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DTCI: Errata sheets and the deposition hallows

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By Emily D. Smith
 

emily smith Smith

The deposition process is one of the most important tools to clarify legal issues and to discover or confirm essential facts. A deposition allows counsel to gather information in a setting where the opposing attorney is unable to filter, influence or help craft the responses. It offers an opportunity to gauge the demeanor of a witness and evaluate how that witness will present to a jury. In the best circumstances, a deposition can yield information fatal to an opponent’s theory of liability or defense. The examining attorney may leave a deposition armed with newly discovered information sufficient to support a dispositive motion, shore up a new defense, or contradict an opponent’s theory at trial. At the very least, depositions frequently alter the settlement value of a case.

Certainly, a deposition can be a powerful tool. But what if the completed deposition transcript is delivered to the examining attorney along with an errata sheet that substantively alters material deposition responses? What if the errata sheet directly contradicts the deposition testimony and alleges facts that are tailored to support the opponent’s case theory? Can a witness wave the errata sheet like a magic wand and make bad testimony disappear?

Errata sheet changes

An errata sheet is a separate paper inserted into a deposition transcript and sent to the deponent when the witness or counsel has requested an opportunity for the witness to review and sign the deposition. The transcript is commonly sent to the witness along with a blank errata sheet and minimal instructions directing the witness to use the errata sheet if she wants to change the transcript. The errata sheet does not indicate what types of changes can be made or when it is appropriate to alter the transcript. The witness has an opportunity to review the deposition transcript and to list changes and the reasons for them on the errata sheet before she signs and returns the transcript for seal and submission by the court reporter as an original.

On its face, the errata sheet permits a witness to make any manner of change – to form or substance – so long as the other requirements of the rules are met. Form changes include typographical or clerical errors, misspellings, or errors in the transcription. Substantive changes materially alter the testimony to say something new or different. The trial rules that govern depositions do not limit the type of change a witness can make before signing the deposition. Substantive changes may fundamentally alter the deposition such that it becomes inconsistent with the original transcript and defeats the fundamental purpose of the deposition process, namely, to discover the knowledge or experience of the witness.

Rule 30 and its progeny

In addition to the lack of instruction and limitation in the errata sheet form, no limitation in the trial rules exists as to what alterations can be made to the transcript or what reasons are appropriate. Indiana Rule of Trial Procedure 30(E)(2) provides, “If the witness desires to change any answer in the deposition submitted to him, each change, with a statement of the reason therefore, shall be made by the witness on a separate form provided by the officer.” A strict reading of Rule 30 would allow the witness to change any answer for any reason. Likewise, Federal Rule of Civil Procedure 30(e) is quite broad: “If requested by the deponent or a party before completion of the deposition, the deponent shall have 30 days after being notified by the officer that the transcript or recording is available in which to review the transcript or recording and, if there are changes in form or substance, to sign a statement reciting such changes and the reasons given.”

In light of the liberal rules, which changes are appropriate and under what circumstances? A deponent may, and indeed should, make any changes needed to correct form, spelling, or transcription mistakes. There are also times when a transcription error may reasonably necessitate a substantive change to the testimony; for example, if the court reporter left out a prefix like “un-” or missed a “not.” The key question is whether a deponent may give sworn testimony in a deposition and later substantively alter her answers even if the responses were accurately recorded. Both the Indiana state and Federal Rule 30 would seem to allow substantive changes, but the courts are split on whether this is permissible.

The majority rule – substantive changes are allowed

The majority of state courts, including Massachusetts, New York, Wyoming and Texas, do not limit the scope of changes a deponent can make to her deposition testimony, so long as the changes are timely and a reason is given. Those states reason that the trial rules do not limit the type of change a deponent can make to a transcript of her deposition. In addition, while the state and Federal Rule 30 require a reason for the change to be stated on the errata, there is no requirement that the reason be valid or even believable. The reasoning behind this rule is that depositions are often a stressful and confusing process for deponents, and they should have the opportunity to correct and clarify their answers where they believe they gave incorrect or incomplete responses.

Likewise, the majority of federal jurisdictions embrace a “plain language” reading of Federal Rule 30(e) and allow a deponent to make substantive changes without regard to the reasons. See, e.g., Lugtig v. Thomas, 89 F.R.D. 639, 652 (N.D. Ill. 1981); Hawthorne Partners v. AT&T Technologies, Inc., 831 F.Supp. 1398 (N.D. Ill. 1993) (“[a] witness can make changes that contradict the original answers, and the reasons given need not be convincing”). However, the courts that allow contradictory changes are sticklers for compliance with the technical requirements of the rule, namely, that some reason is given for every change and that the changes are submitted within 30 days from the time she receives the transcript. Id. Those courts often strike the offensive errata sheet for procedural defects.

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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  1. This guy sounds like the classic molester/manipulator.

  2. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  3. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  4. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  5. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

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