United States District Court, E.D. California
BECKY GREER, TIMOTHY C. BUDNIK, ROSARIO SAENZ, IAN CARTY, HALEY MARKWITH, and MARIA GARCIA PESINA, individually and as class representatives, Plaintiffs,
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)
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.
Motion asks the Court to strike errata sheets including a
number of changes to deposition testimony for nine
witnesses. 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.
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.
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.
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.
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.
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:
WITNESS ROBERT JOGA
Q. And, in particular, 21052 is a classification-wide
A. Yes. I'd say it was both, actually-for all contact
(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
A. Yes, for contact center SRIs.
(Id. at 90:7-10.)
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.
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
A. Yes, in the call centers noted.
(Id. at 52:18-22.)
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
A. No, never had that discussion that I can recall.
Q. With anyone at any time?
A. No, not that I recall.
Transcript of Ed Dwyer 152:18-24, ECF No. 156-3 at pg. 1458.)
WITNESS ARLENE EDWARDS
Q. And was there a discussion about whether or not there
should be - that you should file a business manager
Mr. Pacheco: Objection. Vague and ambiguous.
The witness: There was discussion, but we decided not to
because PG&E was going to reopen ...