Motion to Strike Errata Sheet to Expert’s Deposition Transcript Granted

Chemfree Corp. v. J. Walter, Inc. & J. Walter Co., Ltd., Case No. 1:04-cv-3711 (N.D. Ga. Sept. 30, 2008) (Camp, J.)

After taking the deposition of Plaintiff’s expert, Defendants filed a motion for summary judgment, arguing that the patent-in-suit is invalid for lack of enablement. Six days later, Plaintiff’s expert submitted a 40-page deposition errata sheet which, according to the Court, contained changes to 87 separate portions of his deposition transcript, very few of which where mere spelling errors or errors in transcription. Defendants moved to strike those portions of the errata sheet that contradicted the expert’s deposition testimony.

Substantive Changes to Deposition Testimony are Suspect if Made In Response to a Motion for Summary Judgment: Judge Camp began his analysis by noting that although courts are split on when it is appropriate to allow deponents to substantively change their deposition testimony (the Eleventh Circuit has not directly held what standard should apply), many courts agree that substantive changes to deposition testimony are particularly suspect when they are offered in response to a motion for summary judgment.

“A Deposition is Not a Take Home Examination”: The Court found that several portions of the errata sheet contradicted, or at least substantively changed, Plaintiff’s expert’s prior testimony, and held that the expert’s stated reasons for making the proposed changes were insufficient. Specifically, the Court rejected the expert’s explanation that the new testimony provided more complete answers formulated after taking more time to respond to the questions. Judge Camp felt that “taking more time to formulate a response” is what most courts find troubling with contradictory errata sheets and quoted one court’s counsel that “[a] deposition is not a take home examination.” Further, the Court did not accept the expert’s claims that his new answers were better because he was not prepared for certain questions, gave rushed answers, and misunderstood certain questions during the deposition. If the expert felt unprepared or confused during the deposition, he could have said so, concluded the Court.

For these reasons, the Court granted Defendants’ Motion to Strike the errata sheet.