United States District Court, D. Colorado
Michael E. Hegarty, United States Magistrate Judge
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'
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.
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.
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.
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.
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.
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)).
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).
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 ...