During depositions there are many things that can go awry in the process, the most significant of which can be your client making a mistake or providing inaccurate testimony.
What can you do? What remedies should you pursue, if any?
You can cross examine your witness during the oral deposition to clear up any confusion or correct their misstatements. However, if the witness is not properly prepared to give oral testimony on the topics to be discussed, you have another solution.
Under Federal Rule of Civil Procedure 30(e) and Texas Rule of Civil Procedure 203.1, a witness may submit a document commonly referred to as the “errata sheet”. An errata sheet contains corrections to a deponent’s testimony and must state the reasons for those corrections. In Texas, unless otherwise agreed by the parties, this sheet must be submitted to the deposition officer within 20 days after receiving the written transcript of the witness’s oral deposition.
Whether you are submitting the errata sheet or having one served on you by opposing counsel, there are several points to remember about this discovery tool.
First, an attorney may not respond on behalf of their client. Any witness testimony submitted to the court on an errata sheet must be just that – the witness’s testimony. Improper, attorney driven, deposition testimony changes can result in sanctions by the Court. The Court may not only exclude errata sheet changes made by or at the instruction of an attorney, but it may also allow discovery concerning evidence of attorney involvement in the deposition testimony changes to ascertain the witnesses’ credibility. Further, the court may also issue sanctions against both the attorney and law firm presenting the witness as part of its judicial discretion or at the timely request of opposing counsel. Cherry Petersen Landry Albert LLP v. Cruz, 443 S.W.3d 441, 443 (Tex. App.—Dallas 2014, pet. denied).
Second, if the party submitting the changes does not list their reason for each individual change, the court may deny the changes or the strike the errata sheet. Neither the Federal Rules nor Texas Rules of Civil Procedure identify the categories of reasons that justify changes on an errata sheet. Common reasons for testimony changes are typographical, transcriptional, or to provide clarification. If the testimony change is more substantive, such as changing an answer from “yes” to “no”, a more thorough explanation should be provided.
Third, if the changes on the errata sheet make the original deposition testimony “incomplete or useless”, the party who conducted the deposition may be authorized by the Court to re-open the examination of the witness. In addition, the party who made these types of changes may be obligated to pay the costs and attorney’s fees of opposing counsel.
The ability to redline and re-write unfavorable testimony is not the purpose of an errata sheet. Regardless of the changes on the errata sheet, the witness’s original deposition testimony will still be admissible for use during cross-examination at trial. In addition, neither the witness nor their counsel may re-write their answers as if the oral deposition were “a take home examination”. Greenway v. Int’l Paper Co., 144 F.R.D. 322, 325 (W.D. La. 1992).
