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DTCI: What I really meant to say. . .

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DTCI-Ferguson-Audra By Audra
Ferguson-Allen

Imagine that you just completed a deposition. It was brilliant. The witness (the opposing party) admitted to all the key facts necessary for your summary judgment motion. On your way back to the office, you call the client to tell her the good news. The summary judgment motion in federal court is going to be a slam dunk, assuming the transcript reads as well as you remember. As luck would have it, it does. You file your motion for summary judgment. A couple of weeks later, the errata sheet arrives at your office. Not surprisingly, it contains spelling corrections and name corrections. However, you are shocked when the errata sheet also contains substantive changes along with lengthy explanations for several of the key responses. Rather than the key admissions, the witness has now tempered all his answers and even blatantly changed others. Your mind races to your beautifully written summary judgment motion. Can a deponent do this?

Not in the Indiana federal district courts. Although there is split among the federal circuits, the Seventh Circuit takes a “middle ground approach” and the Indiana district courts, applying that approach, have disallowed the “take home exam” theory of errata sheets, which can be particularly troublesome at the summary judgment stage.

The Rule – FRCP 30(e)(1)

Federal Rule of Civil Procedure 30(e)(1) provides as follows:

On request by the deponent or a party before the deposition is completed, the deponent must be allowed 30 days after being notified by the officer that the transcript or recording is available in which:

(A) to review the transcript or recording; and

(B) if there are changes in form or substance, to sign a statement listing the changes and the reasons for making them.

The Federal Courts Split in the Interpretation of FRCP 30

The decisions from the federal courts regarding the use of errata sheets are inconsistent and range from allowing any substantive changes to allowing only perfunctory changes. For instance, some federal courts allow a deponent to freely make any changes to the deposition transcript and will not second-guess the legitimacy of the change. See Reilly v. TXU Corp., 230 F.R.D. 486, 489 (N.D. Tex. 2005) (adopting a broad-view interpretation). To avoid potential abuse from such a liberal approach, most of those courts require that the original transcript and the modified transcript be maintained as part of the record. Id. at 490. This allows a jury to see both the original transcript and the modified transcript. The problem with this approach occurs at the dispositive motion stage. The testimony is no longer an unequivocal admission but rather creates a material issue of fact. This approach has been adopted by courts in the Second Circuit. See In re Probate Proceeding Will of Mancuso, 764 N.Y.S.2d 800, 804-805 (N.Y. Sur. 2003) (stating that where there is a dispute about whether a transcript is correct, the issue should go to the trier of fact). Accordingly, the change has destroyed your motion for summary judgment.

At the other end of the spectrum, courts, recognizing the gather-and-preserve function of depositions, allow no substantive changes to a deposition transcript. Instead, only transcriptional errors may be corrected through an errata sheet. See Greenway v. International Paper Co., 144 F.R.D. 322, 325 (W.D. La. 1992). This approach (more or less) has been adopted by courts in the Ninth and Tenth Circuits.

The Seventh Circuit Takes a Middle Ground Approach

In the Seventh Circuit, summary judgment cannot be defeated by submission of conflicting, postdeposition affidavits. Piscione v. Ernst & Young, L.L.P., 171 F.3d 527, 532 (7th Cir. 1999). However, can a party get around this prohibition by submitting an errata sheet “correcting” or “explaining” unfavorable testimony?

To some extent yes, as a deponent may change his deposition from what he said to what he meant to say. Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383, 389 (7th Cir. 2000). However, while broad on its face, this permission is limited such that “a change in substance which actually contradicts the transcript is impermissible unless it can plausibly be represented as the correction of an error in transcription, such as dropping a ‘not.’” Id. Despite this admonition, as discussed below, various litigants have argued (to little avail) that Thorn permits broad, substantive changes through use of errata sheets.

Indiana District Courts Do Not Allow Deponents to Use Errata Sheets to “Undo” Testimony

Indiana district courts have had an opportunity to rule on whether an errata sheet may be used to alter a deponent’s substantive testimony. The district courts have uniformly held that an errata sheet may not be used to alter unfavorable testimony to create an issue of fact. Some examples follow here.

Judge Larry J. McKinney, in the Southern District of Indiana, struck an errata sheet that contained changes that the court considered “really no more than ‘lawyers’ statements,’ attempting to deflect potentially detrimental testimony.” During a deposition, a 30(b)(6) deponent testified that shareholders incurred the loss. The errata sheet, however, drastically changed the deponent’s testimony to state that the company, not the shareholders, incurred the loss. Paul Harris Stores, Inc. v. Pricewaterhousecoopers, LLP, No. 1:02-cv-1014, 2006 WL 2644935 (S.D. Ind. Sept. 14, 2006). The court refused to allow the “substantive” change to defeat a motion for summary judgment.

Judge Sarah Evans Barker also refused to allow errata sheet changes that sought to “undo” unfavorable testimony. Again, a deponent attempted to change the deposition testimony of a company’s 30(b)(6) witness regarding the types of damage that may constitute “property damage.” As often happens, the witness seeking to make the change argued that the errata sheet was merely submitted to clarify an answer to an ambiguous question. Judge Barker disagreed and found that the deponent was actually seeking to change the company’s testimony. Trinity Homes LLC v. Ohio Cas. Ins. Co., No. 1:04-cv-1920, 2009 WL 3163108 (S.D. Ind. Sept. 25, 2009). Accordingly, the “clarified answer” could not be used to defeat a motion for summary judgment.

In a recent opinion issued by the Northern District of Indiana, the court, refusing to allow broad substantive changes to the plaintiff’s testimony via an errata sheet, explained the types of changes allowed in the Seventh Circuit. Treat v. Tom Kelley Buick Pontiac GMC, Inc., Civ. No. 1:08-cv-173, 2010 WL 1779911, at *6-8 (N.D. Ind. Apr. 30, 2010). The plaintiff had made various employment claims against her previous employer. During her deposition, she was asked, “Did you ever go to the dealership and set up an appointment [with Mr. Kelley].” Plaintiff responded, “No.” In her errata sheet, plaintiff sought to unilaterally expand upon this answer by changing her testimony to reflect the following answer:

However, I did call Gary Patterson and conferenced in Mr. Kelley’s assistant on the phone, Maureen Klausen and we discussed all the issues I had. Gary Patterson called me back at a later date and told me that Mr. Kelley would not change the decision to fire me based on my complaints. I did try to contact Mr. Kelley several times after that by telephone, and would leave messages.

Plaintiff also sought to change her response to the question why she was paid less than she thought she deserved. In her deposition, the plaintiff responded that she was paid less money so her manager could make more money. Again, the plaintiff’s errata sheet sought to drastically change her deposition response to the following:

I think he also did this because Mr. Henderson wanted me to look bad so that I could take the fall for his mistakes. The majority of the outstanding contracts in transit were due to contracts he entered without obtaining all the necessary information and providing the car on the spot. The majority of the contracts he entered took over 7 days. I feel he probably knew he could pin me for his mistakes and pay me less than my pay plan, and no one at Kelley would question him. I think Mr. Henderson wanted to pay me less because he didn’t want to share his pay equally with a woman, that he felt he was superior to me and did not have to treat me fairly or equally.

Not surprisingly, the defendant argued that the newly expanded responses via errata sheet were impermissible and sought to strike the errata sheet. Citing Thorn, the plaintiff argued that the Seventh Circuit allows substantive changes and the only remedy is to retain the original transcript for the jury. In granting the motion to strike, the court resurrected the limiting language in Thorn that permits only a change which “can plausibly be represented as the correction of an error in transcription, such as dropping a ‘not.’” Moreover, the court noted that plaintiff failed to provide any reasons to support the errata sheet changes. Treat v. Tom Kelley Buick Pontiac GMC, Inc., Civ., 2010 WL 1779911 (N.D. Ind. Apr. 30, 2010).

In Effect, Indiana District Courts Will Not Allow a Deposition to Transform into a “Take-Home Exam”

Although it has been argued that the Seventh Circuit allows substantive changes in errata sheets, the Indiana district courts refuse to allow errata sheet changes to “undo” the original, substantive testimony. Instead, Indiana follows a middle-ground approach and disallows errata sheet changes to contradict deposition testimony. At the summary judgment stage, a middle-ground approach seeks to avoid unfair “surprise” when an opposition to summary judgment is accompanied with an errata sheet containing substantive changes. By allowing only changes based on mistakes in transcription (or perhaps inadvertent slips of the tongue), the Indiana district courts avoid the “take home examination” results that could ensue from broad substantive changes. If this were not the case, a witness (or, more likely, the attorney) could answer the deposition questions with little preparation and “then return home and plan artful responses.” See Greenway, 144 F.R.D. at 323. Interpreting Rule 30(e) broadly actually discourages truthfulness. Depositions would have very little meaning and effect (but would rather merge with the interrogatory device) if the witness could change answers with the assistance of counsel and upon further reflection. Indiana district courts seem to realize the potential issues and limit those changes to errors in transcription and those errors that do not contradict the deposition testimony.

Practical Tips

If you receive an errata sheet, confirm that it is received timely. Courts strictly enforce the thirty-day requirement noting that it prevents abuse and surprise. Bullock-Banks v. Indiana Am. Water Co., No. 1:03-cv-1459, 2005 WL 1126839, at *5 (S.D. Ind. May 12, 2005) (granting defendant’s motion to disallow the untimely errata sheet changes). Errata sheets submitted after thirty days cannot be used as evidence. Id. Also, review the errata sheet and ensure that all changes are accompanied by a “statement of reasons for making them.” Id. A reason must be stated, although the reason “need not be convincing.” Duff v. Lobdell-Emery Mfg. Co., 926 F. Supp. 799, 803-804 (N.D. Ind. 1996). The court will strike an errata sheet that fails to provide a reason for the changes.

If you are the party submitting an errata sheet, think strategically about whether the change should be submitted. A change may actually draw attention to a weak area. The Seventh Circuit noted that “an attempt to change the substance may actually backfire by turning the opposing party’s attention to a passage that would otherwise have been dismissed by the trier of fact as terminally muddled.” Thorn, 207 F.3d at 389.

Finally, avoid the potential for prejudice by scheduling the depositions several months before the summary judgment deadline. All too often, depositions are scheduled on the eve of the dispositive motion deadline. This leaves no choice but to file a summary judgment motion before the thirty-day period in which to file the errata sheet has elapsed. Thus, a party is left in the vulnerable position of having to file a summary judgment motion with the chance that an errata sheet will be used as an exhibit in opposing summary judgment. If depositions are scheduled well in advance of summary judgment, the parties can know all the changes and potential problems before filing the motion for summary judgment.

As always, if you are practicing in other jurisdictions, check the local rules and precedent.•
____________
 

Ms. Ferguson-Allen is an associate in the Indianapolis office of IceMiller and is a member of the DTCI’s Trial Tactics Section. The opinions expressed in this article are those of the author.

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  1. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

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

  3. 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.

  4. 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

  5. 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.

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