Depositions — Rule 30(e) — Deponent May Change Testimony Substantively, But Failure to Set Forth Reasons for Changes in Errata Sheet Requires Striking of All Changes — Filing of Amended Errata Sheet Barred

The plaintiff’s expert in Betts v. General Motors Corp., 2008 U.S. Dist. LEXIS 54350 (N.D. Miss. July 16, 2008), made material changes to his deposition testimony in his errata sheet but gave no reason for the changes. Held, changes barred and no amended errata sheet permitted:

Rule 30(e) of the Federal Rules of Civil Procedure provides that "the deponent shall have thirty days . . . in which to review the transcript or recording and, if there are changes in form or substance, to sign a statement reciting such changes and the reasons given by the deponent for making them." Although the Fifth Circuit has not further defined the scope or context of this rule, nor published any opinions constituting binding precedent on this subject, it has held in an unpublished opinion that the requirements of Rule 30(e) must be strictly followed. Reed v. Hernandez, 114 Fed. Appx. 609, 611 (5th Cir. 2004). Among other courts, however, including sister districts within this circuit, a split as to the proper interpretation of Rule 30 has emerged. See Order in Sills v. Enproptech Corp., 2006 WL 5157684 (No. 3:05cv32-B-A, N.D. Miss. June 27, 2006).

The majority view accords a plain meaning approach or literal interpretation to Rule 30 and, consequently, allows any change in form or substance regardless of whether convincing explanations support the change. E.g., Lutig v. Thomas, 89 F.R.D. 639, 641 (D.C. Ill. 1981); Reilly v. TXU Corp., 230 F.R.D. 486, 490 (N.D. Tex. 2005). Proponents of this view support their position by noting that "[t]he language of the Rule places no limitations on the type of changes that may be made by a witness before signing his deposition." Id. (internal citations omitted). Judges utilizing the majority view should not evaluate the credibility of the reasons cited by the deponent for changing his deposition but should merely ensure that the deponent has complied with the technical aspects of the rule. E.g., Burch v. Piqua Engineering, Inc., 152 F.R.D. 565, 566-67 (S.D. Ohio 1993).

The court is persuaded by the fact that the majority of federal courts addressing this Rule 30(e) issue have interpreted the language of the rules of federal civil procedure as literally as possible and have allowed any form of change to a deposition. Consequently, the procedural aspects and clear instructions provided by Rule 30(e) must be followed by a deponent. Although the majority allows "any change in form or substance regardless of whether convincing explanations support the changes," the deponent must still abide by the procedures set forth by the rules and include stated reasons for his proposed corrections. Sills, 2006 WL 5157684.***

This court...finds it highly probable from the holding of Reed v. Hernandez that the Fifth Circuit would require strict compliance with the procedural aspects of Rule 30. In Reed, the Fifth Circuit affirmed a district court's determination to exclude an errata sheet based on its untimely filing and improper subject matter stating, "Rule 30(e) does not provide any exceptions to its requirements." .... The Fifth Circuit's emphasis on the importance of following the rule's explicit instructions on the thirty-day time period clearly carries to the requirement that a deponent provide reasons for any proposed changes or corrections to a deposition. Therefore, plaintiffs' motion for leave to submit an amended errata sheet is denied, and defendant's motion to strike Steve Batzer's proposed deposition changes is granted.

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