This morning, Docket Navigator covered Judge Bryson's D. Del. discovery opinion that was made public this week, focusing on his denial of a motion to strike errata to a 30(b)(6) deposition transcript.
But there are (at least) three other interesting points about the errata in the opinion:
- COVID issues make deposition errata more necessary:
Mr. Rothrock had to prepare for his deposition under difficult circumstances, including having to consult remotely with others in the company. Mr. Rothrock understandably could have made a mistake during his deposition in light of the numerous topics and challenging circumstances in which he was forced to prepare. Given those circumstances, I will not disregard Mr. Rothrock’s errata.
- The Court noted that, as usual, the original testimony "will remain of record" and can be used "for impeachment or contradiction," although the Court did not address the mechanics of doing so with 30(b)(6) testimony.
- Judge Bryson granted hefty discovery on the correction, including three extra hours of deposition testimony on that topic, as well as an opportunity to revise expert reports, and access to defendants' source code relating to the correction.
The Court Also Addressed Two Other Notable Disputes
Refusal to Strike Late-Disclosed Spreadsheet
First, the Court declined to strike a late-produced damages spreadsheet, because it was made at the direction of attorneys after the close of discovery and produced immediately after it was made.
But the Court seemed to recognize that the data underlying the spreadsheet should have been produced earlier. The Court and ordered its immediate production and granted two three-hour depositions of relevant witnesses about the data.
Refusal to Strike Damages Report Relying on Previously Undisclosed Witness
The Court refused to strike portions of a damages report that relied on previously-undisclosed witness, because the witness had only become relevant after changes in position by the opposing party.
Interestingly, the Court also questioned whether an expert's reliance on information from a witness leads to a disclosure obligation at all:
It is by no means clear that Mr. Green’s reference in his damages report to his conversations with Mr. Carrico and Mr. Beattie constitute a “use” of Mr. Carrico and Mr. Beattie within the meaning of Rule 26(a)(1)(A)(i). The language of that provision was added to Rule 26 in 2000, and the purpose of the amendment was to narrow the broad disclosure requirement of the prior version of the rule. . . . [N]either the language of the rule nor the advisory committee’s note provides guidance as to whether the initial disclosure requirement applies to the identity of an employee of a party with whom the party’s expert consults during the preparation of the expert’s report.
Judge Bryson did not ultimately need to address the question, but he sure seemed to be leaning towards an outcome where an expert could rely on discussions with a witness who was never disclosed.
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