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Hall v. U.S. Cargo & Courier Service, LLC

United States District Court, S.D. Ohio, Eastern Division

June 17, 2019

DAVID HALL, et al., Plaintiffs,
v.
U.S. CARGO & COURIER SERVICE, LLC, Defendant.

          Elizabeth P. Deavers, Chief Magistrate Judge.

          OPINION & ORDER

          EDMUND A. SARGUS, JR. CHIEF UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Plaintiffs David Hall, Nick Thompson, and Dustin Bryan's (collectively "Plaintiffs") Motion to Strike (ECF No. 126), Defendant U.S. Cargo & Courier Service, LLC's ("U.S. Cargo") Response in Opposition (ECF Nos. 130, 131), and Plaintiffs' Reply (ECF No. 132). For the reasons stated below, the Court GRANTS in PART and DENIES in PART Plaintiffs' Motion to Strike. (ECF No. 126.)

         I.

         On January 16 and 17, 2019, Plaintiffs' counsel deposed David Hammel ("Hammel"), Jeremy Lutey ("Lutey"), and Serena Whitman ("Whitman"). (See Def.'s Mot. to Strike, Exs. A, B, C [ECF Nos. 126-2, 126-3, 126-4].) On February 28, 2019, the court reporting service granted U.S. Cargo a 30-day extension to submit errata sheets. On March 8, 2019, U.S. Cargo timely submitted notarized errata sheets for the deposition transcripts of Hammel, Lutey, and Whitman. On behalf of Hammel, U.S. Cargo sought to correct ten alleged errors. U.S. Cargo designated eight of those corrections as "clarification of testimony" and two as "inaccurate testimony." (See Mot. to Strike, Ex. A [ECF No. 125-2].) U.S. Cargo requested to correct four alleged errors in Lutey's deposition transcript. U.S. Cargo designated three corrections as "clarification of testimony" and one as "inaccurate testimony." (See Mot. to Strike, Ex. B [ECF No. 125-3].) For Whitman's deposition transcript, U, S. Cargo requested to correct 58 alleged errors. (See Mot. to Strike, Ex. B [ECF No. 125-4].) U.S. Cargo asserts that 44 of those changes were for "clarification of testimony," ten were to "correct typographical errors," and four were due to "inaccurate testimony." Id.

         On March 19, 2019, Plaintiffs filed a motion to strike and attached the errata submitted by U.S. Cargo. (See Mot. to Strike [ECF No. 125].) The next day, Plaintiffs filed the identical motion to strike but attached as exhibits three summaries of each deponent's errata. (See Mot. to Strike [ECF No. 126].) The Clerk then restricted Plaintiffs' first motion to strike, noting that counsel refiled the same motion twice. For practical purposes, the Court will address the motion to strike that Plaintiffs filed on March 20, 2019, because that motion is substantively identical to Plaintiffs' first motion. The Court will only address the errata sheets attached to the first motion, however, because those are the actual sworn documents that U.S. Cargo submitted on behalf of the deponents.

         II.

         Federal Rule of Civil Procedure 30(e) outlines the process by which a deponent may alter her testimony:

(1) Review; Statement of Changes. On request by the deponent or a party before the deposition is completed, the deponent must be allowed 30 days after being notified by the officer that the transcript or recording is available in which:
(A) to review the transcript or recording; and
(B) if there are changes in form or substance, to sign a statement listing the changes and the reasons for making them.
(2) Changes Indicated in the Officer's Certificate. The officer must note in the certificate prescribed by Rule 30(f)(1) whether a review was requested and, if so, must attach any changes the deponent makes during the 30-day period.

Fed. R. Civ. P, 30(e). District courts in the Sixth Circuit interpret this Rule restrictively. Although Rule 30(e) refers to changes in "substance," courts in the Sixth Circuit have interpreted the Rule to prohibit substantive changes and permit only the correction of typographic and transcription errors. See, e.g., McClendon v. Hightowers Petroleum Co., No. 1:14-cv-619, 2016 WL 2859625, at *l-2 (S.D. Ohio May 16, 2016); Mullins v. Cyranek, No. 1:12-cv-384, 2014 WL 3573498, at *2 (S.D. Ohio July 21, 2014); Tchankpa v. Ascena Retail Grp., Inc., 2:16-cv-895, 2018 WL 1472527, at *l-2 (S.D. Ohio Mar. 26, 2018).

         This restrictive approach stems from the Sixth Circuit's decision in Trout v. FirstEnergyCorp., 339 Fed.Appx. 560, 565 (6th Cir. 2009). Addressing the scope of ...


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