Motion to Strike "Errata Sheets" to Deposition Testimony Granted Where Plaintiff's Expert Witnesses Changed Answers from "No" to "Yes"

November 26, 2014

In this patent infringement action, the defendant filed a motion to strike the "errata sheets" to deposition testimony of two of plaintiffs' expert witnesses, Neill Luebke and Robert Sinclair. The plaintiff opposed the motion to strike.

As explained by the district court, "[t]here is an old joke that only lawyers and house painters can change black to white, and vise versa. In a sense, that is the situation this motion presents. Defendant complains that the plaintiffs' witnesses Luebke and Sinclair submitted errata sheets regarding their respective depositions which starkly changed the substance of their testimonies. For example, in several instances, Sinclair changed his deposition answer from 'no' to 'yes.' In other places, a somewhat tenuous answer of, 'I believe not,' was changed to a dogmatic and emphatic 'yes.' Similarly, Luebke changed, 'I don't believe so,' to 'yes,' and 'At the present time, I have not,' to 'Yes.' And there are other examples."

Rule 30(e) requires that each errata sheet provide a reason for the change to the deposition testimony. "As far as the changes to substance is concerned, those reasons range from 'forgetfulness' to 'I did not understand the legal term prosecution history.' In the Sixth Circuit, a deponent may correct only typographic and errors in transcriptions, Trout v. Firstenergy Generation Corp. 2009 W.L. 2336938 (6th Cir. 2009). "

As a result the district court concluded that "Luebke and Sinclair may not use an errata sheet to change the substance of their prior sworn testimony. As Magistrate Judge Pham noted, this is not to say that these two witnesses are barred from testifying to something other than that to which they testified in their depositions, but they are precluded from altering their prior sworn deposition testimony under Rule 30(e)."

Accordingly, the district court granted the motion to strike both errata sheets to the extent that the changes "on the errata sheet that altered the substance of the deposition testimony, e.g., for which the stated reasons are 'forgetfulness' or claimed misunderstandings of terms used in the questions."

Dentsply International, Inc. v. US Endodontics, LLC, Case No. 2:14-cv-196 (E.D. Tenn. Nov. 2014)

The authors of www.PatentLawyerBlog.com are patent trial lawyers at Jeffer Mangels Butler & Mitchell LLP. We represent inventors, patent owners and technology companies in patent licensing and litigation. Whether pursuing patent violations or defending infringement claims, we are aggressive and effective advocates for our clients. For more information contact Stan Gibson at 310.201.3548 or SGibson@jmbm.com.