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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION CHEMFREE CORPORATION, Plaintiff,

CIVIL CASE NO. 1:04-CV-3711-JTC

v. J. WALTER, INC., and J. WALTER COMPANY, LTD. Defendants. ORDER

This matter is currently before the Court on Defendants’ motion to strike or disregard portions of Dr. John B. Durkee’s errata sheet [#403]. Defendants move to strike portions of Dr. Durkee’s errata sheet on the grounds that the errata sheet contradicts Dr. Durkee’s deposition testimony. For the following reasons, the Court grants Defendants’ motion. I.

Background On May 9, 2008, Defendants’ counsel took the deposition of Dr. John B.

Durkee, Plaintiff’s expert. Relying in part on Dr. Durkee’s deposition testimony, Defendants filed a motion for summary judgment on June 11, 2008, arguing that the relevant claims of the patents-in-suit are invalid because they are not enabled under 35 U.S.C. § 112. Six days after Defendants filed their motion for summary judgment, Dr. Durkee submitted a 40 page deposition errata sheet. (Def.’s Mot. Ex. A.) Dr. Durkee’s errata

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sheet contains changes to 87 separate portions of his deposition transcript, very few of which are mere spelling errors or errors in transcription. Defendants then filed a motion to strike the portions of Dr. Durkee’s errata sheet which contradict the testimony he gave during his deposition. II.

Legal Standard Fed. R. Civ. P. 30(e) allows a deponent “to review the transcript or

recording [of a deposition] and, if there are changes in form or substance, to sign a statement reciting such changes and the reasons given by the deponent for making them.” Fed. R. Civ. P. 30(e). These changes are usually in the form of an errata sheet, which is “[a]n attachment to a deposition transcript containing the deponent’s corrections upon reading the transcript and the reasons for those corrections.” BLACK’S LAW DICTIONARY (8th ed. 2004). Courts have taken two different approaches in addressing the types of changes permitted under Rule 30(e). The first line of cases holds that, absent some obvious confusion during a deposition or an error in transcription, deponents cannot make substantive changes to their deposition testimony through the use of an errata sheet. See Reynolds v. I.B.M. Corp., 320 F. Supp. 2d 1290, 1301 (M.D. Fla. 2004), aff’d, 125 Fed. Appx. 982 (11th Cir. 2004). See also Hambleton Bros. Lumber Co. v. Balkin Enters., Inc., 397 F.3d 1217, 1225 (9th Cir. 2005) (holding that “Rule 30(e) is to be used for 2

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corrective, and not contradictory, changes.”); Burns v. Bd. of County Comm’rs of Jackson County, 330 F.3d 1275, 1282 (10th Cir. 2003) (affirming district court’s decision to disregard errata sheet changes because “although Burns asserts that he was confused at his deposition, his answers to the direct questions posed by counsel do not reveal any obvious confusion – as opposed to indecisiveness or inconsistency – that the corrections would need to clarify.”); Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383, 389 (7th Cir. 2000) (“[A] change of substance which actually contradicts the transcript is impermissible unless it can plausibly be represented as the correction of an error in transcription.”). Other courts are more lenient in allowing a deponent to change his or her testimony using an errata sheet. See, e.g., Podell v. Citicorp Diners Club, Inc., 112 F.3d 98, 103 (2d Cir. 1997) (“[T]he language of [Rule 30(e)] places no limitations on the types of changes that may be made, . . . nor does the Rule require a judge to examine the sufficiency, reasonableness, or legitimacy of the reasons for the changes.”). The United States Court of Appeals for the Eleventh Circuit has not directly held which standard should apply in this circuit. See Dering v. Serv. Experts Alliance LLC, Nos. 1:06-CV-00357-RWS, 1:06-CV-00358-RWS, 2007 WL 4299968, at *5 (N.D. Ga. Dec. 6, 2007) (Story, J.). The Eleventh Circuit 3

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has, however, affirmed a district court who applied the more stringent test. See Reynolds, 125 Fed. Appx. 982. See also Amlong & Amlong, P.A. v. Denny’s, Inc., 500 F.3d 1230, 1270 (11th Cir. 2006) (recognizing that the Eleventh Circuit has affirmed a district court who applied the more stringent standard) (Hill, J., dissenting). Although courts are split on when it is appropriate to allow deponents to substantively change their deposition testimony, many courts agree that substantive changes to deposition testimony are particularly suspect when they are offered in response to a motion for summary judgment. See Hambleton Bros., 397 F.3d at 1225 (“While the language of FRCP 30(e) permits corrections ‘in form or substance,’ this permission does not properly include changes offered solely to create a material factual dispute in a tactical attempt to evade an unfavorable summary judgment.”). See also Purdee v. Pilot Travel Centers, LLC, No. CV407-028, 2007 WL 3143716, at *2 n.2 (S.D. Ga. Oct. 23, 2007) (“The Court reserves the question of whether these errata alterations may be relied upon to create a material factual dispute at the summary judgment stage of litigation. While plaintiff is free to make substantive errata changes that contradict her prior deposition testimony, the Court is not necessarily precluded from disregarding such changes in deciding a motion for summary judgment.”). 4

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III.

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Analysis Defendants argue that the Court should strike those portions of Dr.

Durkee’s errata sheet that contradict his prior deposition testimony. For the following reasons, the Court agrees with Defendants and strikes the contradictory portions of Dr. Durkee’s errata sheet. A.

Dr. Durkee’s Errata Sheet Answers Contradict Prior Testimony

Defendants point to specific portions of Dr. Durkee’s errata sheet which they contend are contradictory to his prior deposition testimony. Plaintiff argues that although his answers changed as a result of additional research after the deposition, Dr. Durkee’s errata sheet answers merely supplement his prior answers rather than contradict them. After careful review of the deposition transcript and the portions of Dr. Durkee’s errata sheet to which Defendants object, the Court finds that the following errata sheet answers contradict – or at least substantially change – Dr. Durkee’s prior testimony (deposition page:line): 103:3, 111:13, 112:15, 125:25, 129:13, 131:2, 134:21, 135:1, 135:20, 160:9, 173:22, 175:4, 175:11, 200:9, 212:8, 218:9, 218:14, 219:3, 227:6, 276:14, 299:2, 300:6, and 306:5. Thus, the Court will focus on whether to strike these portions of Dr. Durkee’s errata sheet. B.

ChemFree Had Sufficient Notice of Defendants’ Theories of Invalidity

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Plaintiff argues that Defendants “sandbagged” Plaintiff by raising their non-enablement defense in an untimely manner. According to Plaintiff, it was unable to adequately prepare Dr. Durkee on the law of enablement and on issues surrounding bio-remediation prior to Dr. Durkee’s scheduled deposition. To the contrary, the record reflects that Plaintiff had sufficient notice of Defendants’ non-enablement theory and had ample time to prepare Dr. Durkee for his deposition. For example, the parties’ expert reports indicate that Dr. Durkee was aware of the non-enablement defense well before his deposition. Plaintiff’s expert, Dr. Adriaens, filed his initial expert report – in which he raised the non-enablement issue – on February 29, 2008, ten weeks prior to Dr. Durkee’s deposition. Dr. Durkee filed a rebuttal report on March 31, 2008 – over five weeks prior to his deposition – in which Dr. Durkee devotes twenty pages to rebutting Dr. Adriaens’s non-enablement theories. In addition, Dr. Durkee’s deposition was scheduled for May 9, 2008, but the period for taking expert depositions did not expire until May 23, 2008. Thus, if Plaintiff thought Dr. Durkee was not adequately prepared for his deposition, Plaintiff’s could have sought to postpone Dr. Durkee’s deposition for two weeks in order to further prepare Dr. Durkee on the law of enablement. Plaintiff did not, however, seek such an extension. 6

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Lastly, Dr. Durkee expressly referred to enablement many times in his deposition. (See, e.g., Durkee Dep. at 134:4-10, 135:1-2, 135:10-11.) Even after opposing counsel told Dr. Durkee not to worry about the specific word “enablement” in answering questions, Dr. Durkee continued to opine as to whether the patent could be enabled in particular circumstances. (Id. at 135:20-22.) Thus, Dr. Durkee appeared to be fully prepared to discuss enablement issues. Plaintiff contends that it is the responsibility of counsel to furnish legal principles and standards to experts in order to assist those experts in formulating legal opinions with regard to the particular issues in the case. (See Pl.’s Resp. at 8-10.) Thus, Plaintiff admits that it had the burden to adequately prepare its own expert prior to his deposition. See Rios v. Welch, 856 F. Supp. 1499, 1502 (D. Kan. 1994) (“It was plaintiff's responsibility to ensure that her expert was fully prepared and informed before the expert provided unwavering testimony on the issue . . .”). As such, the fault lies with Plaintiff’s counsel in failing to adequately prepare Dr. Durkee on the legal principles concerning enablement. C.

Dr. Durkee’s “Reasons for Change” Are Insufficient

After each deposition change on his errata sheet, Dr. Durkee gives a reason for why he made the proposed change. Dr. Durkee’s stated reasons 7

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with regard to the changes in question, however, are insufficient to justify the drastic changes he made. For example, in many of the changes, Dr. Durkee’s stated reason is that the new testimony is a more complete answer or it clarifies his previous answer. (See Durkee Errata Sheet at (deposition page:line) 125:25, 129:13, 160:9, 200:9, 306:5.) In fact, to support several of his changes, Dr. Durkee explicitly states that “[t]his answer is more complete upon taking more time to formulate a response to the question.” (Id. at 160:9, 200:9; see also id. at 236:2.) “Taking more time to formulate a response” is exactly what the majority of courts find troubling with contradictory errata sheets: The purpose of Rule 30(e) is obvious . . . The Rule cannot be interpreted to allow one to alter what was said under oath. If that were the case, one could merely answer the questions with no thought at all then return home and plan artful responses. Depositions differ from interrogatories in that regard. A deposition is not a take home examination. Garcia v. Pueblo Country Club, 299 F.3d 1233, 1242 n.5 (10th Cir. 2002). In addition, for several of the changes, Dr. Durkee suggests that he was not prepared for the question or that he gave a rushed answer, and that he was able to give a better answer after reviewing additional materials. (See Durkee Errata Sheet at (deposition page:line) 103:3, 125:25, 129:13, 212:8, 227:6, 292:2.) In support of several changes, Dr. Durkee states that he was

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not aware of certain legal principles prior to his deposition, and that he wished to change his answer after reviewing legal materials Plaintiff’s counsel provided to him after the deposition. (Id. at 131:2, 134:21, 135:1, 135:20.) Being unprepared for a deposition, however, is no excuse for not giving accurate or complete answers at a deposition. Furthermore, if Dr. Durkee felt uncomfortable answering any questions because he was unfamiliar with a particular area of the law, he could have said so. Lastly, Dr. Durkee also claims that he misunderstood some of the questions or was distracted by previous questions, and, therefore, his new answers are better answers. (See Durkee Errata Sheet at (deposition page:line) 111:13, 173:22, 175:4, 175:11, 276:14, 300:6.) During the deposition, however, Dr. Durkee never stated that he misunderstood these questions or that the questions were confusing or unclear. Nor does the transcript of Dr. Durkee’s deposition indicate any “obvious confusion” during the questioning. Absent some “obvious confusion,” Dr. Durkee cannot now decide that the questions were confusing in an effort to change his deposition testimony to avoid an unfavorable summary judgment. See Reynolds, 320 F. Supp. 2d at 1301; Burns, 330 F.3d at 1282. IV.

Conclusion For these reasons, Defendants’ motion to strike Dr. Durkee’s errata 9

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sheet [#403] is GRANTED. The Court STRIKES Dr. Durkee’s proposed changes to the following portions of his deposition transcripts (deposition page:line): 103:3, 111:13, 112:15, 125:25, 129:13, 131:2, 134:21, 135:1, 135:20, 160:9, 173:22, 175:4, 175:11, 200:9, 212:8, 218:9, 218:14, 219:3, 227:6, 276:14, 299:2, 300:6, and 306:5. SO ORDERED, this 30th day of September, 2008.

________________ JACK T. CAMP UNITED STATES DISTRICT JUDGE

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