S.D. Ga.

Motion to Strike Errata Changes Gets Detailed Treatment in Southern District

Jekyll Island-State Park Authority v. Polygroup Macau Limited, Civil Action No. 2:21-cv-00008-LGW-BWC (S. D. Ga., Feb. 14, 2023)

Magistrate Judge Benjamin Cheesbro allowed a Defendant to make “untimely,” “contradictory, and substantive changes” to deposition testimony under Rule 30(e) while simultaneously maintaining its discretion to disregard any such changes in a motion to dismiss and keeping all original answers in the record.

This case originates from a trademark dispute between the Jekyll Island-State Park Authority and Polygroup Macau Limited.  For over three decades, Plaintiff has operated the Summer Waves Water Park, an 11-acre water park located on Jekyll Island. Jekyll Island-State Park Authority v. Polygroup Macau Ltd. C.A No. 2:21-cv-00008-LGW-BWC (“Jekyll Island”), Dkt. 1 at 4 (S.D. Ga. Jan. 22, 2021). The water park’s attractions include water slides, lazy rivers, inflatable toys and tubes, and branded merchandise. Id. Plaintiff registered the mark SUMMER WAVES in 1990 for entertainment services under Class 41. Id. at 5. For over 20 years, Plaintiff has continuously operated a website and online store at http://www.summerwaves.com. Id. at 7.

Plaintiff’s domain name is central to the dispute. Plaintiff alleges that soon after Defendant’s rejected offer to purchase the domain name, Plaintiff learned Defendant had obtained without authorization three trademark registrations for SUMMER WAVES for inflatables under Class 28. Id.

The Court’s recent Order relates to the Plaintiff’s Motion to Strike or Disregard the corporate representative’s errata sheet. The Plaintiff sought to strike the errata sheet in its entirety due to untimeliness, or, in the alternative, to strike or disregard individual changes. Jekyll Island, Dkt. 67 (S.D. Ga. Feb. 14, 2023).

Judge Cheesbro addressed two of the main arguments presented. First, the Order holds that two days is not too late, especially when the delay is excusable. Although “Rule 30(e) calls for strict compliance,” the Order maintains that “Courts are reluctant to strike an errata sheet solely based on untimeliness when the delay was only a few days.” Id. at 3 (citing Travelers Indem. Co. of Conn. v. Att’y’s Title Ins. Fund, Inc., 2016 WL 866368, at *2, 4 (M.D. Fla. Mar. 7, 2016).  Additionally, the Court found the “minor” delay excusable, especially in the absence of any cognizable prejudice or tactical advantage. Id.

Second, the Judge deemed only one of the nine challenged changes improper. For the stricken one, the Plaintiff successfully challenged the change because the representative provided no reasoning for it. The other eight, however, were not so simple. On these, the parties clashed about the proper legal standard permissible under Rule 30(e). Although they agreed with the majority of Eleventh Circuit district courts that permit “broad,” “lenient,” and “flexible” application of Rule 30(e) substantive changes, they disagreed about whether substantive changes may contradict prior testimony.

In his order, Judge Cheesbro stated, “while the law is not well-settled on this point, the more compelling authority supports allowing substantive errata changes—even when the changes contradict prior testimony,” but he cautioned against abuse. Jekyll Island, Dkt. 67 at 7.

“To be clear, although substantive, contradictory errata changes are generally “permissible”—meaning not in violation of Rule 30(e)—litigants and deponents are strongly discouraged from abusing the errata mechanism. Courts have often expressed disfavor for extensive, contradictory, and supplemental errata changes and recognize the challenges such changes can create. In some circumstances, abuse of the errata mechanism may be so severe as to warrant sanctions.”

Jekyll Island, Dkt. 67 at 8

In brief, Judge Cheesbro permitted all but one of the representative’s untimely, substantive, and contradictory errata changes to his deposition testimony, but kept the original answers in the record. Further, the Judge maintained the right to disregard any of those changes when ruling on the Defendant’s pending motion to dismiss.

In view of the acknowledged split in authority, this ruling suggests that substantive, contradictory errata changes are permissible under Rule 30(e) in the Eleventh Circuit.

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