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Senatore v. Lynch

United States District Court, District of Columbia

April 22, 2016

HOLLY E. SENATORE, Plaintiff,
v.
LORETTA E. LYNCH, Attorney General of the United States, Defendant.

OPINION AND ORDER

CHRISTOPHER R. COOPER UNITED STATES DISTRICT JUDGE.

On June 7, 2013, Plaintiff Holly Senatore, a former FBI employee, brought suit against the Attorney General pursuant to the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 700 et seq., claiming that the FBI discriminated against and harassed her based on disability and retaliated against her for engaging in protected activity. Senatore was deposed in connection with her suit on May 28, 2015. More than six weeks later-and 19 days past the 30-day deadline set by Federal Rule of Civil Procedure 30(e) for requesting corrections to a deposition transcript-Senatore submitted an errata containing some 57 edits to the transcript. Although some of these edits constitute minor clerical changes or typographical corrections, the vast majority insert statements that were never made or delete testimony that was given[1]-going so far as to include questions that were never asked[2] and to change several answers from “yes” to “no.”[3] Defendant Department of Justice has moved to strike the portions of Senatore’s errata sheet that materially alter the testimony she provided at her deposition.

Rule 30(e) allows deponents to make “changes [to the transcript of their deposition] in form or substance” by “sign[ing] a statement listing the changes and the reasons for making them.” The rule’s language is admittedly broad and appears to contemplate more than merely clerical or typographical edits. Nevertheless, as Judge Boasberg of this Court recently noted, of the federal courts of appeals to have considered the issue, “the clear majority approves of granting motions to strike contradictory or material errata sheets[] unless supported by convincing explanations.” Jackson v. Teamsters Local Union 922, 310 F.R.D. 179, 183 (D.D.C. 2015) (surveying case law from the First, Second, Third, Sixth, Seventh, Ninth, and Tenth Circuits). Courts “frequently str[ike] such revisions, often on the ground that the explanation [for the change] was insufficient.” Id. (citing cases). And there is every reason to believe that the “[D.C.] Circuit would agree with essentially every circuit in holding that material revisions [to deposition testimony made through errata sheets] should not be accepted absent convincing explanations.” Id.

Senatore provides no such convincing explanations here. Like the plaintiffs in Jackson, she instead “rel[ies], almost exclusively, on the following one-word explanations: ‘clarification, ’ [or] ‘correction.’” Id. at 185. Yet “[t]hese terse offerings do little but state the obvious; the Court presumes that Plaintiffs would not submit errata sheets but for some type of mistake or error. What is missing is any thoughtful or clear articulation of the basis for what constitute significant alterations in sworn testimony.” Id. “[A]ll of the circuits to consider the issue would uphold the striking of [such revisions] where the explanations are so scant.” Id. So too will this Court.

Accordingly, the Court hereby GRANTS Defendant’s [46] Motion to Strike and will allow only the following revisions, to which Defendant consents and which reflect clerical mistakes or errors in transcription:

Page

Line

Reads

Should Read

9

22-23

Ms. White: I would note that’s more than 8 hours ago.

Ms. White: I would note that’s more than 8 hours ago. Ms. Seabrook: Good choice.

51

17

I can’t

I can’t be certain about this -- what they specifically did offer.

97

22

top secret SDI clearance

SSBI clearance

146

10

trader

traitor

148

16-18

Genaldy Stewart

Gradalee Stewart

148

17

stacking

Staffing

156

11-12

rogue

rote

All other revisions are hereby STRICKEN. In addition, because the Court does not rely on the audio recording of Senatore’s deposition in ruling on the government’s motion, the Court hereby DENIES as moot Senatore’s [48] ...


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