BUT WAIT! THERE’S MORE! CAN A WITNESS MAKE SUBSTANTIVE CHANGES TO HIS DEPOSITION TESTIMONY AFTER THE FACT?

By Andrea T. Vavonese, Akin, Gump, Strauss, Hauer & Feld, LLP

You are on top of the world. You have just taken a great deposition of a key witness for the opposing side. But wait! There’s more! The witness, who elected to read and sign his transcript, has changed his testimony to something much less helpful to you and indeed self- serving. And he did this in the luxury of his own surroundings and with 30 days to contemplate his choice of words (and consult with his lawyer). But, you think, that can’t possibly be allowed. Think again.

Litigants use depositions to, among other things, nail down a witness’s testimony. A deposition can be a basis for summary judgment. It can be a powerful impeachment tool. It can also be critical to assessing the weaknesses and strengths of your case and determining your litigation strategy. However, the Federal Rules permit substantive changes to deposition testimony within 30 days after the transcript is available to the deponent.

Federal Rule of Civil Procedure 30(e) permits a deponent to review the transcript and change it in form or substance. That rule states:

If requested by the deponent or a party before completion of the deposition, the deponent shall have 30 days . . . in which to review the transcript or recording and, if there are changes in form or substance, to sign a statement reciting such changes and the reasons given by the deponent for making them. . . . 1

Courts are split on how to interpret this rule. Some courts have concluded that the rule is not meant to change substantive testimony unless it is to correct an error made by the court reporter in transcribing the testimony.2 There is a growing body of case law, however, that holds

1 Many states have rules similar to the federal rules. See e.g., Rule 30(e) of the D.C. Superior Court Rules of Civil Procedure; Florida Stat. Rules of Civil Procedure, Rule 1.310(e); Georgia Rules of Civil Practice Code § 9- 11-30(e); N.Y. CPLR 3116; Utah Rule of Civil Procedure 30(e); Rule 4:5(e) of the Rules of the Supreme Court of Virginia. Other states limit changes to deposition transcripts to corrections. See e.g., Illinois Supreme Court Rules, Rule 207 (explicitly prohibiting changes other than corrections); Maryland Rules of Civil Procedure, Rule 2-415(d) (permitting the deponent to make “corrections . . . to conform the transcript to the testimony”). 2 See Eckert v. Kember Financial Services, Inc., 1998 WL 699656 (N.D. Ill. 1998); Lewis v. Virginia Baptist Homes, 1997 WL 102524 at *2, n.1 (W.D. Va. 1997); Rios v. Welch, 856 F. Supp. 1499, 1502 (D. Kan. 1994); Greenway v. Int’l Paper Co., 144 F.R.D. 322, 325 (W.D. La. 1992); Barlow v. Esselte Pendaflex Corp., 111 F.R.D. 404, 406 (M.D.N.C. 1986).

that a deponent can make substantive changes to deposition testimony after the fact.3 At least one Circuit has apparently recognized a compromised approach: permitting substantive changes except that a substantive change that contradicts the original transcript is impermissible unless it corrects an error in transcription.4

Courts Have Held A Deponent Cannot Change His Answer

Those courts that have held that a deponent cannot make substantive changes to the testimony, other than to correct the transcript, have presumably recognized the potential for abuse in permitting such changes. In Greenway v. International Paper Co.5, the court held that the deponent could not substantively alter testimony given under oath by making corrections to her deposition. The court stated:

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. If that were the case, one could merely answer the questions with no thought at all and then return home and plan artful responses. Depositions differ from interrogatories in that regard. A deposition is not a take home examination.6

In Eckert v. Kember Financial Services, Inc.7, the court rejected the plaintiff’s attempt to substantively change her deposition transcript. In that case, the court said that “Congress did not, however, write Rule 30(e) so plaintiffs could create sham issues of fact to defeat summary judgment . . . In other words, if every plaintiff could completely negate damaging testimony after

3 See Podell v. Citicorp Diners Club, Inc., 112 F.3d 98, 103 (2d Cir. 1997); Usiak v. New York Tank Barge Co., 299 F.2d 808, 809 (2d Cir. 1962); ; Pepsi Cola Bottling Co. v. Pepsico, Inc., 2002 U.S. Dist. LEXIS 5840 (D. Kan. 2002); Deloach v. Philip Morris Co., 2002 U.S. Dist. LEXIS 7274 (M.D.N.C. 2002); Foutz v. Town of Vinton, Civil Action No. 7:00cv00337 (W.D. Va. Feb. 1, 2002); Holland v. Cedar Creek Mining, Inc., 198 F.R.D. 651, 653 (S.D. W.Va. 2001); Elwell v. Conair, Inc., 145 F. Supp. 2d 79 (D. Me. 2001); Rios v. AT&T Corp., 36 F. Supp. 2d 1064, 1067 (N.D. Ill. 1999); Innovative Marketing & Tech, L.L.C. v. Norm Thompson Outfitter, Inc., 171 F.R.D. 203, 205 (W.D. Tex. 1997); Hawthorne Partners v. AT&T Technologies, Inc., 831 F. Supp. 1398, 1406 (N.D. Ill. 1993); United States ex. Rel Barbara Burch v. Piqua Engineering, 152 F.R.D. 565, 566-67 (S.D Ohio 1993); Lugtig v. Thomas, 89 F.R.D. 639, 641 (N.D. Ill. 1981). 4 Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383, 389 (7th Cir. 2000); see also Kingsford Fastener, Inc. v. Hitachi Koki, U.S.A., Ltd., 2002 U.S. Dist. LEXIS 8657 at *6, n. 2 (N.D. Ill. 2002). 5 144 F.R.D. 322 (W.D. La. 1992). 6 Id. at 325. 7 1998 WL 699656 (N.D. Ill. 1998).

having thirty days to review and discuss that testimony with his or her attorney, no summary judgment motion ever could be granted.”8

The Prevalent View is to Allow Substantive Changes of Any Kind

Many courts have taken the view that Rule 30(e) is broad and permits any change to the testimony, so long as the change is made in accordance with the rule. Under this line of cases, there are no restrictions on the substance of the changes, and courts will accept the changes, no matter how unconvincing the reasons for the change may be. For example, recently, in Foutz v. Town of Vinton9, the court allowed a deponent to make 19 pages of changes to his deposition testimony.

The opposing party’s hands are not completely tied in such a situation. For one, both the original and changed transcript can be used to impeach the witness and if the changes are wholly inconsistent with the original testimony, the opposing lawyer can use the inconsistent testimony to attack the witness’s credibility.10

Moreover, courts may permit the deposition to be re-opened to allow for further cross- examination on the changed testimony if the court renders the changes so substantial as to effectively render it “incomplete or useless without further testimony.” 11

Some courts have determined that closer scrutiny should be given to changes made for the apparent purpose of defeating summary judgment.12

Requirements of Rule 30(e)

In addition to requiring that changes be made within 30 days of notification of the availability of the transcript, the rule requires the deponent who changes his or her testimony to

8 Id. at *5; Rios v. Bigler, 847 F. Supp. 1538; 1546 (D. Kan. 1994) (errata sheet can be used to correct errors or change an answer when a question is misunderstood but it may not be used to allow a person to alter what has been said under oath); see also S.E.C. v. Parkersberg Wireless, L.L.C., 156 F.R.D. 529, 535 (D.D.C. 1994) (noting that a “blank check” to make substantive changes to deposition testimony has the potential for abuse). 9 Civil Action No. 7:00cv00337 (W.D. Va. Feb. 1, 2002). 10 See Holland, 198 F.R.D. at 653. 11 Allen & Co. v. Occidental Petroleum Corp., 49 F.R.D. 337, 341 (S.D.N.Y. 1970). 12 See Desulma v. The City of New York, 2001 U.S. Dist. LEXIS 9678 at *14-15 (S.D.N.Y. 2001) (even if plaintiff’s changes conformed to the requirements of Rule 30(e), the changes should not provide a basis for avoiding summary judgment); Pepsi-Cola Bottling Co., 2002 U.S. LEXIS 5840 at *10 (observing, in dicta, that the court should apply closer scrutiny where a deponent offers changes to defeat summary judgment).

provide a reason for doing so. Some courts hold that any reason is sufficient.13 Others require an adequate explanation for the change.14

TO CHANGE OR NOT TO CHANGE

If you seek to oppose changes made by your opponent’s witnesses, you may find yourself in an uphill battle, unless you are fortunate enough to be in one of the few jurisdictions that limit the use of Rule 30(e). This can be particularly frustrating in the summary judgment context, where the newly changed testimony creates a material issue of fact that may defeat summary judgment.

If you seek to use Rule 30(e) to change your witness’s testimony, be cognizant of the risks of doing so. First, before you opt to change the transcript, make sure you are in a jurisdiction that will support your liberty with the transcript. Second, since both the original transcript and the corrected one will be available for impeachment, it may not be prudent to make changes if the risk of harming the witness’s credibility outweighs the benefits of the changes made. Third, if the court finds the changes to be sufficiently substantive, it may allow the deposition to be reopened, and at the expense of the party who made the changes. In such a situation, your opponent gets a second bite at the apple on your dime, and you are faced with the possibility that additional harmful testimony (or perhaps more helpful testimony) may be obtained. Finally, you may want to keep the changed testimony in your pocket until trial so that opposing counsel does not have the benefit of time to contemplate a response.

Despite the possible risks, it may be a wise tactical move to make changes to a transcript if those changes can defeat an otherwise viable summary judgment motion filed by your opponent. This may be a particularly useful strategy if the changes you seek to make are supplementation of testimony, rather than an alteration of testimony. In such a case, your witness may avoid impeachment by pointing out that the deposing party failed to ask a question that would have revealed this answer, and the answer is required to clarify the existing testimony.

In summary, making substantive changes to deposition testimony is a litigation tactic that is perhaps not often used but may be powerful. Many courts have interpreted the federal rules broadly to permit substantive changes in testimony other than mere typographical corrections. Consider the risks of changing testimony and the future implications it may have on your case.

13 See Foutz, supra, at 5; Lugtig, 89 F.R.D. at 641; Colin v. Thompson, 16 F.R.D. 194, 195 (W.D. Mo. 1954) (whether the deponent’s “reasons are good or not will not impair his right to make the changes”). 14 See Hlinko v. Virgin Atlantic Airways, No. 96 Civ. 2873, 1997 WL 68563, at *3-4 (S.D.N.Y. 1997) (holding that the changes did not comply with Rule 30(e) because the reason was insufficient, but allowing the deposition to be reopened); Duff v. Lobdell-Emery Mfg. Co., 926 F. Supp. 799, 803-04 (N.D. Ind. 1996) (deposition testimony struck because no explanation provided giving reasons for changes).