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Pesicka v. Farmers' All Natural Creamery, LLC

United States District Court, D. Colorado

August 20, 2018

MELISSA PESICKA, Plaintiff,
v.
FARMERS' ALL NATURAL CREAMERY, LLC, and AWESOME REFRIGERATED TRANSIT OF IOWA, LLC, Defendants.

          ORDER

          Michael E. Hegarty, United States Magistrate Judge

         Defendants Farmers' All Natural Creamery, LLC and Awesome Refrigerated Transit of Iowa, LLC seek to strike Plaintiff Melissa Pesicka's deposition errata sheets. Ms. Pesicka makes six changes to her deposition testimony. I find that all but one constitute impermissible material alterations. Accordingly, I grant in part and deny in part Defendants' motion.

         BACKGROUND

         Ms. Pesicka brings multiple negligence claims arising out of a motor vehicle accident. Compl. ¶¶ 30-58, ECF No. 1. Ms. Pesicka asserts Defendants' employee collided with her minivan from behind while operating a semi-tractor trailer truck. Id. ¶¶ 12-15. As a result of the accident, Ms. Pesicka allegedly suffered injuries to her head, neck, back, shoulder, and upper extremities. Id. ¶ 59.

         Ms. Pesicka's deposition took place on May 7, 2018. Dep. Tr., ECF No. 31-1. Relevant here, she testified that the accident happened both on a small hill and on a flat portion of the interstate. Id. at 41:15-:21. Additionally, she stated multiple times that she was one car length behind a blue truck and two car lengths behind a smaller vehicle in front of it. Id. at 43:21, 44:6-:10, 45:13-:19. Finally she testified that she was seeking compensation for headaches and injuries to her neck, shoulder, and wrist. Id. at 97:4-:9.

         On July 20, 2018, Ms. Pesicka submitted an errata sheet, making six changes to her deposition testimony. Errata Sheet, ECF No. 31-2. First, she attempts to clarify her testimony regarding the location of the accident by stating, “I was coming down a small hill and it is a downgrade but by the time I was able to stop I was on a flat portion of the highway.” Id. at 2-3. Her second through fifth changes seek to alter her testimony that she was one car length behind the truck. For example, she states in support of her second change, “My Dad taught me to drive at least one car length behind for every 10 mph of my speed, so I would estimate that I was at least 5 to 6 car lengths.” Id. Finally, she amends her testimony regarding her injuries by stating, “I forgot to mention the injury to my back as well as my head injury.” Id.

         Defendants subsequently filed the present Motion to Strike Plaintiff's Deposition Errata Sheets, ECF No. 31. Defendants contend Ms. Pesicka makes material changes to her testimony, which is impermissible pursuant to Federal Rule of Civil Procedure 30(e). Id. Ms. Pesicka did not file a response brief.

         LEGAL STANDARD

         Federal Rule of Civil Procedure 30(e) grants deponents thirty days after a deposition to sign a statement listing changes in form or substance to their testimony and the reasons for making them. Substantive changes are those which the court reporter incorrectly transcribed. Garcia v. Pueblo Cty. Country Club, 299 F.3d 1233, 1242 n.5 (10th Cir. 2002). Formal errors are minor incorrect statements by the declarant; i.e., “he reported the name to be ‘Lawrence Smith' but the proper name is ‘Laurence Smith.” Id.

         When the changes do not fall under either of these categories, the Tenth Circuit instructs courts to analyze the factors for determining whether an affidavit creates a sham fact issue. Burns v. Bd. of Cty. Comm'rs of Jackson Cty., 330 F.3d 1275, 1281-83 (10th Cir. 2003). Thus, courts should consider “whether the [declarant] was cross-examined during his earlier testimony, whether the [declarant] had access to the pertinent evidence at the time of his earlier testimony or whether the [errata] was based on newly discovered evidence, and whether the earlier testimony reflects confusion which the [errata] attempts to explain.” Id. at 1282 (quoting Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986)).

         “The Tenth Circuit interprets Rule 30(e) narrowly.” Boyd v. Home Depot, Inc., No. 11-cv-01329-WYD-KLM, 2013 WL 394187, at *2 (D. Colo. Jan. 31, 2013). “The Rule cannot be interpreted to allow one to alter what was said under oath. If that were the case, one could merely answer the questions with no thought at all then return home and plan artful responses. . . .” Garcia, 299 F.3d at 1242 n.5 (quoting Greenway v. Int'l Paper Co., 144 F.R.D. 322, 325 (W.D. La. 1992)). Thus, “[e]rrata sheets may be used [only] to correct errors or to clarify an answer when a question is not understood. . . .” Myers v. Dolgencorp, Inc. No. 04-4137-JAR, 2006 WL 408242, at *1 (D. Kan. Feb. 15, 2006).

         ANALYSIS

         First, Ms. Pesicka's change regarding the location of the accident is proper. The deposition transcript makes clear that there was some confusion when she was being questioned about the accident location. The transcript reads:

Q: Yeah. I'm not picturing that downhill and I go to Wyoming a lot. I practice a lot up in Wyoming. Maybe our definition of ...

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