Can a deponent use a deposition errata sheet to change the substance of his or her testimony after a Tennessee deposition? Or can changes be made only to correct errors by the court reporter?
An errata sheet is a document that a deponent can use to make changes in deposition testimony. Many witnesses agree to waive “reading and signing” their deposition, but the Rule 30.05 of the Tennessee Rules of Civil Procedure permits a witness to make changes to testimony so long as the changes are completed within thirty days of the date was submitted to the witness.
The same rule also provides as follows: “Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them.” The changes are made on what is referred to as an “deposition errata sheet” that is supplied by the court reporter. The deposition errata sheet also can be re-created by the deponent and deponent’s counsel). The witness must sign the deposition errata sheet under oath after any changes are made to the prior testimony.
So, what changes can be made by the witness? Can the witness who testified that the traffic light was “red” when he entered the intersection use a deposition errata sheet to change the answer to “green,” “yellow,” or “I am not sure what the color of the light was?”
The answer comes from the rule itself: the witness may make “[a]ny change in form or substance ….” (Emphasis added.)
Now, some lawyers are going to push back on that answer because the conventional wisdom is that only court reporting errors (or alleged errors) can be addressed. But the language of the rule is much broader than that, and indeed the Court of Appeals as announced that the language of the rule controls.
Opinion of the Tennessee Court of Appeals
In Borngne ex rel. Hyter v. Chattanooga-Hamilton Cty. Hosp. Authority, No. E2020-00158-COA-R3-CV, at *7-12 (Tenn. Ct. App. July 1, 2001) (rev’d on other grounds), plaintiff objected to the trial court allowing a defendant to make 24 changes to her deposition testimony via a deposition errata sheet. The trial court allowed the changes to be made but allowed plaintiff to re-depose the defendant to “‘inquire about the reasons for the changes to the deposition testimony … and the source of the changes, such as whether they came from [the deponent] herself or from her counsel [.]'” Id. at *8.
After reviewing federal court decisions interpreting a similar federal court rule, our appellate court held that (a) the “plain and clear” language of the rule permitted substantive changes (id. at *11); and (b) the safeguards allow by the Trial Court tempered the “legitimate concern” that the testimony was being changed as “a tactical strategy rather than correction of a legitimate error.” Id. at *9.
The safeguards imposed by the trial court was (1) re-opening of the deposition to allow inquiry into the changes; (2) the original answers remained part of the record as admissible proof; and (3) cross-examination at trial of the witness about the changes.
One might ask “what about the cancellation rule?” The Court of Appeals did not address that issue, saying
We emphasize that this case does not present a situation where a party has tried to either obtain or defeat summary judgment by changing his or her testimony, and we need not address that issue at this time. Plaintiff argues in her brief that “had the testimony not been allowed to be changed, partial summary judgment for [her] on the issue of Mercer’s deviation from the standard of care would have been appropriate.” Defendants respond by pointing out that “such a motion was never filed” and that Plaintiff prevailed on Defendants’ motion for summary judgment on behalf of Nurse Mercer.
Id. at *12, fn. 1. Thus, the answer to that question will await another day.
Any experienced trial lawyer knows that making a change to substantive testimony in a deposition will provide fertile ground for cross-examination at trial, and thus a judgment call must be made to live with the “error” or correct it via an errata sheet. The price to be paid for doing so may well be increased if the deposition was videoed and the video does not show the witness to be confused or equivocal at the time the original answer was given or show any aggressive questioning by adverse counsel.
The fact that substantive changes can be made to deposition testimony is another factor to consider in determining whether to video a deposition.