Preventing Errors in the Errata Process

There are multiple schools of thought on the purpose of the deposition errata sheet. Some litigators believe a witness can use an errata sheet to correct typos and transcription errors only. Others adhere to the school that allows a witness to correct both transcription errors and to make substantive changes to his or her testimony. Given the importance of the Rule 30 deposition in the litigation process, knowing the permissible uses of the errata sheet is equally important to protect your witnesses and your case.

Specifics of Rule 30(e)

The deposition errata process is governed by Rule 30(e) of the Federal Rules of Civil Procedure. A few highlights of the rule:

• The deponent or party must reserve the right to read and sign the transcript before the deposition is completed. Rule 30(e)(1).
• The 30-day period in which to read and sign runs from the time of notification by the court reporter that the transcript is available. Rule 30(e)(1).
• Changes “in form or substance” must be listed in a signed statement, including the reasons for making the changes. Rule 30(e)(1)(B).

Changes “In Form or Substance”

The extent of the changes a witness can make depends largely on the jurisdiction in which the case is pending. If you are operating in a state court, it is important to know if and how the rules in that jurisdiction differ from Rule 30(e). While most states have adopted rules equivalent to Rule 30(e), a handful have not.

There are three established approaches governing the treatment and scope of errata sheets.

Traditional/broad approach. Under the traditional approach, a witness can include almost any change in his or her errata sheet, so long as it meets the procedural requirements of Rule 30(e). For example, a “no” answer can be changed to a “yes.” This approach is used by a majority of courts.

Modern/narrow approach. Under the modern approach, courts interpret Rule 30(e) narrowly. Changes noted on the errata sheet are limited to correcting transcription errors. As one court put it, “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. . . . A deposition is not a take home examination.” Greenway v. Int’l Paper Co., 144 F.R.D. 322, 325 (W.D. La. 1992).

Case-by-case approach. Under the case-by-case approach, courts consider both the nature and the timing of the changes to the errata sheet. For example, courts may reject changes offered close in time to the filing of dispositive motions if they materially contradict prior testimony.

The Reason for Making the Change

The reason given for a change should be specific and explain why the change was made. A one-word reason for a change, such as “correction” or “clarification” does not always satisfy the rule. Courts have held, for example, that changing a “no” answer to a “yes” requires more explanation than simply listing “correction” as a reason. Crawford v. Hare Mortg., LLC, 2006 U.S. Dist. LEXIS 47365, *1, *4 (S.D. Miss July 10, 2006). If the errata form provided by the court reporter does not have enough space to list a complete reason, make your own form to ensure compliance with the rule. Also, keep in mind that there is often a video record of depositions taken in today’s age. Accordingly, be sure that the reason you list for a change is supported by the video record.

Safeguards Against Abuse of the Errata Process

While most courts allow a witness to make substantive changes to a transcript, a witness’s ability to do so is not unfettered. The party taking the deposition has various avenues to challenge a witness’s errata sheet if the reason for a change is unsatisfactory.

Substantive material changes usually need to be corrective or clarifying of the original testimony. The errata sheet cannot be used, for example, to intentionally introduce an issue of fact into the case. Under the “sham affidavit doctrine,” courts will disregard the errata sheet “when they conclude that it constitutes an attempt to create a sham fact issue” in order to defeat summary judgment. Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986).

If the witness uses an exhibit to answer questions during the deposition, and there is no evidence that the witness was confused, substantive changes in the errata sheet generally will not be permitted. Courts have also not accepted excuses from witnesses—including limited language proficiency or the fact that it was the witness’s first deposition—to allow substantive changes, unless there is evidence that the witness was affected by these conditions at the time of the deposition.

The party taking the deposition may be able to reopen the examination if the changes on the errata sheet make the deposition incomplete or useless.

Finally, and most important to keep in mind, the original answers to the deposition will always remain a part of the record and can be used at trial. Accordingly, the witness should be prepared at trial to convincingly explain the change and the reason for it.

Takeaways

• Know the rules of the jurisdiction in which your case is pending.
• A majority of courts interpret Rule 30(e) to allow substantive changes, but there are limits to prevent abuse.
• The sham affidavit doctrine applies to prevent substantive changes made intentionally to overcome summary judgment.
• Substantive changes should be corrective and clarifying.
• The reason provided must explain why the change was made. One-word reasons will not always satisfy this requirement.
• The original answers to the deposition always remain a part of the record and can be used at trial.