Elsherif v. Mayo Clinic

Background

The court addressed three disputes: Dr. Mohamed Elsherif’s appeal of an August 25, 2020 order by Magistrate Judge Katherine M. Menendez; defendants’ motion to strike Elsherif’s Third Supplemental Declaration; and Elsherif’s request for permission to file an amended memorandum opposing defendants’ motion for summary judgment.

Appeal of the Magistrate Judge’s Order

Under the governing standard, the district court could modify or set aside the magistrate judge’s order only if it was clearly erroneous or contrary to law.

Elsherif challenged two parts of the order. First, he argued that the magistrate judge wrongly denied his request for Rule 30(b)(6) deposition testimony about his medical, psychiatric, occupational, and employee-assistance records. The court upheld that ruling. It agreed that Elsherif was suing Mayo Clinic as his employer, not as his medical provider, and that he could not combine Mayo’s two roles to obtain medical information through the employer’s deposition testimony.

Second, Elsherif challenged the decision to strike most, but not all, of his deposition errata. Deposition errata are changes a witness proposes to a deposition transcript. The court explained that although an errata sheet is not technically a pleading subject to an ordinary motion to strike, courts may reject substantive changes when the witness does not provide sufficient justification. The court found that Elsherif’s proposed changes went far beyond correcting or clarifying answers. They reversed answers and greatly expanded others, including changing his answer about whether Dr. Bydon was honest. The court agreed that Elsherif’s stated reasons—including the deposition’s length, limits on his lawyer’s questioning, and the absence of an interpreter—did not justify the changes. It also rejected a new argument based on the court reporter’s instructions, explaining that those instructions did not override the requirements governing deposition testimony.

Third Supplemental Declaration and Amended Memorandum

Elsherif later submitted a Third Supplemental Declaration intended to replace the deposition-errata material that had been cited in his opposition to defendants’ summary-judgment motion. The court concluded that the declaration attempted to accomplish the same improper alteration of sworn testimony and was an end-run around the earlier order. The court also noted that discovery had closed generally, with limited exceptions, and that the time for producing new discovery had passed.

Disposition

The court denied Elsherif’s appeal and affirmed the August 25, 2020 order. It granted defendants’ motion to strike the Third Supplemental Declaration and struck that declaration. It denied Elsherif’s motion for leave to file an amended memorandum using citations that did not rely on the deposition errata.