Section 8.10 B. Allowable Changes

• Jurisdiction: New York

B. Allowable Changes

Cases disagree as to whether the changes a witness can make to the transcript are limited in any way. Although the statute speaks of “changes in form or substance,”¹²⁰⁰ it does not qualify these terms, which seemingly would suggest that even contradictory and unconvincing changes are allowable. Some courts, however, have rejected such a reading as it would permit deponents to undermine the deposition process.¹²⁰¹ In Greenway v. International Paper Co.,¹²⁰² the court stated that the obvious purpose of the rule was to permit correction of typographical errors, not all other changes, including changes of substance:

The Rule cannot be interpreted to allow one to alter what was said under oath. If that were the case, one could merely answer the questions with no thought at all then return home and plan artful responses. Depositions differ from interrogatories in that regard. A deposition is not a take home examination. ¹²⁰³

Some cases suggest that Greenway and the like represent the “modern trend,”¹²⁰⁴ but that proposition is debatable. In any event, the Greenway view is not universal. Other courts, including the Second Circuit, take a more relaxed approach¹²⁰⁵—as long as the witness complies with the mechanics set forth in FRCP 30(e), he or she can make any changes, including contradictory or unconvincing ones, because the rule permits “changes in form or substance”¹²⁰⁶ and does not require the court to evaluate the proposed changes.¹²⁰⁷

Because the witness cannot alter the original transcript,¹²⁰⁸ that testimony can be used against the deponent at trial or on summary judgment to challenge his or her credibility. Further, opposing counsel can, at trial or on summary judgment, use, probe and test the deponent’s explanations for any changes made.¹²⁰⁹ Both of these circumstances make the witness less likely to prevaricate. If the witness constructs “artful responses” as convenience and self-interest dictate, “jurors should be able to discern the artful nature of the changes.”¹²¹⁰

The unscrupulous witness is further constrained by the fact that the court may allow the deposition to be reopened if the changes made are so extensive and significant as to render the deposition incomplete or useless.¹²¹¹ In the reopened deposition, the expenses of which (including attorneys’ fees) may be imposed on the witness, the adversary will be allowed to inquire into the changes, the reasons therefor and the facts at issue in the altered material, including whether the changes originated with the deponent. The dishonest or prevaricating witness seemingly would accomplish little by “editing” the transcript to “improve” it if, in the process of doing so, he renders it incomplete in regard to the issues addressed and opens himself to further questioning, for which he likely will have to pay.¹²¹² For these reasons, Professor Moore states...