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Birmingham Bar Association Bulletin

Errata Sheets affi rmed a lower court’s narrow interpretation of Fed. R. Civ. P. 30(e). In Reynolds v. Int'l Bus. Machines Corp., the district court held that changes should be disregarded where the transcript did not refl ect any “obvious confusion” to the deposition question. In Norelus v. Denny’s, Inc., the court assessed sanctions for submitting a “novellalength errata sheet making a slew of material changes to deposition testimony.” Th e Court criticized the improperly submitted contradictory errata sheet as a “waste of time and money” that “unquestionably prolonged and multiplied proceedings.” In McCarver v. PPG Industries, Inc., the district court adopted the interpretation of the scope of Rule 30(e) from the Seventh Circuit, stating that “a change of substance which actually contradicts the transcript is impermissible unless it can plausibly be represented as the correction of an error in transcription . . . .” Th e Court further held that “Rule 30(e) ‘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 then return Federal Rule of Civil Procedure Rule 30(e) provides in pertinent part: If requested by the deponent or a party before completion of the deposition, the deponent shall have 30 days after being notifi ed by the offi cer that the transcript or recording is available 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. Likewise, Alabama Rule of Civil Procedure 30(e) also addresses that substantive changes may be allowed, “any changes in form or substance which the witness desires to make shall be entered upon the deposition by the offi cer with a statement of the reasons given by the witness for making them.” While the plain language of both rules appears straightforward, there is currently a split on the scope of permissible changes to a deposition transcript in federal courts. A majority of federal courts construe Rule 30(e) to allow a deponent to make any change to a deposition transcript and consider it beyond the “purview of the courts to second-guess the suffi ciency, reasonableness, or legitimacy of the reasons provided for the changes.” Courts have noted that the broad interpretation “furthers the purpose of the discovery process to allow the parties to elicit the true facts of a case before trial.” A minority of federal courts have taken the opposite approach, holding that changing the substance of the testimony on an errata sheet which actually contradicts the transcript is impermissible. Th e Eleventh Circuit has yet to affi rmatively address the scope of substantive changes on errata sheets, but it has “a change of substance which actually contradicts the transcript is impermissible unless it can plausibly be represented as the correction of an error in transcription . . . .” 18 Birmingham Bar Association


Birmingham Bar Association Bulletin
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