SA Music, LLC v. Apple, Inc ( 2021 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 Case Nos. 20-cv-02146-WHO (JSC) 7 SA MUSIC LLC, et al., 20-cv-02794-EMC (JSC) Plaintiffs, 20-cv-02965-JSW (JSC) 8 v. ORDER RE: DEPOSITION ERRATA 9 DISCOVERY DISPUTE 10 APPLE, INC, et al., Re: Dkt. No. 82 Defendants. 11 12 13 Apple moves to strike deposition errata submitted by Julia Riva and Ray Henderson Music 14 Co. Inc. following their depositions. (Dkt. No. 82.)1 After carefully considering the parties’ 15 submission, the Court STRIKES the challenged deposition errata. 16 Federal Rule of Civil Procedure 30(e), which governs review of deposition transcripts and changes thereto, permits corrections in 17 “form or substance” of deposition testimony under certain circumstances, provided that procedural requirements are met. 18 However, a deposition is not a take home examination. Thus, in the Ninth Circuit, Rule 30(e) deposition changes are subject to the “sham 19 rule,” which prevents a party from creating an issue of fact by submitting errata or an affidavit that contradicts prior deposition 20 testimony. In addition, Ninth Circuit authority limits Rule 30’s application to corrective, and not contradictory, changes. Changing 21 “yes” to “no” and “correct” to “no not correct” are paradigmatic examples of contradiction, rather than correction. 22 23 Lee v. The Pep Boys-Manny Moe & Jack of Cal., No. 12-CV-05064-JSC, 2015 WL 6471186, at 24 *1 (N.D. Cal. Oct. 27, 2015) (internal quotation marks and citations omitted). 25 The errata identified at Exhibit 1 to the joint letter all contradict the deposition testimony 26 and thus must be stricken. Plaintiffs’ lament that the errata answer the questions asked at 27 1 depositions ignores the law governing deposition errata. If Plaintiffs believe they should not be 2 || held to the answers given by their witnesses at deposition, then they should make that argument to 3 || the trial judges at the appropriate time; it is not a reason to allow a deponent to contradict her/its 4 || testimony with what is in essence a lengthy response to a contention interrogatory. 5 Accordingly, Apple’s motion is GRANTED as to the errata identified on Exhibit 1. 6 This Order disposes of Docket No. 82 in Adasam, No. 20-cv-02146-WHO; Docket No. 85 7 in Pickwick, No. 20-cv-02794-EMC; and Docket No. 76 in Genepool, No. 20-cv-02965-JSW. 8 IT IS SO ORDERED. 9 Dated: August 11, 2021 11 ne ACQUELINE SCOTT CORLE 12 United States Magistrate Judge 15 16 17 Z 18 19 20 21 22 23 24 25 26 27 28