Zeiger v. WellPet LLC
- William Orrick
- 3:17-cv-04056
- U.S. District Court · Northern District of California
- 5
In Zeiger v. WellPet, Judge Orrick granted in part and denied in part WellPet’s motion to strike six contradictory deposition errata changes.
Daniel Zeiger and WellPet LLC; the ruling determines which of Zeiger’s deposition errata changes remain part of the deposition record.
What happened
In Zeiger v. WellPet LLC, Daniel Zeiger submitted an errata sheet changing or clarifying 17 parts of his deposition testimony after an emergency interrupted the deposition and before it was completed. WellPet asked the court to strike the changes, arguing that Zeiger improperly used the errata sheet to make major changes instead of clarifying his testimony during the second deposition.
The court found that six changes contradicted Zeiger’s earlier testimony. They concerned what statements he remembered seeing on WellPet’s packaging, whether he might buy the products again, and his answers about BPA and arsenic. The court found that the remaining changes did not contradict his earlier testimony.
Judge William H. Orrick granted in part and denied in part WellPet’s motion to strike. The six contradictory statements were struck from Zeiger’s deposition errata sheet, while the remaining changes were not struck.
The detailed version
- Zeiger v. WellPet LLC · No. 3:17-cv-04056
- William Orrick
- Mar. 16, 2020
Background
Daniel Zeiger’s deposition ended abruptly after he learned about an emergency. Zeiger and WellPet agreed to complete the deposition later. Before the second session, Zeiger submitted an errata sheet containing 13 changes and four clarifications to his testimony. WellPet moved to strike the errata sheet.
The changes addressed Zeiger’s memory of WellPet product names, the statements he recalled seeing on product packaging, whether he would buy the products again if alleged misrepresentations were corrected, and his awareness of BPA, heavy metals, and arsenic in food and pet food. The parties later completed the deposition, and WellPet questioned Zeiger about the errata sheet.
Legal standard
Federal Rule of Civil Procedure 30(e) allows a person who was deposed to review the transcript or recording and list changes and the reasons for making them. The court explained that, in the Ninth Circuit, the “sham rule” prevents a party from creating a factual dispute by submitting errata or an affidavit that contradicts earlier deposition testimony. Under the cases the court cited, Rule 30(e) changes may correct testimony but may not contradict it.
Court’s analysis
The court found six contradictory changes. First, Zeiger originally testified that he did not remember the words on the packaging in 2010, but the errata added statements implying that he did remember them. Second, he changed “I personally would not” consider buying the products to “I may consider buying it” if the labels indicated they might contain trace levels of arsenic, BPA, or lead. Third, the errata added specific packaging statements that Zeiger said he saw and relied on, although his earlier testimony identified only the word “wellness.” Fourth, the errata changed answers about BPA and arsenic from “yes” to “no.”
The court rejected WellPet’s argument that the other errata changes were contradictory. Those remaining changes did not effectively reverse Zeiger’s earlier testimony.
Disposition
The order states that WellPet’s motion to strike was GRANTED IN PART and DENIED IN PART. The court struck the six listed contradictory statements from Zeiger’s deposition errata sheet. The remaining changes were not struck. Judge William H. Orrick entered the order on March 16, 2020.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.