CHAPTER 11 - 11-6 Signing, Certification, and Use of Oral Depositions—Texas Rule 203

• Jurisdiction: United States

11-6 Signing, Certification, and Use of Oral Depositions—Texas Rule 203

TEXT OF RULE 203 RULE 203. SIGNING, CERTIFICATION AND USE OF ORAL AND WRITTEN DEPOSITIONS

203.1. Signature and Changes

(a) Deposition transcript to be provided to witness. The deposition officer must provide the original deposition transcript to the witness for examination and signature. If the witness is represented by an attorney at the deposition, the deposition officer must provide the transcript to the attorney instead of the witness.

(b) Changes by witness; signature. The witness may change responses as reflected in the deposition transcript by indicating the desired changes, in writing, on a separate sheet of paper, together with a statement of the reasons for making the changes. No erasures or obliterations of any kind may be made to the original deposition transcript. The witness must then sign the transcript under oath and return it to the deposition officer. If the witness does not return the transcript to the deposition officer within 20 days of the date the transcript was provided to the witness or the witness's attorney, the witness may be deemed to have waived the right to make the changes.

(c) Exceptions. The requirements of presentation and signature under this subdivision do not apply:

(1) if the witness and all parties waive the signature requirement;

(2) to depositions on written questions; or

(3) to nonstenographic recordings of oral depositions.

203.2. Certification

The deposition officer must file with the court, serve on all parties, and attach as part of the deposition transcript or non-stenographic recording of an oral deposition a certificate duly sworn by the officer stating:

(a) that the witness was duly sworn by the officer and that the transcript or non-stenographic recording of the oral deposition is a true record of the testimony given by the witness;

(b) that the deposition transcript, if any, was submitted to the witness or to the attorney for the witness for examination and signature, the date on which the transcript was submitted, whether the witness returned the transcript, and if so, the date on which it was returned.

(c) that changes, if any, made by the witness are attached to the deposition transcript;

(d) that the deposition officer delivered the deposition transcript or nonstenographic recording of an oral deposition in accordance with Rule 203.3;

(e) the amount of time used by each party at the deposition;

(f) the amount of the deposition officer's charges for preparing the original deposition transcript, which the clerk of the court must tax as costs; and

(g) that a copy of the certificate was served on all parties and the date of service.

203.3. Delivery

(a) Endorsement; to whom delivered. The deposition officer must endorse the title of the action and "Deposition of (name of witness)" on the original deposition transcript (or a copy, if the original was not returned) or the original nonstenographic recording of an oral deposition, and must return:

(1) the transcript to the party who asked the first question appearing in the transcript, or

(2) the recording to the party who requested it.

(b) Notice. The deposition officer must serve notice of delivery on all other parties.

(c) Inspection and copying; copies. The party receiving the original deposition transcript or non-stenographic recording must make it available upon reasonable request for inspection and copying by any other party. Any party or the witness is entitled to obtain a copy of the deposition transcript or non-stenographic recording from the deposition officer upon payment of a reasonable fee.

203.4. Exhibits

At the request of a party, the original documents and things produced for inspection during the examination of the witness must be marked for identification by the deposition officer and annexed to the deposition transcript or non-stenographic recording. The person producing the materials may produce copies instead of originals if the party gives all other parties fair opportunity at the deposition to compare the copies with the originals. If the person offers originals rather than copies, the deposition officer must, after the conclusion of the deposition, make copies to be attached to the original deposition transcript or non-stenographic recording, and then return the originals to the person who produced them. The person who produced the originals must preserve them for hearing or trial and make them available for inspection or copying by any other party upon seven days' notice. Copies annexed to the original deposition transcript or nonstenographic recording may be used for all purposes.

203.5. Motion to Suppress

A party may object to any errors and irregularities in the way the testimony is transcribed, signed, delivered, or otherwise dealt with by the deposition officer by filing a motion to suppress all or part of the deposition. If the deposition officer complies with [Texas] Rule 203.3 at least one day before the case is called to trial, with regard to a deposition transcript, or 30 days before the case is called to trial, with regard to a non-stenographic recording, the party must file and serve a motion to suppress before trial commences to preserve the objections.

203.6. Use

(a) Non-stenographic recording; transcription. A non-stenographic recording of an oral deposition, or a written transcription of all or part of such a recording, may be used to the same extent as a deposition taken by stenographic means. However, the court, for good cause shown, may require that the party seeking to use a non-stenographic recording or written transcription first obtain a complete transcript of the deposition recording from a certified court reporter. The court reporter's transcription must be made from the original or a certified copy of the deposition recording. The court reporter must, to the extent applicable, comply with the provisions of this rule, except that the court reporter must deliver the original transcript to the attorney requesting the transcript, and the court reporter's certificate must include a statement that the transcript is a true record of the non-stenographic recording. The party to whom the court reporter delivers the original transcript must make the transcript available, upon reasonable request, for inspection and copying by the witness or any party.

(b) Same proceeding. All or part of a deposition may be used for any purpose in the same proceeding in which it was taken. If the original is not filed, a certified copy may be used. "Same proceeding" includes a proceeding in a different court but involving the same subject matter and the same parties or their representatives or successors in interest. A deposition is admissible against a party joined after the deposition was taken if:

(1) the deposition is admissible pursuant to Rule 804(b)(1) of the Rules of Evidence, or

(2) that party has had a reasonable opportunity to redepose the witness and has failed to do so.

(c) Different proceeding. Depositions taken in different proceedings may be used as permitted by the Rules of Evidence.

11-6:1 2021 Amendments to the Texas Rules of Civil Procedure

The 2021 amendments to the Texas Rules of Civil Procedure did not modify Texas Rule 203 regarding signing, certification, and use of oral and written deposition in any respect.

11-6:2 Presentment, Signature, and Changes

Texas Rule 203.1 requires the deposition officer (i.e., the person recording the deposition, such as the court reporter) to provide the original transcript of an oral deposition to the witness for signature.⁴⁹⁴ If the witness was represented by any attorney at the deposition, the transcript must be provided to the attorney.⁴⁹⁵ The Rule does not apply (1) when the "witness and all parties waive the signature requirement,⁴⁹⁶ (2) to depositions on written questions,⁴⁹⁷ or (3) to nonstenographic recordings."⁴⁹⁸ If the oral deposition was recorded both stenographically and nonstenographically (e.g., videotaped), the witness (or the witness's attorney) is presented only with the transcript for signature and change.

Once the oral-deposition transcript is presented to the witness or the witness's attorney, the witness can make changes to his answers as reflected in the transcript. The changes must be made on a separate sheet of paper (i.e., an "errata sheet") because Texas Rule 203.1(b) prohibits "erasures or obliterations of any kind . . . to the original deposition transcript." The witness must give a reason for each change.⁴⁹⁹ A court should strike any change for which no reason is given.⁵⁰⁰

There are three general types of deposition changes: (1) form ones that correct misspellings, typographical errors, and transcription errors, (2) "fill-in-the-blank" ones that provide additional information that the witness agreed to provide during the deposition, and (3) substantive ones that either wholly change an answer or contradict the original answer (e.g., changing a "no" to a "yes" or vice versa). Substantive changes are clearly permitted by Texas Rule 203. This is because nothing in Texas Rule 203.1(b) places any limitation on the type of change that can be made by the witness. Rather, it simply provides that the "witness may change the responses as reflected in the deposition transcript by indicating the desired changes." Nor does the Rule permit the trial court to examine the sufficiency, reasonableness, or legitimacy of the reasons for the changes—even if the given reasons are unconvincing. This means that the witness can change his or her deposition testimony carte blanche, and changes of any nature, no matter how considerable or fundamental, are permitted, even if the changes are wholly inconsistent with, or contradictory to, the original testimony.⁵⁰¹ The witness, however, cannot delete or change the questions asked during the deposition.⁵⁰²

If, however, substantive changes make the deposition incomplete or useless without...