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.
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.