Commercial Litigation and Arbitration

Deposition Errata Sheets — May Deponent Change Substance of Testimony or Make Only Non-Substantive Corrections? — Circuit Split

Maynard v. Stonington Community Ctr., 2016 U.S. Dist. LEXIS 64982 (D. Conn. May 17, 2016):

"The circuits are split as to the scope [*2]  of permissible changes that may be made to a deposition transcript under Rule 30(e) . . . . Some courts have held that the only changes permitted by Rule 30(e) are non-substantive in nature, such as the correction of typographical or spelling errors . . . . Other courts, including the Second Circuit, have allowed deponents to make any change, in form or substance, to their deposition transcript." N. Trade U.S., Inc. v. Guinness Bass Imp. Co., No. 3:03-CV-1892 (CFD)(TPS), 2006 WL 2263885, at *2 (D. Conn. Aug. 7, 2006) (citations omitted). Specifically, the Second Circuit has explained that, "the language of the Rule places no limitations on the type of changes that may be made . . . nor does the Rule require a judge to examine the sufficiency, reasonableness, or legitimacy of the reasons for the changes, even if those reasons are unconvincing." Podell v. Citicorp Diners Club, Inc., 112 F.3d 98, 103 (2d Cir. 1997) (citations and internal quotation marks omitted). As a practical matter,

   when a party amends [her] testimony under Rule 30(e), [t]he original answer to the deposition questions will remain part of the record and can be read at the trial . . . . Nothing in the language of Rule 30(e) requires or implies that the original answers are to be stricken when changes are made . . . . [B]ecause [a]ny out-of-court statement by a party is an admission, a deponent's original [*3]  answer should [be] admitted [into evidence] even when [she] amends [her] deposition testimony-with the deponent [o]f course . . . free to introduce the amended answer and explain the reasons for the change.

Id. (citations and internal quotation marks omitted).

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