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Depositions 

Motion to Strike Deposition Errata Sheets

Michael Lowry

The deponent said one thing at deposition, but then submitted an errata sheet that changed that testimony.  Sound familiar?  A prior post discussed how, if changes were made in an errata sheet, the original and new answer would be admissible.  Now a local court has addressed it.



Ashcraft v. Welk Resort Grp., Corp. appears to be a FCRA case.[1]  Experian, a credit reporting agency, was deposed via a 30(b)(6) witness upon whom it regularly relied.  Apparently things did not go well.

After the deposition, Experian submitted 25 changes to Ms. Simmons’ testimony, 17 of which are currently in dispute.  Some of the disputed changes seek to entirely remove portions of Ms. Simmons’ testimony.  Some of the disputed changes seek to directly contradict Ms. Simmons’ testimony, including changing answers from “yes” to “no,” or vice versa, or dropping a “not” from her answer.  Still other disputed changes attempt to alter Ms. Simmons’ testimony about Experian’s “policy” to testimony about what Experian does “in some circumstances.”  The reasons stated for the changes are (1) the “non-responsive” nature of Ms. Simmons’ answers and (2) the need to provide “accuracy” and/or “clarification.”  With respect to at least one change, Experian further explains that the change was made upon “further research” following the deposition.  This “further research” appears to have involved only the review of documents already produced in this litigation.

Plaintiff moved to strike the changes and the motion was granted.  Why the motion was granted is really far more important, but requires far more explanation than I have in me as I draft this post.  This is in part because it seems there are at least three different ways to analyze the question.   If you are 1) in the 9th Circuit; and 2) are considering changes to deposition testimony via an errata sheet; 3) I recommend reading the decision.  Even if it is later overturned by the district court, it is still informative.

[1] No. 2:16-cv-02978, 2017 U.S. Dist. LEXIS 185470, 2017 WL 5180421 (D. Nev. Nov. 8, 2017).