After the Party’s Over: How to Handle a Deposition Errata Sheet

So you have carefully prepared the client for deposition, you have scoured his discovery responses and medical records for any problems, contradictions, omissions and the deposition of your client is over, now what? Upon receipt of the deposition, you, your paralegal and client need to carefully review the transcript for any discrepancies or inaccuracies. You may have noticed these problems at the time of deposition or later while reading it. Your client has one last chance to correct the errors and explain why he answered incorrectly at the deposition.

Under Rule 30 of the Federal Rules of Civil Procedure, your client has a right to check and correct any errors in the deposition. I never waive signature on a client’s deposition, or that of an opposing witness, except experts. This is your client’s last opportunity to correct any problems. You are able, to correct any errors or even misstatements. In addition, court reporters do make mistakes. As a result, you do not want to give up this valuable right. Clients are not computers, they are human beings and can make mistakes.

The rule allows your client to correct those mistakes. You have thirty (30) days from the date the deposition is delivered to you to make these changes. If you fail to act the opposing party can ask that the deposition be submitted “as is.” If you fail to make any changes needed, the deposition will bind your client, and you will be unable to undo the harm. I always try to make sure clients use this right sparingly, and make corrections only when necessary. Nothing is worse than to send pages of corrections. It will seem to a jury as if you are trying to rewrite your testimony.

A couple of caveats… any changes can be used for purposes of impeachment at trial or in some later proceeding. The jury or finder of fact can consider both answers and make their own decision which is more credible. In submitting an errata sheet, a client must timely exercising their rights under Rule 30(e) of the Federal Rules of Civil Procedure, which allows a deponent thirty (30) days to check the deposition transcript and to make any changes as to “form or substance.” The deponent may exercise this privilege by signing a statement under oath reciting the changes and his reasons for making them. If the deponent exercises this right properly, both the original answers and the revised answers and the accompanying explanations become part of the record. See Podell v. Citicorp Diners Club, Inc., 112 F.3d 98, 103 (2d Cir.1997); Lugtig v. Thomas, 89 F.R.D. 639, 641-42 (N.D.Ill.1981). The reasons given “need not be convincing,” but “there must be a reason for every change.” Id.; see also Sanford v. CBS, Inc., 594 F.Supp. 713, 715 (N.D.Ill.1984) (“It is not enough for the witness to give general conclusory reasons for all the changes at the end of the transcript or, as in this case, for the witness to record no reasons at all upon the deposition but merely claim later the reasons are ‘either explicit or reasonably implied from the circumstances.’ ”) The Seventh Circuit has held that “a party cannot create a sham issue of fact by ‘directly contradict[ing] her own earlier statements, without explaining the contradiction or attempting to resolve the disparity.’ ” Holland v. Jefferson National Life Ins. Co., 883 F.2d 1307, 1314 n. 3 (7th Cir.1989), quoting Babrocky v. Jewel Food Co., 773 F.2d 857, 861 (7th Cir.1985).

If your client completely reverses his answer you need to clearly and persuasively explain the reason for the change. Under most state and federal law, two contradictory statements about a material matter made under oath on the face of it, is an act of perjury. 18 U.S.C. § § 1621 and 1623. Perjury requires that one make the false statement with knowledge of its falsity and show that it was not made as a result of inadvertence, honest mistake, carelessness, misunderstanding, or a mistaken conclusion. As a result you want to make sure the change is truly a mistake and that real reasons justify the correction. Otherwise, you risk aiding and abetting a crime which is immoral, unethical and illegal. 18 U.S.C. § 1622 – subornation of perjury. After all is said and done, make sure that your client understands that the number one rule is to tell the truth and be accurate.