Deposition errors by corporate officials recently became harder to correct, even in bet-the-company cases. A recent Third Circuit opinion determined that contradictory errata sheets offered to correct damning deposition testimony must have factual support to be considered. In EBC, Inc. v. Clark Bldg. Systems, Inc., the Third Circuit Court of Appeals considered whether deposition errata sheets offered under Fed. R. Civ. P 30(e) may successfully be used to create issues of fact that defeat summary judgment. See ___ F.3d ___, 2010 WL 3239475 (3d Cir. Aug. 18, 2010). The Court of Appeals considered a plaintiff's challenge to dismissal of its case at summary judgment after the plaintiff offered a contradictory errata sheet and contested the existence of a factual dispute.
Under Federal Rule of Civil Procedure 30(e) deponents may alter a deposition "in form or substance" via errata sheets. An errata sheet must be submitted within 30 days of notification that the deposition transcript is available. Importantly, the 30-day period begins to toll when the deposed party is notified by the court reporter that the transcript is available for review, not when a party physically receives the transcript. The Rule also requires the party submitting an errata sheet to sign a statement listing the changes and the reasons for making them.
The errata sheet dispute in EBC arose from a construction payment case. An unpaid contractor (Plaintiff State Steel) contested that a letter sent by the project's owner (Defendant A & M) was an enforceable agreement obligating A & M to make payment. Accordingly, State initiated a suit alleging various claims against A & M, including a breach of contract claim based on the direct payment letter. Id. at *3. At deposition, State's President testified that she never believed the payment letter to be an enforceable agreement. When A & M moved for summary judgment largely on the basis of this deposition testimony, State produced an errata sheet that recanted its President's testimony, now claiming that the payment letter was an enforceable agreement. Both the district court and Court of Appeals rejected the notion that the contradictory errata sheet could create a factual dispute which would defeat A & M's motion for summary judgment.
Third Circuit's Reasoning
In affirming the district court, the Court of Appeals considered the proper standard for reviewing a district court's decision to refuse consideration of an errata sheet. The Court of Appeals held "that even when reviewing a motion for summary judgment, a district court does not abuse its discretion under Rule 30(e) when it refuses to consider proposed substantive changes that materially contradict prior deposition testimony, if the party offering the changes fails to provide sufficient justification." Id. at *9. Courts may, however, "in their discretion, choose to allow contradictory changes...as the circumstances may warrant." Id. Further, the court noted that "[p]reservation of the original testimony for impeachment at trial serves as cold comfort to the party that should have prevailed at summary judgment. And reopening the deposition before disposition might not be a sufficient remedy, for the deponent who has reviewed his original testimony and settled on the opposite answer may prove unimpeachable." Id. at *9. The Court of Appeals also noted that errata sheets offered to defeat summary judgment are analytically indistinct from affidavits offered to defeat summary judgment and, accordingly, errata sheets in this context would be analyzed under the court's "sham affidavit" jurisprudence. Id. at *11.
The court applied these standards to the errata sheet offered to correct the deposition testimony of State's President. It held that the errata sheet was defective for both procedural and substantive reasons. Procedurally, the errata sheet was untimely since it was offered nearly three months after the last day for doing so under Rule 30(e). Id. at *11. Substantively, the contradictory errata sheet was unsupported by any corroborating evidence on the record. Id. at *12; see e.g., Jiminez v. All American Rathskellar, Inc., 503 F.3d 247, 254-55 (3d Cir. 2007) (finding no corroborating evidence where purported sham affidavit "was entirely unsupported by the record and directly contrary to the testimony" of defendants); Baer v. Chase, 392 F.3d 609, 626 (3d Cir. 2004) (reversing grant of summary judgment where district court "overlooked the importance of evidence existing in the record" that supported affidavit offered to oppose summary judgment , including letter produced by defendant substantiating plaintiff's unjust enrichment claim). Thus, the court affirmed the district court's grant of summary judgment because the errata sheet was procedurally and substantively flawed.
EBC reaffirms the importance of complying with the specific procedures mandated by Rule 30(e) when submitting deposition errata sheets. Further, the Court of Appeals established that errata sheets may play only a limited role in contesting summary judgment motions where they are contradictory and unsupported by the record. To summarize, EBC offers three take-away points:
- Compliance with Rule 30(e)'s requirements must be precise; failure to abide the Rule's procedures can be sufficient reason to disregard errata sheets.
- Deposition witnesses must be prepared thoroughly and understand the stakes of testifying incorrectly.
- Courts are unlikely to permit "do-over" errata sheets that flatly contradict deposition testimony unless there already exists a basis for the errata sheet on the record.