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  • Shelly Albaum

Elysium Corrects Depositions in California

But the whole thing is sealed, so we don't know much about it.

After you take a deposition, Federal Rule of Civil Procedure (FRCP) 30(e) gives the witness 30 days to review the transcript and make corrections:

The general idea is that if the Court reporter didn't hear you correctly, or you misspoke, you have a chance to make what are essentially transcription errors. But the rule isn't very specific about what changes can be made and why, so this gets litigated. -- whether you can make changes outside the 30-day period, and whether even within the 30-day period you can make changes so substantive that they alter the testimony.

Here is what a real-life corrections sheet looks like:

Here is how one federal appeals court explained the purpose and misuse of errata sheets:

The purpose of Rule 30(e) is obvious. Should the reporter make a substantive error, i.e., he reported “yes” but I said “no,” or a formal error, i.e., he reported the name to be “Lawrence Smith” but the proper name is “Laurence Smith,” then corrections by the deponent would be in order. The Rule cannot be interpreted to allow one to alter what was said under oath. If that were the case, one could merely answer the questions with no thought at all then return home and plan artful responses. Depositions differ from interrogatories in that regard. A deposition is not a take home examination. (emphasis added).

Over 200 federal courts have echoed that admonishment that "a deposition is not a take home examination".

So it was surprising to see this week Elysium submit to the federal court in California proposed corrections to depositions that were taken almost two years ago. This kind of change isn't governed by Rule 30(e), but it seems to me like it eviscerates Rule 30(e) to allow substantive changes after the 30-day period.

On March 27, 2019, and March 29, 2019, Eric Marcotulli and Dan Alminana were deposed for perhaps seven hours each. We have nearly the full transcript of the Marcotulli deposition, and a few fragments of the Alminana deposition, like this one and Exhibit 70 in this file.

Whatever was in these depositions was certainly intriguing, and generated a great deal of controversy, as well as a motion in limine (to exclude evidence). ChromaDex's court filings in 2019 include descriptions like this:

Marcotulli's and Alminana's bald-faced lies under oath about [REDACTED] bear directly on their truthfulness, especially when the case will turn on whether and how much the jury trusts their testimony. And while this evidence -- the only of its kind and import in this case -- is certainly devastating for Defendants' claims and defenses, it is not unfairly prejudicial. What would be unfair is for Elysium to present Marcotulli and Alminana as truthful witnesses and corporate executives with nothing to hide, while depriving ChromaDex of the opportunity to expose their lies... Displaying a gift for understated euphemism, Defendants seek exclusion of "Personal Conduct Evidence" directly relevant to the credibility, memory, perception, and bias of two trial witnesses whose testimony they have made essential to their claims and defenses: Eric Marcotulli (Elysium's CEO) and Dan Alminana (Elysium's COO). In their Motion, Defendants elide that this evidence -- in the form of text messages that Elysium willingly produced during this litigation from the mobile phones of both Marcotulli and Alminana -- unambiguously shows [REDACTED].

The relevance of this evidence is plain: [REDACTED]. On or around specific and critical dates, conversations, and events where the facts about what was said or what actually happened are fiercely disputed, and for which the jury will be required to decide between [REDACTED] word and the word of ChromaDex witnesses. Evidence showing that [REACTED] ability to observe, remember, and narrate key events was impaired is vital for the jury to understand and consider.

But that is not all. When ChromaDex rightfully inquired into the possible effect that [REDACTED], both Marcotulli and Alminana brazenly lied under oath at their depositions in an effort to conceal what they knew was highly damaging evidence for Elysium. [REDACTED's] lies, and his disdain for the judicial process, are so shameless and incredible that they must be seen to be fully appreciated. For that reason, ChromaDex has lodged with the Court a video file with clips of his testimony to allow the Court to directly observe his unapologetic attitude and demeanor and hear his perjurious answers... (emphasis added)

It goes on.

But it has not been clear whether we would ever get to see the testimony in question. It is redacted in those document fragments and briefs that we can see, and the 2019 motion to exclude evidence was never ruled on. Judge Carney told the parties earlier this year that he didn't want to see any motions in limine before the trial, and Elysium has said it was going to so move nonetheless.

So about a week ago, on December 11, 2020, Elysium filed declarations from both Marcotulli and Alminana that purport to correct errors in their 2019 depositions. We can't see the original testimony or the corrections because it's all redacted.

Elysium does not seem to have requested permission to make the corrections, but did ask permission to file the corrections under seal (redacted). In Elysium's brief requesting sealed treatment, Elysium describes the situation thus:

Mr. Marcotulli’s deposition in this action took place on March 27, 2019. Mr. Alminana’s deposition was on March 29, 2019. Prior to their depositions, and without their knowledge or consent, Elysium’s prior counsel, Baker & Hostetler LLP (“Baker”), inadvertently produced spreadsheets containing the complete message history of the cell phone that Mr. Marcotulli used between 2012 and 2017 for both personal and business matters, as well as the entire message contents of two cell phones used by Mr. Alminana.

At the time of their depositions, Mr. Marcotulli and Mr. Alminana each expected to answer questions regarding the subject matter of the above-captioned case – specifically, questions relating to Elysium’s contracts with ChromaDex, including negotiations and performance of those contracts; patent issues; and trade secret allegations. (Marcotulli Decl., ¶5; Alminana Decl., ¶5.) At his deposition, however, Mr. Marcotulli was presented with certain text messages concerning highly sensitive aspects of his personal life. (Marcotulli Decl., ¶¶5-6.) Mr. Marcotulli was caught by surprise, unprepared, and embarrassed. (Id.) Consequently, and regrettably, he gave answers that require correction. (Id.) During Mr. Alminana’s deposition, in the midst of a line of questions about the development of Elysium and its product Basis, Mr. Alminana was asked suddenly about certain highly sensitive aspects of Mr. Marcotulli’s personal life. (Alminana Decl., ¶¶5-6.) Mr. Alminana was likewise caught by surprise and unprepared. (Id.) He too regrettably gave answers that require correction. (Id.) Mr. Marcotulli and Mr. Alminana have each signed a Declaration setting forth changes and corrections to their respective deposition testimony. (Marcotulli Decl., ¶¶6-13; Alminana Decl., ¶¶6-8.) Significantly, both Mr. Marcotulli and Mr. Alminana provided truthful and accurate testimony regarding the substantive issues in the case.

ChromaDex, predictably, does not think that the depositions should be corrected or sealed. In its opposition brief, ChromaDex writes,

...Now, twenty-one months later, Marcotulli and Alminana have filed extraordinary declarations with this Court in which they [REDACTED]. The issue before the Court is whether those declarations should be sealed and hidden from the public. There is no basis for secrecy here, and the application to seal should be denied...

Defendants do not provide compelling reasons to seal the Marcotulli and Alminana declarations. The only justification offered is that the [REDACTED] concerns “Mr. Marcotulli’s personal life.” (Dkt. 454 at 4.) That is wrong, as Mr. Marcotulli’s own declaration makes clear. His [REDACTED] and the evidence from which it arises intersect with events at issue in this case, including his work as Elysium’s CEO, his interactions with ChromaDex (the circumstances of which are in dispute), and his credibility, memory, perception, and bias. All of this was exhaustively catalogued in ChromaDex’s Opposition to Defendants’ Motion in Limine regarding evidence of the underlying [REDACTED] and the subsequent [REDACTED], which at the time Elysium neither admitted nor corrected despite having ample opportunity to do so. (Dkt. 284-1 at 3–11.)...

Elysium filed a Reply Brief reasserting that the redaction issue should be resolved with the future motion in limine, not before:

ChromaDex does not articulate any reason or basis for deciding now – in advance of this Court’s decision on the forthcoming motion in limine – that this highly inflammatory and personal information must be filed publicly, other than its transparent desire to embarrass an adversary. Elysium and Mr. Morris request only that the Court grant sealing until it has resolved the relevance and admissibility questions on a complete record in the context of the motion in limine...If this Court determines that Mr. Marcotulli’s private issues are relevant and admissible, then ChromaDex may make any arguments it might have about the supposed delay in correcting the record. But any such delay has no bearing on the determination of whether to seal the Marcotulli and Alminana Declarations, which will not, in fact, be at issue until this Court hears and decides the motion in limine.

Judge Carney allowed the two declarations to be filed under seal.

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