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Greer v. Pacific Gas and Electric Co.

United States District Court, E.D. California

June 1, 2017

BECKY GREER, TIMOTHY C. BUDNIK, ROSARIO SAENZ, IAN CARTY, HALEY MARKWITH, and MARIA GARCIA PESINA, individually and as class representatives, Plaintiffs,
v.
PACIFIC GAS AND ELECTRIC COMPANY, DOES 1 through 10, inclusive, and IBEW LOCAL 1245, Defendants.

          ORDER RE: MOTION TO STRIKE DEPOSITION ERRATA SHEETS (ECF NO. 148)

         On April 28, 2017, Plaintiffs filed a Motion to Strike Deposition Transcript Changes and Errata Sheets. (ECF No. 144.) The Court ordered the Motion to be briefed on a modified briefing schedule and both Defendants filed opposition briefs. (ECF Nos. 158, 160.) Plaintiffs filed a reply on May 17, 2017. (ECF No. 164.) Pursuant to Local Rule 230(g), the Court determined that the Motion was suitable for decision without oral argument.

         Plaintiffs' Motion asks the Court to strike errata sheets including a number of changes to deposition testimony for nine witnesses.[1] In particular, Plaintiffs object to errata sheets submitted following the depositions of: Defendant Pacific Gas and Electric's (“PG&E”) witnesses Chris Diamond, Jesica Ishibashi, and Robert Joga; and Defendant IBEW Local 1245 (“IBEW”) witnesses Arlene Edwards, Ed Dwyer, Ken Ball, Jennifer Gray, Graciela Nuñez Clark, and Jennifer Marston. After the depositions of each of these witnesses, Defendants submitted errata sheets changing many of the answers the witnesses had offered in deposition. Plaintiffs contend that these changes substantially altered the testimony at issue and were made for strategic litigation reasons, rather than to correct transcription errors or for other valid purposes.

         The Court has reviewed the briefing and the proposed changes and agrees with Plaintiffs. Defendants' proposed “errata” to their depositions are not proper corrections falling within Rule 30(e). Rather, they are attempts to substantively alter deposition testimony on critical issues of fact in order to improve Defendants' position in upcoming motions for summary judgment and class certification. Plaintiffs' Motion will thus be GRANTED.

         I. BACKGROUND

         This case is currently proceeding on the Third Amended Complaint (the “TAC”). (ECF No. 105.) The TAC alleges that Plaintiffs worked for Defendant PG&E in Customer Service Representative I (“SR I”) positions at PG&E's Customer Contact Centers in California. SR I employees at contact centers provide customer service assistance by phone. PG&E also maintains a number of local offices throughout the state, in which employees provide customer service assistance in person.

         As SR I employees, Plaintiffs' wage rates were governed, in part, by a collective bargaining agreement between PG&E and the International Brotherhood of Electrical Workers (the “CBA”). Under the terms of the CBA, Customer Service Representatives received different wage rates depending on the amount of “directly related clerical job experience” they possessed.

         In November 2013, in response to a grievance related to the definition of “directly related clerical job experience, ” the Review Committee of the International Brotherhood of Electrical Workers issued a letter clarifying the application of the pay scale system. In particular, the letter explained that PG&E had been erroneously applying the system by defining “directly related clerical job experience” as only experience that had been obtained working as a Customer Service Representative at PG&E. Instead, the Review Committee found, PG&E should have considered customer service experience in call centers comparable to the work performed for PG&E.

         PG&E and IBEW began a joint review process to determine whether any existing employees would need to be reclassified based on the new understanding of the CBA's pay scale. Although the review process had at least two iterations and resulted in a settlement agreement that paid backpay to several other employees, Plaintiffs were not re-classified at the higher rate of pay. Plaintiffs filed suit on July 10, 2015, alleging that they should have been re-classified.

         Over the course of the litigation, Plaintiffs have taken the depositions of a number of PG&E and IBEW witnesses. After each deposition, the parties submitted errata sheets containing “corrections” that purported to amend the testimony that had been provided at each deposition. Among the corrections, for example, Defendants asked that changes be made as follows:[2]

         PG&E WITNESS ROBERT JOGA

Q. And, in particular, 21052 is a classification-wide implication?[3]
A. Yes. I'd say it was both, actually-for all contact center SRIs.

(Deposition Transcript of Robert Joga 89:22-24, ECF No. 156-1 at pg. 346.)

Q. Understood. So 21052, in your understanding, would affect both the systemwide and classification-wide implication under 9.3A3?
A. Yes, for contact center SRIs.

(Id. at 90:7-10.)

         IBEW WITNESS KEN BALL

Q. Looking at Exhibit 18, Mr. Ball, can you tell me who the grievant is or grievants are?
A. IBEW Local 1245 in the classification of CSR, PTs, FTs - all effected - full-time, part-time - all effected, in the four call centers noted on the grievance.

         (Deposition Transcript of Ken Ball 45:1-5, ECF No. 156-3 at pg. 378.)

Q. And that's what you understand is when it says “all effected” in that classification, that means that the grievance applies to all the persons employed within the classification?
A. Yes, in the call centers noted.

(Id. at 52:18-22.)

         IBEW WITNESS ED DWYER

Q. At the time you reviewed the grievances in August of - or approximately of August of 2012, did you have any discussion with anyone as to whether or not it should include local office?
A. No, never had that discussion that I can recall.
Q. With anyone at any time?
A. No, not that I recall.

         (Deposition Transcript of Ed Dwyer 152:18-24, ECF No. 156-3 at pg. 1458.)

         IBEW WITNESS ARLENE EDWARDS

Q. And was there a discussion about whether or not there should be - that you should file a business manager grievance?
Mr. Pacheco: Objection. Vague and ambiguous.
The witness: There was discussion, but we decided not to because PG&E was going to reopen ...

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