Expansive Reading of Rule 30(e) Adopted in Massachusetts
By Natasha A. Saggar, Litigation News Associate Editor – March 12, 2012
Any and all changes “whether in form or substance, clarifying or contradictory” can be made in errata sheets to alter deposition testimony, according to a recent opinion issued by the Massachusetts Supreme Court. This view, accepted by a majority of the nation’s courts, is consistent with the plain language of Rule 30(e) and resists the growing trend toward a narrower interpretation of the rule.
In Smaland Beach Assoc. v. Genova, several defendants submitted errata sheets with extensive changes that substantively changed their deposition testimony. In some cases, answers given at the deposition were wholly reversed from an affirmative to a negative response, explanations were added to the existing testimony, or existing narratives were struck and replaced with different answers.
Although the validity of the errata sheets was not at issue in the case, the court used the opportunity to clarify their proper use in altering deposition testimony under Massachusetts Rule of Civil Procedure 30(e)—modeled after Federal Rule of Civil Procedure 30(e). The court noted the diverging views on this issue.
Majority Approach: Anything Goes
A majority of federal courts allow any changes “in form or substance,” so long as those changes are accompanied by a reason and are submitted within 30 days after the transcript of the deposition is made available. This follows the plain language of Rule 30(e) itself.
The majority approach does not attempt to draw lines between a permissible and impermissible type of change to a deposition. However, one of the weaknesses of this approach is that “it can be thought of as subject to attorney manipulation and could undermine the real utility of depositions, which is to allow a direct exchange of information between witness and the attorney asking the questions, without the lawyers getting in the way,” says Nash E. Long, Charlotte, NC, cochair of the ABA Section of Litigation’s Trial Practice Committee.
Growing Minority: A Deposition Is Not a Take-Home Exam
Perhaps in response to the concerns surrounding the majority approach, a growing minority of courts have adopted a narrower interpretation of the rule. These courts either restrict the rule to typographical or transcription errors, or permit clarifying, but not contradictory changes. While this interpretation may seem appealing, in practice it is not easy to administer.
“There will be a gray area between those types of changes it will allow and more substantive areas that could really alter the meaning of the answer,” says Long. “Courts may not be able to draw that line consistently and it certainly would not be easy for practitioners in advance to know where that line might be drawn.”
Moreover, the minority approach could prevent legitimate corrective changes. “The system is designed to get at the truth; if the witness just makes a mistake and wants to correct that, they should be permitted to do so in some form or another,” says Joan K. Archer, Kansas City, MO, cochair of the Section of Litigation’s Pretrial Practice and Discovery Committee. “There needs to be some flexibility.”
Ultimately the Massachusetts Supreme Court agreed and adopted the traditional, majority approach, finding that the scheme “advances the underlying purpose of the discovery process, i.e., for the parties to obtain the fullest possible knowledge of the issues and facts before trial.”
Safeguards Against Abuse
This expansive reading of Rule 30(e) does not come without limitations, however. Courts employing this interpretation have put remedial measures in place.
When changes to testimony are submitted in an errata sheet, the original answers remain part of the record and available for impeachment purposes at trial. Additionally, when changes are made to significant matters, the party who took the deposition may reopen the examination for further inquiry. The Massachusetts court also noted an attorney could be subject to sanctions if there is any indication of exploitation of the rule for strategic gain in a case.
However, the most powerful check on abuse of this rule is the damage it can do to a witness’s credibility. “The price to rewriting an answer is that it devalues almost everything else that witness has to say and creates an air of suspicion with the jury,” says Long.
“The split in approaches underlines a simple lesson: Always check the rule for the jurisdiction,” says Ian H. Fisher, Chicago, cochair of the Section’s Pretrial Practice and Discovery Committee. “Remember, the procedural rules of the jurisdiction in which you take a deposition govern the deposition, even if your case is pending in another jurisdiction.”
“The best thing to do is prepare well beforehand so that you don’t have to correct a deposition,” says Long. If something comes up in direct testimony, redirect can be used to clear up any mistakes or confusion. If that is not possible, then certainly an errata sheet can be used to change an answer. “But, be warned,” says Long, “the more you do that, the less credibility you are going to have, and you need to have a good reason to change the answer. The fact that you did not like the answer is not a good reason.”
Keywords: Rule 30(e), Smaland Beach Assoc. v. Genova, deposition
- » Richard G. Stuhan & Sean E. Costello, “Rule 30(e): What You Don’t Know Could Hurt You” (Jan. 2006).
- » Gregory A. Ruehlmann, Jr., A Deposition is Not a Take Home Examination: Fixing Federal Rule 30(e) & Policing The Errata Sheet, 106 Nw. U. L. Rev. -- (2012).
- » Ilya A. Lipin, Litigation Tactics Addressing Changes to Deposition Testimony Through Rule 30(e) Errata Sheet Corrections, 63 Ark. L. Rev. 741 (2010).
- » Kirin K. Gill, Depose and Expose: The Scope of Authorized Deposition Changes Under Rule 30(e), 41 U.C. Davis L. Rev. 357 (2007).
- » Greenway v. Int’l Paper Co., 144 F.R.D. 322 (W.D. La. 1992) (typographical errors only).
- » Hambleton Bros. Lumber Co. v. Balkin Enters. Inc.,, 397 F.3d 1217 (9th Cir. 2005) (clarifying but not contradictory changes).
- » Burns v. Bd. Of County Comm’rs, 330 F.3d 1275 (10th Cir. 2003) (clarifying but not contradictory changes).
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