By Emily D. 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.