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DTCI: Errata sheets and the deposition hallows

March 28, 2012
The minority rule – a deponent may not alter what was said under oath

The minority rule applied in states such as Mississippi, Delaware, Kansas, Louisiana and Georgia is that testimony given under oath should not be altered. In those states, the only changes permitted on an errata sheet are those of form: typographical, spelling or transcription errors. The most frequently cited case espousing this rule notes that “a deposition is not a take home examination.” Greenway v. International Paper Co., 144 F.R.D. 322, 235 (W.D. La. 1992). The rationale for this rule is to prevent deponents from downplaying the deposition process because they can use the errata sheet to fix bad testimony later. “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.” Id. at 232.

In Greenway, the court struck an errata sheet where the plaintiff made 64 changes to his deposition testimony. Among the voluminous and wordy alterations he changed yes answers to no and vice versa, changed a correct response to I do not consider what you have said to be correct, and changed one answer from fifteen feet to eight feet. Id. at 323-25. Holding that Rule 30(e) does not allow a deponent to alter what he said under oath, the court struck the errata changes and also took a request for sanctions under advisement. Id. at 325.

There is no reported state court case in Indiana addressing the scope of Indiana’s Rule 30(E)(2). However, Indiana District courts and the 7th Circuit, interpreting Federal Rule 30(e), which specifically provides for “changes in form or substance,” have adopted a narrow application of the rule to allow for correction of transcription errors, including plausible form errors that change the substance of the testimony (such as dropping a not). Thorn v. Sunstrand Aerospace Corp., 207 F.3d 383, 389 (7th Cir. 2000); see also Treat v. Tom Kelley Buick Pontiac GMC, Inc., 710 F. Supp. 2d 777 (N.D. Ind. 2010) (citing Greenway, 144 F.R.D. at 235).

In the jurisdictions where substantive errata changes are disallowed, including the 7th Circuit, the law regards an errata sheet much like an affidavit filed to contradict or clarify deposition testimony. While there is no reported Indiana opinion on this issue, it is well settled in the state that “sham” affidavits are not permitted to contradict sworn testimony or to thwart an otherwise appropriate summary judgment. Gaboury v. Ireland Road Grace Brethren, Inc., 446 N.E.2d 1310, 1314 (Ind. 1983). “If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.” Id. A party who desires to exclude substantive errata changes may find it useful to analogize the errata sheet to a contradictory affidavit filed to avoid summary judgment.

Even where substantive changes are not permitted, there are some circumstances when a deponent may be permitted to alter deposition testimony. For example, if the testimony was confusing or ambiguous, the deponent may be permitted to clarify it. Cowan v. Prudential Insurance Company of America, 141 F.3d 751, 756 (7th Cir. 1998). Cowan was a sex discrimination claim wherein the plaintiff was deposed and listed three instances she claimed constituted sex discrimination or a hostile work environment. Id. Subsequently, she submitted an affidavit with some additional facts to support her claim. Id. The Cowan court allowed the affidavit because the deposition questions (asking for “anything else”) were somewhat confusing and the affidavit added to the testimony but did not contradict it. Id. In general, however, those jurisdictions do not permit a witness to alter deposition testimony in the absence of a transcription error.

Responding to an errata sheet with substantive material changes

When an errata sheet contains harmful substantive changes, the first line of defense is to attempt an informal resolution with opposing counsel. Contact the attorney and ask for the reasons behind the deposition changes. There may be a justifiable reason for the changes, such as confusion about the terminology or the identity of the parties. If the changes appear to be inappropriate, request that the attorney reconsider the errata changes and withdraw them.

If counsel or the witness is unwilling to withdraw the errata changes, consider whether it is more advantageous to strike the errata sheet or to use it at trial to show the inconsistencies to the jury. It may be preferable to confront the witness with the deposition and the errata changes at trial because an attempt to modify testimony implies guilty knowledge and draws the jury’s attention to crucial facts that might otherwise go unnoticed. If the changes are material and may defeat summary judgment or would be ineffective at trial, it may be better to file a motion to strike the errata sheet.

Procedural deficiencies are the best and most reliable way to strike an errata sheet. Confirm that the witness or counsel either requested to read and sign the deposition or declined to waive signature during the deposition. The rules also require the changes be submitted within 30 days of receipt of the transcript, and there must be a reason stated for each change.

If there is no procedural deficiency, counsel may move to strike the errata sheet on the basis of the inappropriate substantive changes. “When a party attempts to change the evidentiary record through contradictory errata sheets, [the] appropriate remedy is to order [the] errata changes ‘deleted,’ and to treat the transcript ‘as if the plaintiff refused to sign the deposition or has waived the signing of the deposition.’” Treat v. Tom Kelley Buick Pontiac GMC, Inc., 710 F. Supp. 2d 777, 790-91 (N.D. Ind. 2010).

Although there is no state court authority in Indiana directly interpreting Rule 30(E)(2), custom and practice in Indiana do not ordinarily permit substantive changes, and a motion to strike may be well taken. The broad language of the rule should not permit deponents to give sworn testimony and then substitute better answers on an errata sheet after consideration and consultation with counsel. An errata sheet is not a magic wand.•

Emily Smith is senior litigation counsel for GuideOne Insurance Co. and is a member of the Insurance Coverage Section of the DTCI. The opinions expressed in this article are those of the author.

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