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February 07, 2020 Practice Points

Pretrial Discovery Strategies: Defending Against a Deponent’s Errata Sheet Before, During, and After a Deposition

Understanding this important but often overlooked part of the deposition process is vital for new litigators.

By James D. Abrams and Devin M. Spencer

Federal Rule of Civil Procedure 30(e) permits a deponent to make changes to his or her prior sworn testimony through a written statement called an errata sheet. The relevant language of Fed. R. Civ. P. 30(e)(1) provides that a deponent may, within 30 days, “review the transcript ... [and] if there are changes in form or substance, to sign a statement listing the changes and the reasons for making them.” Defending attorneys generally should do three things to determine the best way to respond. First, review the errata sheet for procedural compliance with Rule 30(e) and move to strike it entirely if it does not conform to the rule’s requirements. Second, determine whether the errata sheet substantively changes the deponent’s prior sworn testimony or simply corrects typographical errors. Third, review and understand the court’s approach to errata sheets in your jurisdiction. Then, you are equipped to decide whether to reopen the deposition or move to strike the errata sheet.

The first defense against any errata sheet is to create a clear record in the deposition. Taking a deposition requires tedious preparation, and new litigators should consider what information they want to elicit from the witness when strategizing their questions. During the deposition, the attorney must frame questions clearly and in a way that does not leave them susceptible to objections, while also ensuring the witness’s answer is clear. If the witness’s testimony is unclear or vague, the witness may use an errata sheet to create a much different record, after the witness has had time to think about the case and talk to his or her attorney. It is also advisable to have the deposition video recorded, which will make it difficult for deponents to make substantive changes to their answers by claiming a transcription error.

If an errata sheet is indeed filed, the defending attorney should review the changes and proffered reasons first, to determine how best to respond. Depending upon the content of the errata sheet, the defending attorney may move to reopen the deposition or move to strike the errata sheet’s changes from the official deposition testimony. Litigants should consider disputing an errata sheet that fails to conform to the procedural requirements, such as failing to specify the page and line number of the testimony being corrected.

Defending litigants should then turn to the substantive changes to the transcript, while understanding their jurisdiction’s approach to errata sheets. Because courts interpret the phrase “in form or substance” differently, they are divided over the scope of permissible changes. The traditional approach permits substantive, sometimes even contradictory, changes to the deposition transcript. The modern approach strictly construes the rule and permits typographical corrections only, such as spelling errors. A minority of courts fall somewhere in the middle, further complicating this legal landscape.

In jurisdictions that follow the modern approach, the defending litigator may move to strike the errata sheet if the changes themselves go beyond simply correcting typographical errors or are substantive in any way. The reasons for the substantive changes usually do not need to be examined, as the modern approach prohibits all substantive changes, regardless of the proffered reason.

In jurisdictions where courts have adopted the traditional approach, both the changes and the reasons provided must be carefully considered. If the reasons are insufficient to justify the changes, it may be appropriate to move to strike the errata sheet or move to reopen the deposition to clarify the record.

It is also important to remember that an errata sheet does not remove the deponent’s original testimony, and that the trier of fact determines which answers to credit. Although reopening a deposition may be costlier and more inconvenient than moving to strike an errata sheet, it also creates an opportunity to attack a witness’s overall credibility. The deponent, after all, is admitting he or she needed a second round to give accurate answers. On the other hand, moving to reopen a deposition indicates some willingness to accept the errata sheet as part of the record. Whether reopening the deposition or moving to strike, the goal is to exploit any logical inconsistencies created by the new answers that can be resolved only by crediting the original answers.

New litigators who understand how to defend against an errata sheet before ever taking a deposition will be better prepared to fight back when a deponent tries to alter their testimony and will be well-equipped to create a clear, accurate record in their case.

James D. Abrams is a partner and Devin M. Spencer is an associate of Taft Stettinius & Hollister LLP, Columbus, Ohio.

Copyright © 2020, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).