Federal Rule 30(e) Governs Deposition Correction Procedures

Summary

• Changing testimony is subject to procedural requirements and substantive limits.
• The Federal Rule of Civil Procedure 30(e) imposes procedural particulars about how deposition corrections must be done.

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Most litigators are vaguely aware that a deponent has the right to correct errors in their deposition transcript. Indeed, some lawyers make it common practice to “improve” a deponent’s testimony by means of creative post-deposition editing. But Federal Rule of Civil Procedure 30(e) imposes procedural particulars about how deposition corrections must be done. And courts routinely put limits and conditions on their scope.

Get Started Before You Finish

The process for correcting a deposition transcript starts even before the deposition is completed. Rule 30(e) provides that a party must request the right to review and change its deposition transcript “before the deposition is completed.” Moreover, it requires that the officer taking the deposition (i.e., the court reporter) must “note in the certificate prescribed by Rule 30(f)(1) whether a review was requested[.]”

Courts are serious about these procedural requirements. For example, in EBC, Inc. v. Clark Building Systems, the U.S. Court of Appeals for the Third Circuit held that “Rule 30(e)(1) requires the party or deponent to request review of the deposition before the deposition itself is completed” and “[w]ithout such certification, a court cannot determine whether the threshold requirement has been satisfied.” Best practice is to request the right to review on the deposition record and specifically ask the court reporter to include that request in their certification. Consider doing so at the beginning of the deposition so it doesn’t get missed in the hustle to wrap up for the day.

The deadline to return any corrections is also a hard one. The deponent has 30 days from the date on which the transcript becomes available to the witness or their counsel—not from when it is actually provided to or received by the witness. This deadline should be calendared from the court reporter’s first notice that the transcript is ready and available. If a court is otherwise inclined to reject corrections to a deposition transcript (read on), missing this deadline provides a gold-plated opportunity for it to do so.

Substance Can Be Sticky

Rule 30(e) expressly allows changes to the “substance” of a deponent’s answers, but some courts are reluctant to fully embrace that authority. In Sinclair Wyoming Refinery Co. v. A&B Builders, Ltd., for example, the U.S. Court of Appeals for the Tenth Circuit stated, “We do not condone counsel’s allowing for material changes to deposition testimony and certainly do not approve of the use of such altered testimony that is controverted by the original testimony.” Numerous federal courts have held that substantive changes to deposition testimony are not permitted when used solely to create a fact dispute in an attempt to avoid summary judgment.

Other courts observe that substantive changes to a transcript undermine the essence of depositions as a discovery tool. From the EBC court: “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 then return home and plan artful responses. Depositions differ from interrogatories in that regard. A deposition is not a take home examination.” Different federal circuits exhibit varied levels of hostility to deposition corrections, so jurisdiction-specific research is advisable.

A changed deposition answer must also include the reason for that change. Courts routinely require that the deponent provide a reason for each change made and that the reason be “specifically stated.” There is less clarity, however, about how much specificity is required. For clerical or stenographic errors, reasons like “transcription error,” “phonetic mistake,” or “spelling correction” probably work. But if a deponent intends to substantively change an answer, they should be prepared to offer a thoughtful and credible reason for doing so.

Neither Gone Nor Forgotten

If a high school geometry teacher were correcting an exam, the end result would be a test showing both the wrong and right answer. And so it is with deposition transcripts. A corrected answer supplements—but does not eliminate—the original. Indeed, this is why corrections are appended to the back of the transcript rather than inserted into the transcript itself. And courts routinely hold that both the original and the corrected transcript will be available to the opposing party so they can ask the witness about the basis for any corrections. Without question, a witness changing sworn testimony from something bad to something good, without a credible reason for doing so, is a bad look in front of a judge or jury.

Another risk in unfettered, substantive deposition corrections is that courts can permit the reopening of that deposition to allow questioning about the matters on which testimony was changed and the basis and reasons for those changes. This occurs most frequently when the changes go to potentially case-dispositive issues or when they do not include any credible reasons for the changes. Again, a witness testifying that they changed material deposition testimony because the lawyer told them to, or because the lawyer drafted an errata page and told them to sign it, can create problems that dwarf whatever trouble the original deposition answer may have caused.

Resources

Brian A. Zemil, “ All Things Errata,” Litigation News (Apr. 19, 2022).

Hambleton Bros. Lumber Co. v. Balkin Enters., 397 F.3d 1217 (9th Cir. 2005).

Endnotes

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Greenberg Traurig LLP

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