Wednesday, December 1, 2021

ARTICLE: A Witness Can Change Their Testimony on an Errata Sheet After a Deposition

 


A Witness Can Change Their Testimony on an Errata Sheet After a Deposition

By Daniel E. Cummins | November 18, 2021
Pennsylvania Law Weekly



Daniel E. Cummins, Clarks Summit firm Cummins Law. Courtesy photo

How many times have you heard an attorney instruct a deponent at a deposition that they have the right to read and sign a deposition transcript and to correct typographical errors but not to change their testimony.

Would you be surprised to learn that this instruction is incorrect and inconsistent with state and Federal Rules of Civil Procedure and law?

The below review of the applicable state and Federal Rules of Civil Procedure confirms that a witness can indeed change the substance of their deposition testimony through the use of a post-deposition errata sheet. However, as the cases show, there may be dangers to doing so in terms of the credibility of that witness.

The State Court Rule

Under Pennsylvania Rule of Civil Procedure 4017(c), which pertains to “Transcript of Testimony. Objections,” it is specifically provided that a transcript of a deposition shall be submitted to the deponent for inspection and signing unless that right is waived.

That same Rule 4017(c) also states that the witness may make “changes in form or substance” to the transcribed testimony within 30 days of the completion of the deposition. When making any such changes the witness is required to also provide or state in the errata sheet the reason for the making of the changes.

Accordingly, while there are no cases annotated under Pa.R.C.P. 4017 on this issue, it appears that the plain wording of this rule allows a deponent to change his answers even if those written changes submitted on an errata sheet after the deposition contradict the original testimony of the witness as transcribed by the court reporter.

Such changes in the substance of the testimony are not without potential consequences. In the case of Ball v. Rolling Hill Hospital, 518 A.2d 1238 (Pa. Super. 1986), a witness had provided deposition testimony and then changed the substance of some of that testimony thereafter by making changes in a post-deposition errata sheet.

The trial court in the Ball case had instructed the jury that they could assess the credibility of the witness, in part, by comparing the inconsistencies between the witness’ transcribed testimony and the changes made to that sworn testimony on the post-deposition errata sheet. The trial court instructed the jury that they could assess whether they should view the witness’ corrections noted on the errata sheet as either an effort to simply correct a mistake in the transcription or, instead, whether the changes represented an effort by the witness to alter the wording to testimony that was more favorable to the witness’s position at trial.

On the appeal in Ball, the Pennsylvania Superior Court affirmed the trial court’s jury instruction as proper under the circumstances presented. The appellate court noted that, while the witness asserted that he had misunderstood the meaning of a certain term during his deposition and had therefore made a mistake in his testimony, the trial court was still correct in instructing the jury that the witness’s deposition testimony could potentially be considered a prior inconsistent statement as compared to the different testimony created by changes noted on the errata sheet by the witness.

The dangers to the credibility of a witness making changes of substance on an errata sheet following the completion of a deposition were also highlighted in the case of Philadelphia Television Network v. Reading Broadcasting, No. 1663, Aug. Term 2001 (C.P. Phila. Co. 2005). In that case involving a contractual dispute between two broadcasting companies decided by a nonjury trial, the presiding judge found that one of the main witnesses in the case “was not a credible witness due to his making material changes on an errata sheet following his deposition,” which changes were noted to apply to central issues presented in the case.

These Pennsylvania state court decisions and the plain wording of Pa.R.C.P. 4017(c) confirm that a deponent can indeed change the substance of their deposition testimony by making written changes in an errata sheet within 30 days of the completion of a deposition.

Federal Court Rule

Deponents are also permitted to change the substance of their deposition testimony after the fact in federal court civil litigation matters as well.

More specifically, Federal Rule of Civil Procedure 30, which applies to “Depositions by Oral Examination,” provides under subsection (e) that a deponent shall have 30 days after a deposition within which 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.” See F.R.C.P. 30(e).

Across the United States, there is a split of authority amongst the various federal courts on the extent to which a deponent may change the substance of their testimony via an errata sheet following a deposition. See, e.g., Agrizap v. Woodstream, 232 F.R.D. 491, 493 n. 1 (E.D. Pa. 2006)(collecting cases that permit and prohibit witnesses from changing material testimony under Rule 30(e)). It appears however, that a majority of the federal courts, including those courts within the U.S. Court of Appeals for the Third Circuit, have addressed F.R.C.P. 30(e) as generally permitting witnesses to amend their deposition testimony within 30 days of a deposition. See Towers v. Heidelberger, No. 3:CV-06-700 (M.D. Pa. 2007) (permitting deponent to alter substance of his testimony); see also 8A Charles Alan Wright, et al., Federal Practice and Procedure, Section 2118 (2d ed. 1994).

Thus, federal courts in the Third Circuit recognize the right of a deponent to change the substance of their testimony via an errata sheet following a deposition. However, the courts of this circuit also note that a party, in response to the threat of a summary judgment motion, “may not generate from whole cloth a genuine issue of material fact (or eliminate the same) simply by re-tailoring sworn deposition testimony to his or her satisfaction.” See EBC v. Clark Building Systems, 618 F.3d 253, 267 (3rd Cir. 2010).

In other words under a flexible approach utilized by federal courts in this circuit, a district court judge may, at the summary judgment stage, “refuse to consider proposed substantive changes that materially contradict prior deposition testimony, if the party proffering the changes fails to provide sufficient justification” for the changes are required by F.R.C.P. 30(e). Conversely, a federal district court judge may, in their discretion, choose to allow for the contradictory changes in the deposition testimony via a subsequent errata sheet if such changes are deemed to be warranted under the circumstances.

Ultimately, while a deponent in federal court may change their testimony through the use of a post-deposition errata sheet pursuant to F.R.C.P. 30(e), the witness will not be permitted to treat an errata sheet as a “take home examination” by which testimony can be “altered for tactical reasons or to reflect what the witnesses wish that they had said.” See Bartos v. Pennsylvania, No. 1:08-CV-0388 (M.D. Pa. 2010).

Yes He/She/They Can

There is no question that a deponent has a right under Pennsylvania state law, and federal law, to change their testimony in a properly executed errata sheet following a deposition.

And so, the next time you hear an attorney magnanimously telling a deponent at a deposition that they can only correct typographical errors to the transcript in an errata sheet and cannot change their testimony, step in and protect the right of that witness by saying, “Yes he/she/they can.”

To the extent that deponent is your client, you may want to caution your client that, if they do choose to change their testimony in any respects, it may open them up to cross-examination or impeachment that could affect their credibility at trial.


Daniel E. Cummins is the managing partner of the Clarks Summit law firm of Cummins Law, a civil litigation practice. He also conducts mediations of civil litigation matters through Cummins Mediation Services. Cummins is also the sole creator and writer of the Tort Talk Blog (www.TortTalk.com), which is designed to provide continuing updates on important cases and trends in Pennsylvania civil litigation law. He can be reached at dancummins@CumminsLaw.net.

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