In a recent decision, Judge Urbanski addressed when a party is
allowed to make changes to deposition testimony by means of an
errata sheet under Federal Rule of Civil Procedure 30(e).
This contract dispute involved ant-infested wooden pallets
manufactured by plaintiff and sold to defendant. The case was
before the court on plaintiff's summary judgment motion and
objection to defendant's errata sheets purporting to change the
testimony of defendant's witnesses (including its 30(b)(6)
witness) which were provided to plaintiff only days before the
deadline to file dispositive motions.
Rule 30(e) provides that after a deposition transcript is prepared,
the deponent is allowed 30 days "to review the transcript ...
[and] if there are changes in form or substance, to sign a
statement listing the changes and the reasons for making
them." This statement containing those changes is referred to
as an "errata sheet."
As noted by Judge Urbanski, courts uniformly allow deponents to
make minor form changes and corrections to transcription errors,
but the Fourth Circuit has not addressed the outer scope of Rule
30(e) and thus there is a difference of opinion among lower courts
regarding the ability to make more substantive changes to
deposition testimony.
While the Court noted that there were two general lines of
cases--the "traditional" and "modern" approach
to Rule 30(e)--, the Court decided instead to adopt the
"case-by-case approach" developed by the Third
Circuit.
Under the traditional approach, deponents can made
substantive--even contradictory--changes to prior testimony. This
permissive approach allows almost any change in an errata sheet,
although both versions remain available for purposes of
cross-examination.
In contrast, the modern approach interprets Rule 30(e) more
narrowly and only allows for corrections for errors made by the
court reporter. One case, cited by the Court, explained that
"[t]he Rule cannot be interpreted to allow one to alter what
was said under oath. If that were the case, one could merely answer
the question with no thought at all, then return home and plan
artful responses.... A deposition is not a take home
examination." (quoting Trout v. First Energy Generation
Corp., 339 F. App/x 560, 565 (6th Cir. 2009)).
After explaining these two approaches, Judge Urbanksi determined
that the Court need not adopt either the permissive traditional
approach or the narrow modern approach, because there was a third
approach that best addresses the situation before the Court.
As explained by the Court, the Third Circuit's more flexible
case-by-case approach "allows deponents to make necessary
changes via Rule 30(e) without also 'generat[ing] from whole
cloth a genuine issue of material fact (or eliminate[ing] the same)
simply by re-tailoring sworn deposition testimony to his or her
satisfaction.'" (quoting EBC Inc. v. Clark Bldg. Sys.
Inc., 618 F.3d 258, 268 (3d Cir. 2010)).
The case-by-case approach is similar to the "sham
affidavit" doctrine, which prevents a party from avoiding
summary judgment by submitting an affidavit that contradicts prior
testimony. Similarly, under the Third Circuit's flexible
approach to Rule 30(e), "the court has discretion to ignore
errata sheets that propose 'substantive changes that materially
contradict prior deposition testimony, if the party proffering the
changes fails to provide sufficient justification.'" Given
that the Fourth Circuit has recognized the "sham
affidavit" doctrine, Judge Urbanski reasoned that "the
Third Circuit's case-by-case approach to Rule 30(e) best
accounts for the facts presented here."
Applying this case-by-case approach, the Court determined that
defendant's errata sheets should be ignored because they
directly contradicted prior testimony, were submitted only days
before the deadline for summary judgment motions, were supported by
only perfunctory justifications and were focused on the very issues
at stake in the summary judgment motion. Thus, the Court held that
"[a]bsent a more compelling justification for the abrupt
change in testimony, the court will not allow [defendant] to use
Rule 30(e) to inject new factual disputes into the summary judgment
record that did not exist previously."
The Court went on to grant in part and deny in part the summary
judgment motion, and reserved judgment on whether the errata sheet
should be stricken for purposes of trial. The Court concluded:
Further, as noted above, the court need not resolve the larger dispute about the proper scope of Rule 30(e) that has thus far divided courts in this circuit. In the situation presented here-where a party changes sworn testimony directly relevant to its potential liability mere days before the deadline for dispositive motions-the court is persuaded that Rule 30(e) does not allow parties to make substantive changes to deposition testimony in an effort to avoid an imminent motion for summary judgment.
Until the Fourth Circuit addresses the issue, Judge Urbanski's opinion will likely be cited in subsequent civil litigation to delineate the scope of errata sheets under Rule 30(e). The Court's full opinion in Grottoes Pallet Company, Inc. v. Graham Packaging Plastic Products, Inc., 2016 WL 93869 (Jan. 7, 2016) is available here.
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