Have you ever left a deposition feeling confident that you obtained the testimony you hoped to receive, and it’s time to move for summary judgment? Then (whether within the time period permitted by the relevant rule – in federal court Fed. R. Civ. P. 30(e)(1) – or otherwise) you get back a so-called “errata sheet” that makes hordes of substantive changes to the testimony, such as from “no” to “yes,” or “wasn’t” to “was.” Now, instead of seeking summary judgment, you have to waste time and money fighting about the legitimacy of the changes.
Anyway, it’s really annoying having to do that, so that’s what this post is about. While either side can (and has) abused the errata sheet process, we looked at a lot of cases, and we have not found any instance of a defendant in prescription medical product liability litigation having engaged in such conduct – but a number (discussed below) where plaintiffs have. Further, be aware of a fair number of older cases that cut deponents considerable slack concerning ex post facto changes to sworn testimony. Those courts even called themselves the “majority” for a while. However, most of the more recent cases (last 10-15 years, or so), don’t allow deponents to do by “errata sheet” what they can’t do by post-deposition affidavit under the sham affidavit rule.
That’s a good jumping off point. First of all, be sure to get the terminology right. Just as there is a “sham affidavit” doctrine, whereby an affidavit contradicting the same witness’ sworn testimony is impermissible, significant substantive “errata” changes to a witness’ sworn testimony itself are similarly excludable as “sham corrections”:
We think this type of “sham” correction is akin to a “sham” affidavit. While the language of FRCP 30(e) permits corrections “in form or substance,” this permission does not properly include changes offered solely to create a material factual dispute in a tactical attempt to evade an unfavorable summary judgment. . . . Rule 30(e) is to be used for corrective, and not contradictory, changes.
Hambleton Brothers Lumber Co. v. Balkin Enterprises, Inc., 397 F.3d 1217, 1225 (9th Cir. 2005) (citations omitted).
Hambleton relied on an earlier Ninth Circuit case, Combs v. Rockwell International Corp., 927 F.2d 486 (9th Cir. 1991), that affirmed dismissal of an action – and imposition of Rule 11 sanctions – for an errata sheet that included “several reversals of [the deponent’s] answers to key questions.” Id. at 488. Hambleton also cited similar results from two other circuits. In Burns v. Board. of County Commissioners, 330 F.3d 1275, 1281-82 (10th Cir. 2003), the court held:
Rule 30(e) . . . 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. . . . [W]e do not condone counsel’s allowing for material changes to deposition testimony and certainly do not approve of the use of such altered testimony that is controverted by the original testimony.
Id. at 1282 (quoting Garcia v. Pueblo Country Club, 299 F.3d 1233, 1242 n.5 (10th Cir. 2002)). Accord BancFirst ex rel. Estate of M.J.H. v. Ford Motor Co., 422 F. Appx. 663, 666 (10th Cir. 2011) (“We have adopted a restrictive view of the changes that can be made pursuant to Rule 30(e), and take a dim view of substantive alteration of deposition testimony).
Likewise, in Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383 (7th Cir. 2000), another court of appeals declared that while substantive “errata” changes were technically within the language of Rule 30:
[B]y analogy to the cases which hold that a subsequent affidavit may not be used to contradict the witness’s deposition, . . . a change of substance which actually contradicts the transcript is impermissible unless it can plausibly be represented as the correction of an error in transcription, such as dropping a “not”. . . . [The deponent] could not remove the issue from the jury by altering the transcript of his deposition. The tactic was foolish rather than merely otiose because it suggests guilty knowledge. . . .
Id. at 389 (citations omitted) (Posner, J.). The Sixth Circuit agrees. See A.C. v. Shelby County Board of Education, 711 F.3d 687, 702-03 (6th Cir. 2013) (“a party moving for summary judgment cannot extinguish a genuine issue of material fact simply by filing an errata sheet . . . to counteract the effect of previous deposition testimony”); Trout v. FirstEnergy Generation Corp., 339 Fed. Appx. 560, 565 (6th Cir. 2009) (plaintiff’s “‘corrected’ . . . segment of her deposition testimony” disregarded under “sham affidavit rule”).
“Shepardizing” (a now archaic shorthand phrase for reviewing subsequent citations to a case) Hambleton turns up lots more precedent condemning the making of extensive, substantive changes to deposition transcripts under the guise of Rule 30(e) “errata.” In EBC, Inc. v. Clark Building Systems, Inc., 618 F.3d 253 (3d Cir. 2010), the court relied heavily on Hambleton to affirm the district court’s refusal to consider massive “errata.” First, it was proper to require strict adherence to all Rule 30’s procedural requirements for altering sworn transcripts. Those “absolute prerequisite[s]” are “clear and mandatory.” Id. at 265. They include: (1) a request to review the transcript; (2) the court reporters “certif[ication]” of that request; (3) submission of errata within 30 days of the party being notified of the availability of the transcript for review; and (4) including a statement of reasons for the changes with the errata sheet. Id. at 265-66. “[F]ailure to provide a statement of reasons alone suffices to strike a proposed change.” Id. at 266. However, courts are free to reject substantively contradictory “errata,” even if submitted in a procedurally perfect manner:
As a general proposition, a party may not generate from whole cloth a genuine issue of material fact (or eliminate the same) simply by re-tailoring sworn deposition testimony to his or her satisfaction. . . . [Citations to cases previously discussed omitted] Where proposed changes squarely contradict earlier testimony materially bearing on the case, preserving the original testimony or reopening the deposition may often prove to be insufficient remedies. . . . We therefore hold that 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 proffering the changes fails to provide sufficient justification.
Id. at 267-68.
Hambleton also lead us to Norelus v. Denny’s, Inc., 628 F.3d 1270 (11th Cir. 2010), which affirmed not only the striking of a “novella-length errata sheet making a slew of material changes to [counsel’s] client’s deposition testimony,” id. at 1281, but an award of costs as a sanction for “vexatious” behavior:
As the magistrate judge found and no one . . . seriously contests, the improper submission of the massive errata document rendered the eight days spent on [the] deposition a waste of time and money to say nothing of the time the attorneys were forced to spend on the issues created by the document itself. [Plaintiffs’] decision to press on with [these] claims after the creation of the errata document wasted more time and money. Together, the submission of the errata document and the continued pursuit of [these] claims afterwards unquestionably prolonged and multiplied the proceedings.
Id. at 1282. See also Id. at 1285-86 (describing excessive “errata” changes in detail).
Numerous federal district courts also bar substantive alterations to sworn testimony via “errata sheet” in the absence of a damn good excuse. First, a sample of the numerous Ninth Circuit district court cases applying Hambleton. In a prescription drug product liability case, “Plaintiff submitted nine pages of errata to the deposition transcript, including several substantive changes.” Herriott v. Sanofi-Aventis U.S. LLC, 2017 WL 8794204, at *5 (C.D. Cal. May 18, 2017), reconsideration denied, 2017 WL 8794205 (C.D. Cal. Aug. 8, 2017). These included the classic change of “yes” to “no.” Id. Under Hambleton, the court ignored these substantive, self-serving changes:
Here, the changes Plaintiff has presented are ones that directly contradict his deposition testimony. Further, the rewritten version supports his argument that the statute of limitations against [another defendant] has not run, whereas the original transcript provides support for the contrary position. In light of the materiality of the proposed changes, and the foregoing legal standards, the original version of the testimony, not the corrected one, is applied in this Order.
Id. at *5. Similar shenanigans by another plaintiff led to a similar result in Juell v. Forest Pharmaceuticals, Inc., 2006 WL 618396 (E.D. Cal. Mar. 9, 2006). No “do-overs” is the rule:
[C]hanges from “yes” to “no,” or gross departures from original testimony in date and time responses, . . . raise suspicions that the deponent, in retrospect, realizing that the truthful answer will cause problems in the case, changes the response simply to ward off a motion. Such changes would violate the Hambleton rule.
Plaintiff asserts that they are now ready to give the reasons for their changes in a second deposition. . . . The reasons for the changes should have accompanied the changes, and the courts should not routinely task the interrogating party with the requirement of multiple depositions pre-trial until the deponent “gets it right.” Depositions are events in litigation on par with trial testimony; indeed, depositions are often used as trial testimony. A witness at trial does not receive an opportunity to “do it over” in front of the jury.
Id. at *1-2 (E.D. Cal. Mar. 9, 2006)
In a non-drug-device case, the court in Ashcraft v. Welk Resort Group, 2017 WL 5180421 (Mag. D. Nev. Nov. 8, 2017), held:
[T]he Ninth Circuit’s standard that Rule 30(e) changes must be “corrective, and not contradictory” means that changes are limited to correcting stenographic mistakes and cannot be used to alter the actual testimony given. . . . Accordingly, courts should limit Rule 30(e) changes to those correcting stenographic mistakes and, consequently, should bar parties from using Rule 30(e) to change the testimony actually given. When a party has attempted to utilize Rule 30(e) beyond this scope, courts should strike the proposed changes.
Id. at *4-5 (citations, footnotes, and quotation marks omitted). See Moriarty v. American General Life Insurance Co., 2018 WL 4628365, at *4 (S.D. Cal. Sept. 27, 2018) (“parties are bound by existing legal doctrine anchored in statutes, rules, and case law”; “the parties did not stipulate to allow Plaintiff to make any and all changes she desired to the transcript. To find otherwise would eviscerate the purpose of the deposition”); Anderson v. Credit One Bank, National Ass’n, 2018 WL 2287329, at *2 (S.D. Cal. May 18, 2018) (“[c]hanging ‘yes’ to ‘no’ and ‘correct’ to ‘no not correct’ are paradigmatic examples of contradiction, rather than correction”); ViaSat, Inc. v. Acacia Communications, 2018 WL 899250, at *4 (S.D. Cal. Feb. 15, 2018) (Rule 30(e) limited to “corrections of stenographic errors, whether those corrections are of form or substance, and . . . is not properly used to alter deposition testimony provided under oath and correctly transcribed”); Macy v. Waterford Operations, LLC, 2017 WL 5668003, at *3 (D. Or. Nov. 27, 2017) (plaintiff “may not simply ‘correct’ his deposition to state a substantively different answer than the one he gave”); Export Development Canada v. ESE Electronics, Inc., 2017 WL 2713537, at *7 (C.D. Cal. June 20, 2017) (deponent’s “attempted revisions bear the markers of sham revisions of which binding and persuasive precedent from this Circuit warn. For these reasons, the Court cannot admit into evidence the substantive revisions”); Lee v. The Pep Boys-Manny Moe & Jack, 2015 WL 6471186, *2 (N.D. Cal. Oct. 27, 2015) (“[e]ven where changes to a deposition transcript are not used as a sham to create an issue of fact [for summary judgment], Rule 30(e) may only be used for corrective, and not contradictory, changes”); Azco Biotech Inc. v. Qiagen, N.V., 2015 WL 350567, at *4 (S.D. Cal. Jan. 23, 2015) (“the Ninth Circuit [in Hambleton] unambiguously, and without qualification, held that “Rule 30(e) is to be used for corrective, and not contradictory, changes.”); Karpenski v. American General Life Companies, LLC, 999 F. Supp. 2d 1218, 1224 (W.D. Wash. 2014) (“several factors cut in favor of a finding that the depositions constitute shams, including the extensiveness of corrections, the fundamental changes they introduce to prior testimony, and the impact of the corrections”); MGA Entertainment, Inc. v. National Products Ltd., 2012 WL 12886204, at *2 (C.D. Cal. April 12, 2012) (“the amendment procedure provided by Rule 30(e) is generally best limited as set forth in the rule and to the correction of court reporter’s errors. Absent extraordinary circumstances not present here, the Rule should not be misused to provide witnesses an opportunity to alter sworn substantive testimony.”); Cozzi v. County of Marin, 787 F. Supp.2d 1047, 1052 n.1 (N.D. Cal. 2011) (“a party cannot create an issue of fact by submitting an affidavit that contradicts her prior deposition testimony”); Weekes v. Ohio National Life Assurance Corp., 2011 WL 6140967, at *4 (D. Idaho Dec. 9, 2011) (“the flat contradiction; the failure to adequately explain the contradiction; and the timing of the correction − lead the Court to conclude that the errata is a sham”); Tourgeman v. Collins Financial Services, Inc., 2010 WL 4817990, at *3 (S.D. Cal. Nov. 22, 2010) (“Courts strike errata sheets in contexts beyond summary judgment.”).
District courts in other circuits impose similar restrictions. Again, we start with a case from our sandbox. In In re Trasylol Products Liability Litigation, 2010 WL 5151579 (S.D. Fla. Nov. 16, 2010), a plaintiff purported to “supplant” her unfavorable testimony via an errata sheet. Id. at *7. The court had none of it. Even before the Eleventh Circuit’s Norelus decision, it struck the purported errata:
This Court is not persuaded that the errata sheets should be considered. . . . The Court . . . may disregard errata sheets submitted under Federal Rule of Civil Procedure 30(e) where the corrected testimony contradicts the original testimony, and Plaintiffs fail to provide a sufficient justification for the change. Here, Plaintiffs’ errata sheets do not reflect errors in transcription: the changes directly contradict the substance of Plaintiffs’ initial testimony.
Id. at *7-8 (citations omitted). Accord In re Diet Drugs (Phentermine/Fenfluramine/Dexfenfluramine) Products Liability Litigation, 2012 WL 1191847, at *4 (E.D. Pa. April 10, 2012) (“An errata sheet is to be used for corrective, and not contradictory, changes. A party is not permitted to manufacture an issue of fact by re-tailoring sworn deposition testimony through substantive changes on an errata sheet.); In re Accutane Products Liability Litigation, 2007 WL 1099049, at *1 (M.D. Fla. April 10, 2007) (“prohibiting corrections on errata sheets that alter the substance of [plaintiffs’ expert’s] testimony”).
The decision in Jackson v. Teamsters Local Union 922, 310 F.R.D. 179 (D.D.C. 2015), comprehensively surveyed the relevant law and concluded that any and all substantive errata should be stricken:
[T]he substantive and material alterations here should similarly be stricken, as they sought to tell a very different story – albeit not one directly contradictory. While the revisions provided here may not be 180-degree reversals, they are certainly sufficiently inconsistent so as to call into question their veracity. . . . The Court, consequently, will permit only those changes in this case that are typographical or clerical in nature.
Id. at 186 (citations omitted).
In Wyeth v. Lupin Ltd., 252 F.R.D. 295 (D. Md. 2008), “six proposed corrections” to a designee’s sworn deposition testimony were rejected.
[The changes] represent lawyerly fixing of potentially problematic testimony. . . . There was no apparent witness intimidation or badgering. . . . [Counsel] had the opportunity to cross examine her to complete the record or clear up now asserted ambiguities. To allow these types of corrections would undermine the . . . deposition. An interpretation of liberal − indeed unlimited − amendments and corrections would discourage the careful preparation. . . . Rather than advancing the pursuit of truth in discovery, a policy of liberal “amendments” and “corrections” would encourage and intensify lawyer wordsmithing and parsing. . . . [A party] cannot change testimony in a material way, simply because on review, it does not like the answer as given.
Id. at 297.
The purpose of Rule 30(e) is obvious. Should the reporter make a substantive error, i.e., he reported “yes” but I said “no,” or a formal error, i.e., he reported the name to be “Lawrence Smith” but the proper name is “Laurence Smith,” then corrections by the deponent would be in order. 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.
Greenway v. International Paper Co., 144 F.R.D. 322, 325 (W.D. La. 1992). See In re Vickers, 2018 WL 6537128, at *2 (E.D. Okla. Dec. 12, 2018) (“Claimant not only altered the very substance of his testimony with his errata ‘corrections’ represent the type of blatant ‘deponent’s remorse’ of which the Tenth Circuit has disapproved”); Sinclair Wyoming Refining Co. v. A&B Builders, Ltd., 2018 WL 4677912, at *6 (D. Wyo. July 24, 2018) (“Plaintiff failed to prepare [the expert] . . . prior to his deposition. . . . Plaintiff’s failure to prepare their witness is an insufficient justification for allowing material changes to the deposition testimony”); Arce v. Chicago Transit Authority, 193 F. Supp.3d 875, 883 (N.D. Ill. 2016) (“Because the errata cannot plausibly be represented as the correction of an error in transcription . . ., they are stricken”), aff’d, 738 F. Appx. 355 (7th Cir. 2018); Magee v. Securitas Security Services USA, Inc., 2016 WL 4470762, at *8 (S.D. Miss. Aug. 23, 2016) (plaintiff “should not be permitted to avoid summary judgment by changing her testimony, particularly when her explanation for the change is so flimsy”) (footnote omitted); Senatore v. Lynch, 2016 WL 1611578, at *1 (D.D.C. April 22, 2016) (following Jackson); Travelers Indemnity Co. v. Attorney’s Title Insurance Fund, Inc., 2016 WL 866368, at *7 (Mag. M.D. Fla. March 7, 2016) (“the attempted changes to [the] deposition testimony are substantive, contradictory, and inappropriate; therefore, the errata is due to be stricken on this basis”); Grottoes Pallet Co. v. Graham Packaging Plastic Products, Inc., 2016 WL 93869, at *6 (W.D. Va. Jan. 7, 2016) (“the court will not allow [deponent] to use Rule 30(e) to inject new factual disputes into the summary judgment record that did not exist previously. Instead, the court will only consider the original deposition testimony”); Changzhou Kaidi Electric Co. v. Okin America, Inc., 102 F. Supp.3d 740, 747 (D. Md. 2015) (striking “proposed alterations [that] directly contradict [the deponent’s] sworn testimony without an adequate explanation”); Cargill Meat Solutions. Corp. v. Premium Beef Feeders, LLC, 2015 WL 5821696, at *4 (D. Kan. Oct. 5, 2015) (“Plaintiff’s witnesses are allowed to alter what they said under oath. The Court will therefore disregard the changes that Plaintiffs made in errata sheets which are the subject of Defendants’ motions to strike, and the errata sheets will be stricken”); Maronda Homes, Inc. v. Progressive Express Insurance Co., 2015 WL 4167377, at *4 (Mag. M.D. Fla. July 9, 2015) (“that an attorney asked a question that calls for speculation or an irrelevant response does not explain why an answer would need to be changed. Such changes should rarely be necessary, since a party can have the offending question and corresponding answer excluded”); Stradtman v. Republic Services, Inc., 2015 WL 3404139, at *2 (E.D. Va. May 26, 2015) (striking “a substantive change [that] is an impermissible use of an errata sheet”); Green v. Wing Enterprises, Inc., 2015 WL 506194, at *2 (D. Md. Feb. 5, 2015) (“where the proposed changes do not correct misstatements or clarify existing answers but instead materially change the answers or fully supplant them, such changes will be stricken and the deponent will be barred from utilizing the revised testimony at trial”); Rezendes v. Domenick’s Blinds & Decor, Inc., 2015 WL 3484835, at *7 (M.D. Fla. June 2, 2015) (“submitting an errata sheet with a slew of material changes is improper”); Jones-McNamara v. Holzer Health Systems, Inc., 2015 WL 196048, at *4 (S.D. Ohio Jan. 14, 2015) (“reject[ing] those changes that do not simply correct typographical or transcription errors. Given the rather remarkable nature of almost all of the changes Plaintiff submitted on her errata sheets, the Court must strike most of her changes.”); William L. Thorp Revocable Trust v. Ameritas Investment Corp., 57 F. Supp.3d 508, 517 (E.D.N.C. 2014) (“Rule 30(e)(1)(B) does not permit a party to make changes that substantively contradict or modify sworn deposition”); Mullins v. Cyranek, 2014 WL 3573498, at *3 (S.D. Ohio July 21, 2014) (“alterations [that] add and change details that were not provided in the original deposition testimony, or change the meaning of the testimony provided . . . are impermissible”); Clare v. Chrysler Group, LLC, 2014 WL 2515212, at *2 (E.D. Mich. June 4, 2014) (“Plaintiffs are attempting to materially alter their witnesses’ testimony. The Court will not permit such a material alteration”); Giebel v. Lavalley, 2013 WL 6903784, at *4 (N.D. Ohio Dec. 31, 2013) (“It is irrelevant whether the additional testimony is consistent or inconsistent with prior testimony: the only acceptable changes are those that correct either typographical or transcription errors.”); Sanny v. Trek Bicycle Corp., 2013 WL 1912467, at *14 (D. Minn. May 8, 2013) (striking errata that “reflect an attempt to bolster the substance and credibility of [plaintiff’s expert’s] testimony”); Thomas v. Wal-Mart Louisiana, LLC, 2013 WL 1180909, at *1 (W.D. La. March 20, 2013) (following Greenway; striking errata that are “material and pertain directly to key issues in the case”) (footnote omitted); EEOC v. Skanska USA Building, Inc., 278 F.R.D. 407, 412 (W.D. Tenn. 2012) (a party “cannot change [a deponent’s] responses from “Yes” to “No” by way of an errata sheet under Rule 30(e)”); Cham v. McNeilus Truck & Manufacturing, Inc., 2012 WL 12873768, at *3 (D. Minn. July 9, 2012) (“Allowing [deponent] to make the numerous, wholesale changes he proposes would be unjust and inefficient, and essentially would render hours of deposition testimony meaningless. A deposition transcript is not a first draft.”); Diamondback Firearms, LLC v. Saeilo, Inc., 2012 WL 12904290, at *2 (M.D. Fla. July 6, 2012) (“Changing an unequivocal ‘yes’ to an unequivocal ‘no,’ however, is a material, significant alteration, not a mere slip of the tongue.”); Walker v. 9912 E. Grand River Assocs., LP, 2012 WL 1110005, at *3 (E.D. Mich. April 3, 2012) (“a deponent [may] correct only typographic and transcription errors”); E.I. du Pont de Nemours & Co. v. Kolon Industries, Inc., 277 F.R.D. 286, 297 (E.D. Va. 2011) (“It makes no sense to allow a deponent to change sworn testimony merely because after the deposition he wishes that he had said something other than what was said. Indeed, to adopt such an approach would be to set at naught the efficacy of the deposition process.”); Touchcom, Inc. v. Bereskin & Parr, 790 F. Supp.2d 435, 465 (E.D. Va. 2011) (striking “errata entries and declaration statement [that] strike this Court as a bit too convenient”); Lee v. Zom Clarendon, L.P., 689 F. Supp.2d 814, 816 n.3 (E.D. Va. 2010) (“[T]he errata sheet clearly makes substantive changes, not technical or typographical changes, to plaintiff’s deposition testimony. Altering deposition testimony in this manner is not a permissible use of errata sheets.”), aff’d, 453 F. Appx. 270 (4th Cir. 2011); Bartos v. Pennsylvania, 2010 WL 1657284, at *8 (M.D. Pa. April 23, 2010) (“the errata sheets tendered here are improper . . . because they attempt to do something that deponents are not permitted to do through errata sheets − they treat the sworn testimony of these witnesses as ‘a take home examination’ which can be altered for tactical reasons or to reflect what the witnesses wish that they had said”); Harden v. Wicomico County, 263 F.R.D. 304, 308 (D. Md. 2009) (striking “post-deposition ‘correction’ . . . based on [an] explanation, likely supplied by [the witness’] counsel”); Murray v. Conseco, Inc., 2009 WL 1884372, at *8 (S.D. Ind. June 25, 2009) (striking “errata sheets [that] made material and contradictory changes to . . . deposition testimony”); McCarver v. PPG Industries, Inc., 243 F.R.D. 668, 669 (N.D. Ala. 2007) (quoting and following Greenway, supra); Crowe v. Marchand, 2006 WL 5230014, at *1 (D.R.I. Aug. 17, 2006) (“the purpose of an errata sheet is to correct alleged inaccuracies in what the deponent said at his deposition, not to modify what the deponent said for tactical reasons or to reflect what he wishes that he had said”); Reynolds v. International Business Machines Corp., 320 F. Supp.2d 1290, 1301 (M.D. Fla. 2004) (“disregard[ing]” errata sheet because plaintiff’s “answers in his deposition do not reflect any obvious confusion that would justify the material alterations the errata sheet attempts to make to his original testimony”), aff’d, 125 Fed. Appx. 982 (11th Cir. 2004); Wigg v. Sioux Falls School District 49-5, 274 F. Supp.2d 1084, 1091 (D.S.D. 2003) (“If a party were allowed to create material factual disputes by altering one’s deposition testimony via an errata sheet, summary judgment would rarely, if ever, be granted. Parties should not be able to evade an answer given under oath during a deposition when it is later used against them by simply stating the opposite in the errata sheet.”), aff’d in part, rev’d in part on other grounds, 382 F.3d 807 (8th Cir. 2004) (errata sheet issue abandoned); S.E. Technologies, Inc. v. Summit Electric Supply Co., 2002 WL 34705612, at *3 (D.N.M. Jan. 4, 2002) (“reject[ing deponent’s] attempts to unspeak what was spoken”; “The purpose of Rule 30 is to correct errors to ensure accuracy of the transcript; not to reflect on and thereafter craft more convenient responses to questions.”); Rios v. Welch, 856 F. Supp. 1499, 1502 (D. Kan. 1994) (“a plaintiff is not permitted to virtually rewrite portions of a deposition, particularly after the defendant has filed a summary judgment motion, simply by invoking the benefits of Rule 30(e)”), aff’d, 67 F.3d 1543 (10th Cir. 1995) (issue not preserved).
We didn’t have time to research this issue adequately under the laws of fifty states, but we did have a couple of state court cases drop into our laps. See Christian v. Wal-Mart Stores East, LP, 2010 WL 2621356, at *2 (Ohio App. June 29, 2010) (“changes in Errata sheet-which completely change the deposition testimony-cannot be used to defeat a Motion for Summary Judgment”); Albrecht v. Bennett, 44 P.3d 838, 844 (Utah App. 2002 (expressly agreeing with Greenway).
Finally, a few practical pointers from the cases. Courts have found it easier to allow substantive tinkering with sworn testimony when questions and answers have to be translated into different languages, so in this situation, plan ahead to prepare for such an event. Given frequent claims by deponents that they were “confused,” detailed opening instructions to the deponent about speaking up if confused can help a great deal. A second counter is an strong invitation to opposing counsel to cross-examine the witness. Another source of excuses about garbled questions and answers are depositions conducted by telephone. In that situation, in addition to the above, it helps to have the witness videotaped. Finally, carefully consider what opening instructions are advisable to the witness concerning correcting errors. Do not make the mistake of telling the deponent in broad language that s/he will be able to change the testimony. That kind of instruction only invites errata funny business. Be specific about only limited types of errata being permitted, and emphasize, again, that the deponent should speak up if confused.