All Things Errata

• Author: Brian A. Zemil
• Pages: 20-20

Published in Litigation News Volume 47, Number 2, Winter 2022. © 20 22 by the American Bar A ssociation. Repro duced with permissio n. All rights reser ved. This informati on or any portion the reof may not be copie d or disseminated in any

form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.

n most depositions, the deponent opts to “read and

sign” the transcript, invoking Federal Rule of Civil

Procedure 30(e). This rule allows the witness to make

“changes in form or substance” to his or her sworn tes-

timony after the deposition has concluded, creating the

opportunity to use the errata sheet to repair any damaging

testimony and overcome summary judgment. While federal

courts uniformly recognize Rule 30(e) as a powerful litigation

tool, they have diverging interpretations of the rule’s phrase

“in form or substance.” It is important to be aware of the dif-

ferent ways courts view the term and to identify strategies to

employ when witnesses seek to change their testimony.

If a deponent returns an errata sheet with changes, coun-

sel should rst conrm that the deponent cited the page and

line at issue, explained the reason for each change in sufcient

detail, and returned the errata sheet to the court reporter 30

days from the date he or she served the transcript on counsel,

as required under the rule. Most courts nd that a deponent’s

failure to comply with Rule 30(e)’s procedural requirements

constitutes waiver, holding that an untimely submission

“shall” be stricken by the court, as seen in Reed v. Hernandez.

If the deponent’s submission is procedurally valid, coun-

sel should then determine whether the witness’s changes

were substantive and whether the jurisdiction permits such

changes. Some circuits have denitively ruled on the issue,

but there are differences among jurisdictions on whether

wholesale changes are allowed. Meanwhile, within undecided

circuits, district courts have issued conicting decisions.

Courts that preclude a deponent from making substantive

modications interpret “change in form” as a correction to

spelling or typographical error, and “change in substance”

as a correction in the transcription error. These courts rea-

son that a contradictory errata sheet is akin to an impermis-

sible “sham afdavit,” opining, as in Touchcom v. Bereskin

& Parr, that a deposition is not a “take-home exam” that

can be revised after the witness has testied. In other words,

errata sheets should not be used to “create a material factual

dispute in a tactical attempt to evade an unfavorable sum-

mary judgment.” (See Hambleton Bros. Lumber Co. v. Balkin

Enters.) The U.S. Court of Appeals for the Seventh Circuit,

for example, in Thorn v. Sundstrand Aerospace Corp., pro-

hibits “contradictory” changes unless they constitute a tran-

scription error.

Other courts do not limit the types of errata sheet changes

a deponent can make. As in Podell v. Citicorp Diners Club,

they permit sweeping alterations to deposition testimony,

even if the changes materially contradict the original testi-

mony and the witness’s stated reasons for the changes are

“unconvincing.” Courts that broadly allow changes reason

that the plain language of Rule 30(e) does not expressly limit

a witness’s ability to make substantive changes, providing for

more complete discovery and opportunity to learn and inves-

tigate the changes pretrial.

Some courts, for example, EBC, Inc. v. Clark Building

Systems, strike a balance between the narrow and broad

views, permitting contradictory changes if the court deter-

mines the deponent offered a sufcient justication for the

revision. In the U.S. Court of Appeals for the Third Circuit,

trial judges have discretion to determine whether the depo-

nent’s explanation was sufcient.

If counsel ultimately determines that a witness’s errata

sheet contains substantive changes to a degree permis-

sible under local law, he or she has the option to reopen the

deposition at the expense of the party making the change

and examine the witness to discover the reasons for and the

source of the changes. Counsel’s communications with the

deponent regarding the errata sheet changes are fair game.

Courts reject attempts to use attorney-client privilege to

shield testimony about whether the lawyer’s communications

impacted the witness’s decision, as witnessed in Lugtig v.

Thomas. At trial, courts uniformly allow litigants to impeach

the witness with both the original and corrected transcript.

Deciding to change sworn testimony through errata sheet

submission is a risky litigation tactic that can adversely affect

a witness’s credibility, and thus a litigant’s chance to win the

case. Defending counsel should take precautions to avoid

the potentially fatal problem by thoroughly preparing the

witness, and if possible, rehabilitate any material unfavor-

able testimony during the deposition. If a deponent does

ultimately submit substantive errata sheet changes, depos-

ing counsel should identify case law to support a motion to

strike the errata sheet, reopen the deposition, and request the

production of communications between the witness and any

third parties.

RESOURCES

Reed v. Herna ndez, 114 F. App’x. 609 (5th Ci r. 2004).

Touchcom v. Beres kin & Parr, 790 F. Supp. 2d 435, 465 ( E.D. Va.

2011).

Hambleton B ros. Lumber Co. v. Balk in Enters., 397 F.3d. 1217,

1225–12 26 (9th Cir. 2005).

Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383, 3 89 (7th Cir.

2000).

Podell v. Citic orp Diners Club, 112 F.3 d 98, 103 (2d Cir 1997).

EBC, I nc. v. Clark Bldg. Sys., 6 18 F.3d 253, 276–270 (3d Cir. 201 0).

Lugtig v. Thomas, 8 9 F.R.D. 639, 642 (N .D. Ill. 1981).

All Things Errata

By Brian A. Zemil , Litigation News Ass ociate Editor

20 | LITIGATION SECTI ON

CIVIL PROCEDURE UPDATE