PAGE 1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

DAVID UPDIKE, on behalf of himself and all 

others similarly situated,

Plaintiffs,

v.

CLACKAMAS COUNTY,

Defendant.

Case No. 3:15-cv-00723-SI

OPINION AND ORDER

Daniel J. Snyder, Carl Lee Post, and John D. Burgess, LAW OFFICES OF DANIEL SNYDER, 

1000 S.W. Broadway Street, Suite 2400, Portland, OR 97205; Debra J. Patkin, National 

Association of the Deaf, 8630 Fenton Street, Suite 820, Silver Spring, MD 20910. Of Attorneys 

for Plaintiff.

Stephen L. Madkour, Clackamas County Counsel, and Kathleen J. Rastetter, Assistant 

Clackamas County Counsel, 2051 Kaen Road, Oregon City, OR 97045. Of Attorneys for 

Defendant.

Michael H. Simon, District Judge.

BACKGROUND

Plaintiff David Updike (“Plaintiff’) brings this putative class action against Defendant 

Clackamas County, alleging two claims: (1) discrimination in violation of Title II of the 

Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132; and (2) discrimination in 

violation of § 504 of the Vocational Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. 

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PAGE 2 – OPINION AND ORDER

§ 794. On November 30, 2015, the Court granted in part Defendant’s motion to dismiss, ruling 

that, among other things, Plaintiff’s claims based on conduct occurring before April 29, 2013, are 

time-barred under the applicable statute of limitations. 

On January 13, 2016, Plaintiff took the deposition of Clackamas County pursuant to 

Rule 30(b)(6) of the Federal Rules of Civil Procedure. Defendant designated Captain Lee E. Eby 

as its representative. During the deposition, Defendant requested on the record the opportunity to 

have the witness read and sign the deposition transcript. On February 1, 2016, Defendant’s 

counsel submitted to the court reporter the witness’s signed statement of twelve changes and 

reasons for each change. Dkt. 46-1. For some changes, the stated reason was to clarify the initial 

response; for most changes, the stated reason was to provide additional information to clarify and 

supplement the initial response. Plaintiff objects to Defendant’s corrections as improper 

substantive changes and moves to strike. For the reasons stated below, Plaintiff’s Motion to 

Strike Deposition Changes by Defendant Clackamas County (Dkt. 45) is DENIED.

STANDARDS

Rule 30(e), which governs changes to deposition transcripts, provides: 

(1) Review; Statement of Changes. On request by the deponent or a 

party before the deposition is completed, the deponent must be 

allowed 30 days after being notified by the officer that the 

transcript or recording is available in which: 

(A) to review the transcript or recording; and 

(B) if there are changes in form or substance, to sign a 

statement listing the changes and the reasons for making 

them.

Fed. R. Civ. P. 30(e). In addition to the procedural requirements of Rule 30(e), the Ninth Circuit 

extends the “sham affidavit” rule to deposition corrections, holding that Rule 30(e) deposition 

corrections cannot be used to create an issue of fact by contradicting prior deposition testimony. 

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PAGE 3 – OPINION AND ORDER

Hambleton Bros. Lumber Co. v. Balkin Enters., Inc., 397 F.3d 1217, 1225 (9th Cir. 2005). 

“Rule 30(e) is to be used for corrective, and not contradictory, changes.” Id. at 1226. To justify 

striking a deposition correction as a “sham,” however, the “inconsistency between a party’s 

deposition testimony and subsequent affidavit must be clear and unambiguous.” Yeager v. 

Bowlin, 693 F.3d 1076, 1080 (9th Cir. 2012) (discussing the sham affidavit rule).

When determining whether deposition corrections are a “sham” or otherwise intended to 

create an issue of fact for summary judgment, the timing of the deposition changes is 

informative. In Hambleton, the court affirmed the magistrate judge’s decision to strike an errata 

sheet as a sham and a violation of Rule 30(e) when the deposition occurred in late 2001, the 

defendants filed a motion for summary judgment in January 2002, and the plaintiffs submitted 

the deposition corrections in February 2002. Hambleton, 397 F.3d at 1223-24. The court 

indicated that the sequence of the deposition corrections, submitted after the motion for summary 

judgment was filed, was “seemingly tactical.” Id. at 1225. The court further noted that in 

addition to filing the corrections after the 30-day deadline, the plaintiffs omitted a statement in 

the errata sheet “explaining the corrections, despite the fact that the plain language of the Rule 

requires that a statement giving reasons for the corrections be included,” which was a second 

indication that the corrections were a “sham.” Id. at 1224. “A statement of reasons explaining 

corrections is an important component of errata submitted pursuant to [Rule] 30(e), because the 

statement permits an assessment concerning whether the alterations have a legitimate purpose.” 

Id. at 1224-25. Finally, the court acknowledged the magistrate judge’s legitimate concern 

regarding the “extensive nature” of the deposition corrections. Id. at 1225. 

DISCUSSION

There is no motion for summary judgment that is pending, and Plaintiff does not argue 

that Captain Eby’s changes are a “sham,” intended to create an issue of fact by contradicting 

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PAGE 4 – OPINION AND ORDER

prior deposition testimony. Instead, Plaintiff objects to the quantity and length of the corrections, 

arguing that Rule 30(e) does not allow a witness to supplement or clarify deposition responses, 

only to make “corrections.” In response, Defendant asserts that Captain Eby’s changes 

permissibly clarify or supplement his deposition testimony, and do not contradict it. Defendant 

notes that the Court has, in other cases, declined to strike deposition changes where the changes 

were not contradictory and the timing did not appear to be “tactical.” See, e.g., Int’l Longshore & 

Warehouse Union v. Port of Portland, 2014 WL 1343422, at *6-7 (D. Or. April 3, 2014).

The Court has reviewed Defendant’s corrections and finds that they are not inappropriate 

or otherwise in violation of Rule 30(e). They are not, however, to be used to “replace” the 

original testimony. Instead, the original deposition transcript as supplemented by Caption Eby’s 

three pages of corrections shall, as a whole, constitute the deposition of Captain Eby. Moreover, 

Plaintiff may, if relevant for impeachment or any other proper purpose, show any factfinder that 

these additions were made after the oral deposition of Captain Eby had concluded. 

CONCLUSION

Plaintiff’s Motion to Strike Deposition Changes by Defendant Clackamas County 

(Dkt. 45) is DENIED.

IT IS SO ORDERED.

DATED this 19th day of February, 2016.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge

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