Not a Take-Home Exam: Changing Deposition Testimony Under Rule 30, 1014 RIBJ, 63 RI Bar J., No. 2, Pg. 5

• Author: John P. Barylick, Esq., Partner at WistowBarylick Sheehan & Loveley, PC, Providence

Not a Take-Home Exam: Changing Deposition Testimony Under Rule 30

Vol. 63 No. 2 Pg. 5

Rhode Island Bar Journal

October, 2014

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0 September, 2014

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0 John P. Barylick, Esq., Partner at WistowBarylick Sheehan & Loveley, PC, Providence

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0We've all wished we could have do-overs in life - decisions made, things said - that we'd just as soon expunge from our personal record and pretend never happened. Depositions are no different. Often a witness, given sufficient time for reflection and consultation with counsel, wishes she or he could claw back an answer and take a legal mulligan. That's when Superior Court Rule of Civil Procedure 30(e) comes into play. It's the rule that allows a witness to read and sign her or his transcript, making changes as appropriate. The case law interpreting Rule 30, however, reveals depositions can be far less forgiving than weekend golf buddies.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0What type of changes may be made to the transcript by the witness? How long afterward? And what justification must be offered? These are all addressed by Rule 30, the rule governing post facto tinkering with sworn deposition testimony. The rule states:

[T]he deponent shall have 30 days after being notified by the officer that the transcript or recording is available in which to review the transcript or recording and, if there are changes in form or substance, to sign a statement reciting such changes and the reasons given by the deponent for making them.¹

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Rule 30's basic tenet is that a deposition is intended as an extemporaneous and candid engine of truth-finding. As opposed to a carefully-crafted statement of counsel (read: interrogatory answers), ^[2] the cases uniformly read that even if a change is allowed, the witness's original answer remains part of the record from which she or he may be cross-examined at trial.^[3] The ability to revise one's testimony under Rule 30 is not, however, unlimited, and is constrained by both time and content.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0As to time, an errata sheet with the witness's desired changes must be filed within thirty days of the transcript's first availability from the stenographer. The thirty-day rule, added to federal Rule 30 in 1970, ^[4] is strictly construed. The clock begins to run from the date the transcript is available, not when it arrives in the mail.^[5] Failure of the witness to make corrections within this thirty-day window results in a waiver of that right, ^[6]

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0But, is the witness limited to merely correcting transcription errors, or may she or he make substantive changes in her or his testimony? The answer is both the rule and case law permit changes in form and substance. Thus, theoretically at least, Rule 30 allows a witness to change an unequivocal yes answer to a no answer, or a traffic light's color from red to green. Subject, of course, to cross-examination at trial and possible resumption of the deposition to explore the witness's...