Post-Deposition Changes to Deposition Transcript — Circuit Split as to Whether Material Substantive Alterations Are Permissible under Rule 30(e)

Patel v. Patel (In re Patel), 2012 Bankr. LEXIS 3277 (Bankr. D. N.M. July 13, 2012):

Plaintiffs ask the court to strike the changes that Dipak Patel and Padma Patel have made to their deposition transcripts. Pursuant to Rule 30(e), a deponent is permitted to make "changes in form or substance" to a deposition transcript by signing a statement that lists the changes and provides a reason for making the changes.

Footnote 1. Rule 30(e) provides:

On request by the deponent or a party before the deposition is completed, the deponent must be allowed 30 days after being notified by the officer that the transcript or recording is available in which:

(A) To review the transcript or recording; and (B) If there are changes in form or substance, to sign a statement listing the changes and the reasons for making them.

There is a split in authority in the application of Rule 30(e) as it relates to changes to a deposition transcript that materially alter the testimony. See 8A Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2118 (2010)(noting the split in authority); E.E.O.C. v. Skanska USA Building, Inc., 278 F.R.D. 407, 410-411 (W.D.Tenn. 2012)(recognizing the split in circuit authority on this issue and explaining the circuits' different interpretations of Rule 30(e)). Under the traditional approach to Rule 30(e), a deponent is permitted to make "any changes regardless of whether they contradicted deposition testimony." Summerhouse v. HCA Health Services of Kansas, 216 F.R.D. 502, 504 (D.Kan. 2003)(citing Podell v. Citicorp Diners Club, Inc., 112 F.3d 98, 103 (2nd Cir. 1997)(remaining citations omitted). The court does not consider whether the reasons for making the change are sufficient, reasonable or legitimate. Podell v. Citicorp., 112 F.3d at 103 (citation omitted). Under this approach, the original answers nevertheless remain part of the record, even though the deponent is permitted to make the changes to the deposition transcript. Id. (citations omitted).

Other courts have refused to allow changes to deposition testimony when the changes are material. See, e.g., S.E. Technologies, Inc. v. Summit Elec. Supply Co., Inc., 2002 WL 34705612 (D.N.M. 2002). In taking this view, courts often look to Greenway v. International Paper Co., 144 F.R.D.322 (W.D.La. 1992), wherein the court explained that

[t]he 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, 144 F.R.D. at 325.

The Tenth Circuit favors this more restrictive approach to Rule 30(e), whereby the court may refuse to allow a party to make corrections to a deposition transcript if such changes materially alter the original testimony. See Garcia v. Pueblo Country Club, 299 F.3d 1233, 1242 n.5 (10th Cir. 2002)(noting that the Tenth Circuit did not "condone counsel's allowing for material changes to deposition testimony . . . " and citing with approval several cases, includingGreenway, that take the more restrictive approach to Rule 30(e)). See also, Burns v. Board of County Commissioners of Jackson County, 330 F.3d 1275, 1282 (10th Cir. 2003)(applying a "sham affidavit" approach to a request to make corrections to a deposition transcript pursuant to Rule 30(e), and finding that the district court correctly disregarded the corrected testimony in determining a motion for summary judgment).

"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." S.E. Technologies v. Summit, 2002 WL 34705612 at *3.

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