BOSTON (Legal Newsline) - A former property manager who tried to change deposition testimony that contradicted her claims lost a bid to revive her overtime lawsuit, a Massachusetts appeals court ruled this month.
The decision also upheld the decertification of a proposed class action on behalf of other managers, because the claims of the lead plaintiffs fell apart.
Siew-Mey Tam sued Federal Management Co. in 2013, alleging a variety of labor law violations including failing to pay her overtime. A second manager joined the case and in 2015 a judge certified the case as a class action on behalf of other employees.
Tam’s case ran into trouble in 2016, when Federal Management’s lawyers questioned her in a deposition and she made a number of admissions that undercut her initial claim that she wasn’t a managerial employee exempt from overtime regulations. Her pay exceeded the $455-per-week minimum for overtime, after which eligibility for extra pay depends upon job duties including the ability to exercise independent judgment.
After the case was certified, a second judge dismissed the lawsuits, based upon Tam’s deposition and the statute of limitations. The Massachusetts Appeals Court agreed, dismissing Tam’s case and rejected her lawyers’ attempt to restart the class action with another lead plaintiff. The court also ordered her lawyers to pay some $4,000 in costs associated with the depositions.
Tam offered “lawyerly statements” at first to support her claims, the appeals court said, but under closer questioning she admitted to facts that were the opposite of what she had initially said. Based on her testimony, the court concluded there was “no material dispute” over whether she was an exempt managerial employee.
Confronted with her troubling testimony, Tam’s lawyers waited nearly a year and then submitted “errata” statements that attempted to make her answers less contradictory. In them, “Tam sought to change a `no’ answer to `yes’ (or vice versa) over sixty times,” the court said.
The “false affidavit rule” generally prohibits lawyers from changing the deposition testimony of their clients. But Massachusetts’ highest court has ruled that plaintiffs can submit significant changes to their testimony, even if they contradict what they said earlier. But the changes must be made in good faith and accompanied by an explanation with reasons for the changes. Also, the original answers remain in the record and the defense attorney can reopen questioning to probe why the changes are legitimate.
For forty-six changes, the errata sheet stated that Tam misunderstood, or was confused by, the question. The court noted that nothing in the record suggested she was actually confused. Her claim she had a poor understanding of English was belied by the fact she formerly taught English as a second language, the court said. But more damaging was the fact Tam didn’t submit her changes within a 30-day deadline after receiving the deposition transcript. The court rejected her argument that because the deposition had been suspended, not completed, the deadline hadn’t started to run.
“Where a deponent seeks to exercise her ability to amend --indeed, contradict --her sworn testimony, it obviously makes sense to require her to do so promptly, so that the litigation can proceed in orderly fashion,” the appeals court ruled.
Federal Management sought double the $4,500 in costs as a penalty for her lawyers’ behavior but the court refused.
“Although some of Tam's arguments come close, we ultimately conclude that Tam's arguments were not so devoid of merit to warrant such sanctions,” the court concluded.