Deposition Errata Sheets: To What Extent May Changes Be Made? — Does Sham Affidavit Rule Apply? — Circuit Split — Substantive vs. Transcription Errors vs. New Evidence or Confusion Rectifying

LAW REGARDING ERRATA CORRECTIONS

Securities and Exchange Commission v. Goldstone, 2016 U.S. Dist. LEXIS 61657 (D. N.M. May 10, 2016):

Rule 30(e) of the Federal Rules of Civil Procedure allows the deponent, within 30 days after notification that the transcript is available, to: "(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." Fed. R. Civ. P. 30(e)(1)(emphasis added). Some courts have interpreted "substance" in a very restrictive manner, allowing changes only to ensure that the transcript accurately reflects what the deponent said. In Greenway v. International Paper Co., 144 F.R.D. 322 (W.D. La. 1992)(Little, J.), the Honorable F.A. Little, United States District Judge for the Western District of Louisiana, rejected a plaintiff's attempt to make extensive changes to a deposition transcript that effectively changed the deponent's answers. See 144 F.R.D. at 325. For example, the [*122]  plaintiff sought the following change:

   As stated in the deposition:

No, sir.

Correction desired:

Yes, sir. For example, after I filed the quick-hour grievance in June of 1990, Jimmy retaliated against me by forbidding me from using the telephone while at work, taking any jobs without his permission and talking to any management personnel without first talking to him. Additionally, there was a fourth step grievance meeting scheduled for 8:00 o'clock a.m., in connection with my quick-hour grievance. However, Jimmie failed to inform me about this this (sic) meeting; and, in particular, failed to inform me of the date and time set for said meeting. Mike Hamil had to call Jimmie around 8:15 o'clock a.m., and Jimmie had to come get me off my job. Jimmie then drove me to Mike Hamil's office, and he made it clear at that time that he was not at all happy with me. I believe that Jimmie deliberately did not tell me about this meeting.

Greenway v. Int'l Paper Co., 144 F.R.D. at 323. Judge Little explained that rule 30(e)'s "obvious" purpose is to allow a deponent to correct a reporter's substantive error. 144 F.R.D. at 325. He explained:

   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 [*123]  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.

144 F.R.D. at 325. See Boomsma v. Star Transport, Inc., 202 F. Supp. 2d 869, 876-77 (E.D.Wis. 2002)(striking subsequently given affidavits when "[i]t is obvious that the plaintiffs are attempting to 'repair' their experts' deposition testimony by coming forward with affidavits more in line with their . . . arguments").

The majority of courts have adopted a more liberal approach based on the rule's plain language. See Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383, 389 (7th Cir. 2000). These courts have held that rule 30(e)'s plan language "authorizes changes in form or substance." Thorn v. Sundstrand Aerospace Corp., 207 F.3d at 389 (emphasis in original). See Pepsi-Cola Bottling Co. of Pittsburgh v. Pepsico, Inc., No. CIV.A.01-2009-KHV, 2002 U.S. Dist. LEXIS 5840, 2002 WL 511506, at *2 (D. Kan. Apr. 3, 2002)(Waxse, M.J.)("Under this approach, the courts apply a broad reading to Rule 30(e)'s language[.]"). To minimize the danger that deponents will make extensive changes to their testimony -- to reflect what they wish they had said, rather than their actual statements -- these courts require that the original transcript be retained "so that the trier of fact can evaluate the honesty of the evaluation." Thorn v. Sundstrand Aerospace Corp., 207 F.3d at 389. See Podell v. Citicorp Diners Club, Inc., 112 F.3d 98, 103 (2d Cir. 1997)("[W]hen a party amends his testimony under Rule 30(e), the original answer to the deposition questions will remain part of the record [*124]  and can be read at the trial.")(quotation omitted).

The Tenth Circuit follows the more restrictive approach, prohibiting deponents from supplementing their deposition testimony under rule 30(e). See Havens v. Johnson, 783 F.3d 776, 780 n.3 (10th Cir. 2015); BancFirst ex rel. Estate of M.J.H. v. Ford Motor Co., 422 F. App'x at 666 ("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."); Boyd v. Home Depot, Inc., 2013 U.S. Dist. LEXIS 14553, 2013 WL 394187, at *2 ("The Tenth Circuit interprets Rule 30(e) narrowly, thus limiting permissible changes to deposition testimony."). In Garcia v. Pueblo Country Club, 299 F.3d 1233 (10th Cir. 2002), the defendant relied on "errata from deposition testimony where that errata strayed substantively from the original testimony." 299 F.3d at 1242 n.5. The Tenth Circuit, citing Greenway v. International Paper Co., condemned this attempt:

   We 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. See, e.g., Coleman v. Southern Pac. Transp. Co., 997 F. Supp. 1197, 1205 (D. Ariz. 1998)(discrediting deposition testimony directly contradicted by errata sheet); S.E.C. v. Parkersburg Wireless, L.L.C., 156 F.R.D. 529, 535 (D.D.C. 1994)(noting modern trend in which courts do not allow a party "to make any substantive change she so desires" in deposition testimony); Rios v. Bigler, 847 F. Supp. 1538, 1546-47 (D. Kan. 1994)(stating that the court will consider only those changes which clarify the deposition, and not those which materially [*125]  alter it); Greenway v. International Paper Co., 144 F.R.D. 322, 325 (W.D. La. 1992)(suppressing deponent's attempt to rewrite material answers given in deposition); Barlow v. Esselte Pendaflex Corp., 111 F.R.D. 404, 406 (M.D.N.C. 1986)(refusing to consider changes to deposition that were made in bad faith).

299 F.3d at 1242 n.5.

The Tenth Circuit has also analogized corrections under rule 30(e) to the submission of "sham affidavits." Burns v. Bd. of Cty. Comm'rs of Jackson Cty., 330 F.3d 1275, 1278 (10th Cir. 2003)("This civil rights appeal raises the following notable issue: whether deposition corrections are subject to a 'sham affidavit' analysis. We answer this question in the affirmative."). Parties seeking to avoid summary judgment based on unfavorable deposition testimony use sham affidavits to "correct" that testimony by creating a false issue of material fact. See Jiminez v. All Am. Rathskeller, Inc., 503 F.3d 247, 253 (3d Cir. 2007)("A sham affidavit is a contradictory affidavit that indicates only that the affiant cannot maintain a consistent story or is willing to offer a statement solely for the purpose of defeating summary judgment."); Kurpiel v. Calumet River Fleeting, 691 F. Supp. 2d 827, 832 (N.D. Ill. 2010)(Dow, J.); C. Wright & A. Miller, Federal Practice & Procedure § 2738, n.12 (3d ed. 1998).

The Tenth Circuit set out its test for sham affidavits in Franks v. Nimmo, 796 F.2d 1230 (10th Cir. 1986):

   Factors relevant to the existence of a sham fact issue include whether the affiant was cross-examined during his earlier testimony, whether the affiant had access to the pertinent evidence at the time of his earlier [*126]  testimony or whether the affidavit was based on newly discovered evidence, and whether the earlier testimony reflects confusion which the affidavit attempts to explain.

796 F.2d at 1237. See Rios v. Bigler, 67 F.3d 1543, 1551 (10th Cir. 1995)(applying this test to alleged sham affidavits); Martinez v. Barnhart, 177 F. App'x 796, 800 (10th Cir. 2006)(same). The Tenth Circuit applied this test to a plaintiff's rule 30(e) corrections in Burns v. Board of County Commissioners of Jackson County, concluding that the corrections did not satisfy any of the three factors from Franks v. Nimmo.23 See Burns v. Bd. of Cty. Comm'rs of Jackson Cty., 330 F.3d at 1282. First, it noted that the deponent was cross-examined at his deposition. See 330 F.3d at 1282. Second, it explained that the corrections were not based on any newly discovered evidence. See 330 F.3d at 1282. Third, the Tenth Circuit noted that, "although Burns asserts that he was confused at his deposition, his answers to the direct questions posed by counsel do not reflect any obvious confusion -- as opposed to indecisiveness or inconsistency -- that the corrections would need to clarify." 330 F.3d at 1282. Cf. Bouvier v. Northrup Grumman Ship Sys., Inc., 350 Fed. Appx. 917, at *2 (5th Cir. 2009)(unpublished)("Affidavits submitted in opposition to a motion for summary judgment may supplement deposition testimony, but cannot contradict prior testimony without explanation.")(citing S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 496 (5th Cir. 1996)); E.E.O.C. v. Yellow Freight Sys., Inc., 253 F.3d 943, 952 (7th Cir. 2001)("As a general rule, the law of this circuit does not permit a party to create an [*127]  issue of fact by submitting an affidavit whose conclusions contradict prior deposition or other sworn testimony.")(internal quotation omitted).

23   The Court notes that the law on this point is somewhat confused. The earlier cases on point appeared to allow corrections only for transcription errors:

   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.

Greenway v. Int'l Paper Co., 144 F.R.D. at 325. The Tenth Circuit's decision to apply the sham affidavit rule to rule 30(e) corrections appears to allow for additional changes, provided that the changes satisfy the Franks v. Nimmo factors. See Burns v. Bd. of Cty. Comm'rs of Jackson Cty., 330 F.3d at 1282. For example, a court reporter could accurately transcribe a deponent's statements. The deponent could have been cross-examined at his deposition, and then could have discovered new evidence changing his answers or simply noted that he was confused at the deposition. A strict application of Greenway v. International Paper Co. would not allow for any changes, [*128]  while the Franks v. Nimmo factors would authorize changes. At least one of the Tenth Circuit's recent cases on point does not cite Burns v. Board of County Commissioners of Jackson County, but the Court will apply the three-factor test where necessary to ensure that its decision is consistent with existing precedent. See BancFirst ex rel. Estate of M.J.H. v. Ford Motor Co., 422 F. App'x at 666.

Finally, at least two district courts have allowed changes as a matter of course if they are not material. See Boyd v. Home Depot, Inc., 2013 U.S. Dist. LEXIS 14553, 2013 WL 394187, at *4 ("Because the Court finds that under these circumstances Gillis's Rule 30(e) modifications are not material, the Court need not address the three Burns factors."); Myers v. Dolgencorp, Inc., No. 04-4137-JAR, 2006 U.S. Dist. LEXIS 6559, 2006 WL 408242, at *1 (D. Kan. Feb. 15, 2006)(Robinson, J.)("Fed. R. Civ. P. 30(e) permits non-material changes to deposition testimony, as well as those material changes that satisfy the test adopted by the Tenth Circuit in Burns v. Board of County Commissioners of Jackson County, Kansas."). These courts relied on the Tenth Circuit's footnote in Garcia v. Pueblo Country Club, which stated: "We 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." 299 F.3d at 1242 n.5 (emphasis added).24

24   The Court questions whether [*129]  it makes sense to require district courts to determine whether specific proposed changes to a deposition transcript are "material" after the summary judgment stage. The definition of "material" in Boyd v. Home Depot, Inc. and Myers v. Dolgencorp, Inc. comes from a Tenth Circuit summary judgment standard. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). It holds that "[a]n issue of fact is 'material' if under the substantive law it is essential to the proper disposition of the claim." Adler v. Wal-Mart Stores, Inc., 144 F.3d at 670. See Myers v. Dolgencorp, Inc., 2006 U.S. Dist. LEXIS 6559, 2006 WL 408242, at *1 ("A change is material if it bears on an essential element of a claim or defense."). The Court notes that it is difficult, if not impossible to determine whether the addition of a single word in a line of a deposition transcript, which may be hundreds of pages long, "is essential to the proper disposition of the claim," when it is dealing with an errata motion. Adler v. Wal-Mart Stores, Inc., 144 F.3d at 670. For example, a change that tends to reinforce an expert witness' credibility or attention to detail may be important, but may be only tangentially relevant to any element of a claim or defense.

The Court has applied these principles in two prior cases. In Armeanu v. Bridgestone/Firestone North American Tire, LLC, No. CIV 05-619 JB/DJS, 2006 U.S. Dist. LEXIS 95230, 2006 WL 4060665 (D.N.M. Sept. 26, 2006)(Browning, J.), the Court noted that a "significant portion" [*130]  of an expert's affidavit "contradicts or is in tension with his deposition testimony." 2006 U.S. Dist. LEXIS 95230, 2006 WL 4060665, at *14. The Court concluded that, "[b]ecause Johnson was cross-examined at his deposition, because he had access to pertinent evidence at the time of his deposition, and because his deposition testimony does not reflect any confusion, the Court has the authority to disregard those portions of his affidavit that contradict his testimony." 2006 U.S. Dist. LEXIS 95230, 2006 WL 4060665, at *14. The Court nonetheless tried to "harmonize the two sets of testimony to avoid the exclusion of relevant evidence." 2006 U.S. Dist. LEXIS 95230, 2006 WL 4060665, at *14. In Radian Asset Assurance, Inc. v. College of Christian Brothers of New Mexico, No. CIV 09-0885 JB/DJS, 2010 U.S. Dist. LEXIS 127390, 2010 WL 5173316 (D.N.M. Nov. 15, 2010)(Browning, J.), the plaintiff corporation stated that its rule 30(b)(6) representative "may need to supplement its Rule 30(b)(6) testimony" after his deposition. Radian Asset Assur., Inc. v. Coll. of Christian Bros. of New Mexico, 2010 U.S. Dist. LEXIS 127390, 2010 WL 5173316, at *3. The Court commented that "[d]eponents do not have the right to 'supplement' their deposition testimony under the Federal Rules of Civil Procedure[.]" 2010 U.S. Dist. LEXIS 127390, 2010 WL 5173316, at *4. It added that, "like any other witness that gives testimony, Radian Asset may be impeached before the factfinder. A party can impeach its own witness, see Fed. R. Evid. 607, so Radian Asset can elicit testimony from another witness to impeach itself." 2010 U.S. Dist. LEXIS 127390, 2010 WL 5173316, at *4.

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