Chapter 24 Compensation for Treating Physician's Deposition Preparation and Testimony

• Jurisdiction: Maryland

CHAPTER 23 SUBMISSION OF DEPOSITION TRANSCRIPT TO WITNESS FOR REVIEW AND SIGNATURE

There were three witnesses to the auto accident—the plaintiff whose car was struck, the defendant whose car hit the plaintiff's car, and a pedestrian who happened to be walking by. The plaintiff testified on deposition that the light was green as he entered the intersection and was broadsided by the defendant. The defendant, on the other hand, testified that his light had just turned green as he entered the intersection, when the plaintiff materialized in front of him out of nowhere. Both parties noticed the deposition of the pedestrian, who appeared without an attorney. She testified that from her vantage point it appeared as if the plaintiff had entered the intersection at an excessive rate of speed as his light was turning from yellow to red.

At the end of the pedestrian's testimony but before the record was closed, defense counsel advised her that under Rule 2-415(d) she had the right to review the transcript of her deposition within 30 days of its preparation and make typographical changes—or alternatively, she could waive that right. Plaintiff's counsel responded:

Counselor, I disagree with your limited characterization of what changes she can make—she is not limited to typos, she can change anything she wants. Also, whether or not she desires to exercise her right to review the transcript or waive it, I want her to review the transcript, and I direct her to do so.

The witness indicated that she was unsure as to how to proceed and the deposition ended on that note. Later, when she learned that the transcript was available for review, she decided to consult an attorney. She told the attorney what had happened, and then added:

You know, whether or not I can be compelled to review my transcript, the fact is that I realized after it was over that I had made a serious mistake that should be corrected. I confused the defendant with the plaintiff. In hindsight, it was the plaintiff who had the green light, not the defendant.

Her lawyer then advised her to complete an errata sheet explaining the changes and the reasons she made them. She did so. Upon reading her changes, defense counsel moved to strike the errata sheet, arguing that she was bound by her original answer because her alteration was not merely typographical, but rather, constituted an impermissible substantive change. The motion has come on for hearing.

Comment: The threshold issue is whether a party other than the deponent has the right to require review and signature of a deposition transcript. Rule 2-415(d) states that

[u]nless changes and signing are waived by the deponent and the parties, the officer shall submit the transcript to the deponent. . . . Within 30 days after the date the officer mails or otherwise submits the transcript to the deponent, the deponent shall (1) sign the transcript and (2) note any changes to the form or substance of the testimony in the transcript on a separate correction sheet, stating the reason why each change is being made.

(Emphasis added.) Plaintiff's counsel was therefore within his rights to insist that the witness review and sign her transcript, whether or not the deponent independently wanted to do so.

The more fundamental question is whether there are any limits on the types of changes that a deponent may make to the transcript. As noted above, Rule 2-415(d) allows for "changes in form or substance." It also provides that the...