-02794-EMC, Dkt. No. 85; Genepool, No. 20-cv-02965-JSW, Dkt. No. 76.
Federal Rule of Civil Procedure 30(e), which governs review of deposition transcripts and changes thereto, permits corrections in “form or substance” of deposition testimony under certain circumstances, provided that procedural requirements are met. However, a deposition is not a take home examination. Thus, in the Ninth Circuit, Rule 30(e) deposition changes are subject to the “sham rule, ” which prevents a party from creating an issue of fact by submitting errata or an affidavit that contradicts prior deposition testimony. In addition, Ninth Circuit authority limits Rule 30's application to corrective, and not contradictory, changes. Changing “yes” to “no” and “correct” to “no not correct” are paradigmatic examples of contradiction, rather than correction.Lee v. The Pep Boys-Manny Moe & Jack of Cal., No. 12-CV-05064-JSC, 2015 WL 6471186, at *1 (N.D. Cal. Oct. 27, 2015) (internal quotation marks and citations omitted).
The errata identified at Exhibit 1 to the joint letter all contradict the deposition testimony and thus must be stricken. Plaintiffs' lament that the errata answer the questions asked at 1
depositions ignores the law governing deposition errata. If Plaintiffs believe they should not be held to the answers given by their witnesses at deposition, then they should make that argument to the trial judges at the appropriate time; it is not a reason to allow a deponent to contradict her/its testimony with what is in essence a lengthy response to a contention interrogatory.
Accordingly, Apple's motion is GRANTED as to the errata identified on Exhibit 1.
This Order disposes of Docket No. 82 in Adasam, No. 20-cv-02146-WHO; Docket No. 85 in Pickwick, No. 20-cv-02794-EMC; and Docket No. 76 in Genepool, No. 20-cv-02965-JSW.
IT IS SO ORDERED. 2