• November 24, 2018

Updated post (November 14, 2018): The post below discusses whether a witness can change the substance of deposition testimony in a later-completed “errata sheet” (written corrections to prior oral testimony). We took the position that this is and should be permissible under normal circumstances (the right can obviously be abused), recognizing that there are some judicial decisions suggesting otherwise.

Recently, the U.S. District Court (D. Minn.) (Frank, J., presiding) (and U.S. Mag. Judge Thorson) went with our position. The court got it right. Charitably, in our view, the defense lawyers’ position opposing the corrections was what passes for “zealous advocacy” — not at all shameful or repugnant, but not all that flattering.

The order in Murphy v. Piper highlights other cynical defense tactics to class actions, as well: e.g., the grilling of named plaintiffs’ lack of knowledge as to the details of the case (often on the issue of remedies or damages). It is as if the defense lawyers take the position that litigants who are not their own lawyers are unfit to prosecute their lawsuits their lack of detailed knowledge of their cases — more “zealous advocacy.”

Original post (September 24, 2018): At the conclusion of a deposition recently, a lawyer (whom we’ll call “Lawyer A”) instructed the deponent that he, that is, the deponent, had the right to review the deposition transcript once the transcript was completed to identify and correct any errors in the transcript.

Lawyer A suggested that the deponent invoke his right to “read and sign,” as is commonly said. The deponent was uncertain as to what that meant.

Said Lawyer A: “That means that you can and should read the deposition transcript, keeping in mind that sometimes there are mistakes in the transcription. Also, if you misspoke (say, if you meant to say ’30 miles’ but you inadvertently said ’30 inches’), you would have the opportunity to clear that up, marking it down on the errata sheet.”

Said the adversary lawyer (let’s call this one “Lawyer Z”) (who took the deposition) (snarling with contempt (or so it seemed to Lawyer A)) : “That’s the 1,832nd thing that you and I disagree about in this case…Deponents are ONLY allowed to correct transcription errors, not properly transcribed testimony…Testimony under oath correctly transcribed….That, they cannot change…”

Who’s right?

Lawyer A is right. Lawyer Z is wrong. Lawyer A is reasonable. Lawyer Z is unreasonable.

This is not to say that one can use an errata sheet to commit perjury or to try to avoid perjury retroactively. That should go without saying. Similarly, one cannot use an errata sheet to fabricate an “issue of fact” where there otherwise appears no genuine issue of fact warranting a trial. See here (“We agree with the district court that [a party’s] effort to retrieve the situation by scratching out and recanting his original testimony does not weigh enough in the balance to create an issue of fact for a jury”).

But anyone can make an innocent misstatement or two and it is obviously inconsistent with the concept of justice to suggest that, by law, one must be bound by innocent misstatements in every instance.

Sometimes, however, lawyers and witnesses go way too far, taking liberties with errata sheets. As one court wrote:

No one’s memory is perfect. People forget things or get confused, and anyone can make an innocent misstatement or two. Or maybe even three or four. But not 868 of them. In this case, the plaintiff’s attorneys, …filed a sixty-three page errata sheet containing 868 attempted changes to their client’s deposition testimony, which was the sole source of evidentiary support for their client’s claims. The district court exercised its authority under 28 U.S.C. § 1927 to sanction the [Plaintiffs].

The applicable rule of civil procedure (e.g., Fed. R. Civ. P. 30(e)(1)(B)) expressly envisions the right to change “the substance” of deposition testimony. Furthermore, the “errata sheet” requires not only that the witness mark the error to be corrected, but also explain the change. Obviously, if the explanation is unsatisfactory or unbelievable, the court would be right to strike the “revised” testimony. Further, even if a change on the errata sheet is permitted, the original answer is still included and may be the basis for cross-examination at trial.

But, to be fair to Lawyer Z, some courts do seem to agree with his rigid position:

[A] change of 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.’

(See, also, here (“We…hold that Rule 30(e) is to be used for corrective, and not contradictory, changes”)).

Ultimately, the question in the headline of this post can only be answered, “It depends.” It cannot be answered definitively in a vacuum because the question is highly contextual.

The importance, however, in allowing for substantive changes to deposition testimony rather than having a bright-line prohibition is particularly critical given the confusing nature in English of negative questions (and the fact that many lawyers and people are human).

Consider this exchange:

Question: “You didn’t hear the horn, did you?”

Answer: “No.” [or “Yes.”]

This can mean, “No, I did hear the horn,” or it can mean, “No, you are correct. I didn’t.” The same is true for a “yes” answer. “Yes,” could mean, “Yes, I heard the horn,” or “Yes, you are correct, I didn’t.”

Experienced lawyers know to follow up and make sure witnesses’ answers are clear but inexperienced witnesses might not even notice how confusing (or incorrect) their answers are. It should be obvious that they will not have their cases thrown out of court simply because a deposition response was unclear or even simply wrong due to mis-speaking or misunderstanding.

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