Are Deposition Errata Sheets Important?

Personally it is rare in my practice that deposition errata sheets become an issue. What happens if the deponent actually uses the errata sheet? This post discusses the impact under the federal rules.

Rule 30(e)(1) provides that “[o]n request by the deponent or a party before the deposition is completed, the deponent must be 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.” “As a threshold, Rule 30(e)(1) requires the party or deponent to request review of the deposition before the deposition itself is completed.” EBC, Inc. v. Clark Building Systems, Inc., 618 F.3d 253, 265 (3d Cir. 2010). If the deponent does not timely request the opportunity to “read and sign” then the opportunity to make changes is waived.

In re Weatherford Int’l Sec. Litig., 2013 U.S. Dist. LEXIS 120321 (S.D.N.Y. Aug. 23, 2013) addressed this question and several others concerning errata sheets in the context of 30(b)(6) depositions. Plaintiff noticed a 30(b)(6) deposition, to which the defendant provided four responsive designees. Two designees timely invoked Rule 30(e)(1), two did not. The defendant wanted all four designees to read and sign. The court concluded a 30(b)(6) deposition, even of multiple designees, is one deposition and only one designee need invoke Rule 30(e)(1) for it to apply to all designees. “[R]egardless of the number of witnesses that Weatherford designated, the deponent remains Weatherford, and the depositions of the four Rule 30(b)(6) designees should be treated as that of a single deponent for purposes of Rule 30(e).”

In re Weatherford also then discussed the relatively minimal importance of errata sheets. Even if errata sheets are executed, “the plaintiffs nevertheless remain able to utilize the original answers provided by Weatherford’s designee, and they will have the opportunity to impeach Weatherford’s testimony at trial with any inconsistencies.” “[W]hen a party amends his testimony under Rule 30(e), the 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.” Podell v. Citicorp Diners Club, 112 F.3d 98, 103 (2d Cir. 1997).

Second, “even if Weatherford were barred from attaching the errata sheets, the plaintiffs ‘could not reasonably[] suggest that a witness would be precluded by his or her deposition testimony from giving different testimony at trial.'” (quoting Toland v. Forest Laboratories, Inc., 2001 U.S. Dist. LEXIS 223, 2001 WL 30617 (S.D.N.Y. Jan. 11, 2001). “[T]he only effect of not allowing the defendant to attach the errata sheets would be to disadvantage litigants by depriving them of early notice of corrections in deposition testimony.”

Finally, the Weatherford “plaintiffs also argue that the errata sheets submitted by the defendant should be rejected because they rewrite the testimony altogether. Courts in the Second Circuit construe Rule 30(e) broadly, permitting any changes to the deposition to be considered as part of the record, even where they contradict the original answers.” (internal quotations and citations omitted). “Thus, even if the errata sheets that the defendant have submitted make substantive changes to the testimony, they are permissible.”