Virginia GOP Settles Copyright Lawsuit Brought By On-Line Publisher

Valerie Garner, publisher of the Roanoke Free Press website, has settled her copyright lawsuit against the Virginia Republican Party related to the unauthorized use of a photograph she took of Delegate Sam Rasoul.  This photograph was the subject of prior litigation between Garner and a political blogger who used the same photograph on his website.  In 2015, Judge Conrad issued an opinion denying the blogger's motion to dismiss based on the fair use doctrine.  The case settled shortly thereafter.  In the most recent case against the Virginia Republican Party, Garner alleged that the GOP use the same photograph in a campaign mailer, without her permission.  The GOP had filed a partial motion for summary judgment arguing that Garner was not entitled to statutory damages or attorney fees under the Copyright Act.  While that summary judgment motion was pending, the parties settled the case, for $9,000 and a promise not to use the photograph again, according to news reports.

To What Extent Can You Use Errata Sheets To Correct Testimony Under Rule 30(e)?

How many times have litigators said "the witness will read and sign the transcript" at the end of a deposition? But to what extent can a witness actually correct their testimony on an errata sheet?

In a recent decision, Judge Urbanski addressed the scope of the provision in the Federal Rule of Civil Procedure allowing for the reading, correction and signing of a deposition transcript.

This contract dispute involved ant-infested wooden pallets manufactured by plaintiff and sold to defendant.  The case was before the court on plaintiff's summary judgment motion and objection to defendant's errata sheets purporting to change the testimony of defendant's witnesses (including its 30(b)(6) witness) which were provided to plaintiff only days before the deadline to file dispositive motions.

Rule 30(e) provides that after a deposition transcript is prepared, the deponent is allowed 30 days "to review the transcript ... [and] if there are changes in form or substance, to sign a statement listing the changes and the reasons for making them."  This statement containing those changes is referred to as an "errata sheet."

As noted by Judge Urbanski, courts uniformly allow deponents to make minor form changes and corrections to transcription errors, but the Fourth Circuit has not addressed the outer scope of Rule 30(e) and thus there is a difference of opinion among lower courts regarding the ability to make more substantive changes to deposition testimony.

While the Court noted that there were two general lines of cases--the "traditional" and "modern" approach to Rule 30(e)--, the Court decided instead to adopt the "case-by-case approach" developed by the Third Circuit.

Under the traditional approach, deponents can made substantive--even contradictory--changes to prior testimony.  This permissive approach allows almost any change in an errata sheet, although both versions remain available for purposes of cross-examination.

In contrast, the modern approach interprets Rule 30(e) more narrowly and only allows for corrections for errors made by the court reporter.  One case, cited by the Court, explained that "[t]he Rule cannot be interpreted to allow one to alter what was said under oath.  If that were the case, one could merely answer the question with no thought at all, then return home and plan artful responses.... A deposition is not a take home examination." (quoting Trout v. First Energy Generation Corp., 339 F. App/x 560, 565 (6th Cir. 2009)).

After explaining these two approaches, Judge Urbanksi determined that the Court need not adopt either the permissive traditional approach or the narrow modern approach, because there was a third approach that best addresses the situation before the Court.

As explained by the Court, the Third Circuit's more flexible case-by-case approach "allows deponents to make necessary changes via Rule 30(e) without also 'generat[ing] from whole cloth a genuine issue of material fact (or eliminate[ing] the same) simply by re-tailoring sworn deposition testimony to his or her satisfaction.'" (quoting EBC Inc. v. Clark Bldg. Sys. Inc., 618 F.3d 258, 268 (3d Cir. 2010)).

The case-by-case approach is similar to the "sham affidavit" doctrine, which prevents a party from avoiding summary judgment by submitting an affidavit that contradicts prior testimony.  Similarly, under the Third Circuit's flexible approach to Rule 30(e), "the court has discretion to ignore errata sheets that propose 'substantive changes that materially contradict prior deposition testimony, if the party proffering the changes fails to provide sufficient justification.'"  Given that the Fourth Circuit has recognized the "sham affidavit" doctrine, Judge Urbanski reasoned that "the Third Circuit's case-by-case approach to Rule 30(e) best accounts for the facts presented here."

Applying this case-by-case approach, the Court determined that defendant's errata sheets should be ignored because they directly contradicted prior testimony, were submitted only days before the deadline for summary judgment motions, were supported by only perfunctory justifications and were focused on the very issues at stake in the summary judgment motion.  Thus, the Court held that "[a]bsent a more compelling justification for the abrupt change in testimony, the court will not allow [defendant] to use Rule 30(e) to inject new factual disputes into the summary judgment record that did not exist previously."

The Court went on to grant in part and deny in part the summary judgment motion, and reserved judgment on whether the errata sheet should be stricken for purposes of trial.  The Court concluded:

Further, as noted above, the court need not resolve the larger dispute about the proper scope of Rule 30(e) that has thus far divided courts in this circuit. In the situation presented here-where a party changes sworn testimony directly relevant to its potential liability mere days before the deadline for dispositive motions-the court is persuaded that Rule 30(e) does not allow parties to make substantive changes to deposition testimony in an effort to avoid an imminent motion for summary judgment.

Until the Fourth Circuit addresses the issue, Judge Urbanski's opinion will likely be cited in subsequent civil litigation to delineate the scope of errata sheets under Rule 30(e).  The Court's full opinion in Grottoes Pallet Company, Inc. v. Graham Packaging Plastic Products, Inc., 2016 WL 93869 (Jan. 7, 2016) is available here.

Judge Wilson Dismisses Claim of Defectively Manufactured Tree Stand

In this Western District of Virginia products liability case, the plaintiff alleged he was injured in a fall from a defectively manufactured tree stand while hunting in Floyd County.  Plaintiff's expert claimed that the tree stand may have been defective because of inadvertent introduction of hydrogen into the steel during manufacturing, but both plaintiff's and defendant's experts agreed that there was not enough evidence for them to conclude with any confidence that this had occurred.  Plaintiff argued that his expert's opinion was not final and requested additional discovery, including discovery of third party manufacturers of the tree stand.  Judge Wilson, however, ruled that plaintiff already had adequate time for discovery and only recently asked for additional time to "finalize" expert opinions after defendant had deposed the expert and moved for summary judgment.  The Court stated: "Experts should not be moving targets whose opinions are constantly changing and being supplemented in order to overcome proper pretrial procedures."

The case is  Bambarger v. Ameristep Inc. No. 7:12cv280 (W.D. Va. Nov. 29, 2013) (Roanoke Division).

Summary Judgment Hearing On First Amendment Challenge To Charlottesville's Panhandling Ban

On Thursday, November 21, Judge Moon heard arguments on summary judgment motions in a case challenging Charlottesville's panhandling ban under the First Amendment.  Judge Moon had originally dismissed the case, but the Fourth Circuit reversed that decision in February.

The arguments during the summary judgment hearing focused on whether the City targeted a specific form of speech or whether the City regulated speech in a neutral way, and whether the ban was broader than reasonably necessary.  The ordinance bans panhandling within 50 feet of two vehicle crossings on the Downtown Mall.  The City justifies the ban as a content-neutral regulation that protects public safety.

The Daily Progress quotes Judge Moon as saying: "The way I see this case, frankly, is whether 50 feet, on either side is too much....  I thought the big problem would be the distraction to divers and the danger to pedestrians."

Counsel for the plaintiffs -- a group of homeless men who want to panhandle on the Downtown Mall -- argued "Panhandlers, for the most part, including my clients, sit passively with a sign along the walls of the Downtown Mall.  They don't stop people."

The attorney for the City of Charlottesville argued that the 50 foot ban was reasonable, especially given the other areas where panhandling is allowed: "What we are dealing with is 200 feet total ... on two crossings on a mall that is one-third of a mile long and 60 feet wide."

Judge Moon is not expected to rule for another two months.  Trial is scheduled in the Western District of Virginia for March 3, 2014.