Beware the errata sheet!
The deposition is an invaluable tool in litigation not only as a means to discover the facts and arguments that may be used at trial, but also as a means of preserving a witness’ version of events against later recantations. But in practice, how final is a witness’ deposition testimony? The answer depends on whether the case is litigated in State or federal court. Depending on the jurisdiction, errata sheets may be used to substantively alter a witness’ or party’s deposition testimony. It is therefore essential for government lawyers to understand the ways in which opposing counsel may utilize subsequent alterations of deposition testimony, as well as the limitations on the use of errata sheets.
The following hypothetical illustrates the type of situation in which a government lawyer may find himself or herself when an opposing party seeks to retrospectively alter the substance of a witness’ original deposition testimony. Suzy, a skilled government defense lawyer, takes the deposition of the Plaintiff, who alleges that he was assaulted by a government employee. During the deposition, Suzy successfully obtains an admission by the Plaintiff that he did not actually see the person who assaulted him, does not specifically remember seeing the Defendant at the time of the assault, and cannot be sure that the Defendant was the person who assaulted him. At the end of the deposition, the Plaintiff reserves signature. Two months later, in his response to Suzy’s motion for summary judgment, the Plaintiff submits an errata sheet in which the Plaintiff adds testimony that although he did not see who assaulted him, he knows the assailant is the Defendant because a friend at the scene told the Plaintiff that he saw the Defendant’s name on the assailant’s uniform. This is the first time that the eyewitness statement has been mentioned. Suzy wants to move to strike the errata sheet changes from Plaintiff’s response, but is unsure of the extent to which Plaintiff is permitted to subsequently alter his deposition testimony under applicable law.
The answer to Suzy’s dilemma is simple if the Plaintiff brought his lawsuit in State court. Supreme Court Rule 207 governs subsequent changes to deposition transcripts.1 This rule allows deponents who have reserved signature to make corrections to their deposition transcript “based on errors in reporting or transcription.”2 Such alterations “will be entered upon the deposition with a statement by the deponent that the reporter erred in reporting or transcribing the answer or answers involved.”3 However, “[t]he deponent may not otherwise change either the form or substance of his answers.”4 Therefore, under Rule 207, Suzy should be successful in her motion to strike Plaintiff’s errata sheet changes, because Plaintiff’s proposed changes were clearly substantive in nature.5
Suzy may also move to strike the errata sheet on the basis that the changes were untimely. Under Rule 207, once the court reporter has made the transcript available for the deponent’s review, the deponent has only 28 days in which to review the transcript and submit changes.6 Therefore, if Plaintiff’s errata sheet was submitted after this 28 day period, the court should not accept the changes.7
The resolution of Suzy’s motion to strike is less clear if the Plaintiff’s lawsuit was filed in federal court. Rule 30(e) governs subsequent changes of deposition testimony in a federal case.8 This rule permits a deponent who reserved signature to review his deposition transcript and make changes “in form or substance.”9 If the deponent requests changes, the deponent must “sign a statement listing the changes and the reasons for making them.”10
Although Rule 30 allows a deponent to substantively change his or her deposition testimony, this right is not without limit. In regard to a deponent’s subsequent alterations of substantive deposition testimony, the Seventh Circuit has held, “a change of substance which actually contradicts the transcript is impermissible unless it can plausibly be represented as the correction of an error in the transcription, such as dropping a ‘not.’”11 The Seventh Circuit noted that the original version of the transcript must be retained “so that the trier of fact can evaluate the honesty of the alteration” in determining whether the substantive correction should be permitted.12 Suzy is likely to win on her motion to strike if she convinces the federal court that the Plaintiff’s requested change in testimony—that he knows that it was Defendant who assaulted him—contradicts Plaintiff’s original deposition testimony that he cannot be sure who attacked him.
As under State law, the Federal Rules of Civil Procedure limit the time period within which a deponent may submit an errata sheet. Under the federal rules, a deponent must submit any changes to his deposition transcript within 30 days of being notified by the court reporter that the transcript is available for review.13 At least one court within the Seventh Circuit has strictly construed this time limit, finding that a deponent’s 30 days begins to run at the time the transcript is submitted to the deponent’s attorney, regardless of when the attorney actually submits the transcript to the deponent.14 Furthermore, Rule 30’s requirement that the court reporter make the transcript “available” to the deponent is satisfied when the court reporter notifies the deponent that he may come to her office to review the transcript; the court reporter is not required to send the deponent a copy of the transcript.15 In other words, the deponent’s 30-day time period begins to run as soon as he receives the court reporter’s notification that the transcript may be reviewed at the court reporter’s office.16
Suzy has an additional ground to support her motion to strike. Suzy may argue that Plaintiff’s errata sheet should be stricken because it is an improper attempt to create an issue of fact to defeat summary judgment. As a general rule, a party opposing summary judgment is not permitted to submit a contradictory affidavit to create an issue of fact.17 This rule has been extended to prohibit the submission of errata sheets that substantively change deposition testimony in an attempt to create a question of law to defeat a motion for summary judgment.18 Suzy should note, however, that there are two limited exceptions to this general rule: a contradictory affidavit may be submitted in response to a motion for summary judgment if the contradictory affidavit clarifies ambiguous deposition testimony or includes newly discovered evidence.19 Newly discovery evidence is limited to evidence that could not have been discovered through the use of due diligence prior the deponent’s deposition.20
Finally, even if Suzy’s motion to strike is denied, the court accepts Plaintiff’s errata sheet, and the case proceeds to trial, Suzy will likely still be permitted to impeach the Plaintiff using his unamended deposition transcript.21 Government lawyers can use all the rules and case law available to limit the ability of a witness to recant deposition testimony. ■