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When is it wrong to exercise a right? You know, of course, that deposition witnesses have a right to read and sign their transcripts. But that “right,” conferred by Federal Rule of Civil Procedure 30(e), may offer scant benefit, while posing an enormous potential menace. This right is wrong. There has always been some confusion over ownership of this so-called right. Originally, the right was conferred automatically; the rule provided that the transcript had to — had to– be submitted for review to the deponent unless “waived by the witness and by the parties.” In 1993, the rule was amended to require that the right be specifically invoked, by the “deponent or a party.” Some lawyers of our acquaintance have taken the position that these references to parties mean that they can coerce an otherwise reluctant deponent to go to the trouble of reading and signing her deposition. And because the case law was dotted with occasional opinions in which the court actually ordered a reluctant witness to sign a deposition, that argument was not totally without support. See, e.g., Pfau v. Coopers & Lybrand, 1992 Dist. Lexis 3751 (S.D.N.Y. 1992). But come on. The point was not to get a signed transcript but, rather, to get a final, conclusive transcript. The “right” to sign was frustrating that end game because many deponents refused or failed to sign. So the 1970 amendments to the rule specifically added a 30-day time limit. The amendment set a date after which the right was deemed waived and the transcript was deemed correct without signature, so “it is doubtful that Rule 30(e) was intended to allow an opposing party the ‘right’ to require a deponent to read, review and sign a transcript of the deposition.” Soto v. McLean, 40 Fed. R. Serv. 3d (E.D.N.C. 1998). Rule 30(e) allows a witness to alter deposition testimony “by reciting such changes.” The deponent can’t change the actual transcript; she can merely add errata sheets. But “errata” are not limited to errors of transcription. Any change, whether in form or in substance, can be made, so long as it is timely and so long as it is accompanied by “adequate” reasons. So a witness is allowed to make changes — “even those having the effect of contradicting the original answers, regardless of how unconvincing the deponent’s explanation for making the changes might be.” Hlinko v. Virgin Atlantic Airways, 1997 U.S. Dist. Lexis 1627 (S.D.N.Y 1997). If the changes in substance make the original deposition suspect or meaningless, the court can order that the deposition be reopened, but the general rule is that a witness is free to contradict as much as he or she pleases, so long as reasons are given. Id. OFFER A REASON, EVEN IF IT’S NOT CONVINCING The key is that a reason has to be offered — not that has to be convincing. Suppose the transcript reads “the light was groaning.” The witness puts an entry on the errata sheet: ” ‘groaning’ should be ‘green.’” Nothing more. Well, it is obvious that “ groaning” was probably a typographical error. But if the deponent does not articulate a reason, no matter how obvious, the change does not comport with Rule 30(e) and is subject to being stricken. Holland v. Cedar Creek Mining Inc., 198 F.R.D. 651 (S.D. W.Va. 2001). Conversely, suppose the transcript reads “the light was green.” The deponent puts on the errata sheet: ” ‘green’ should be ‘red.’ Reason: I was confused by the question.” The reason given is not terribly satisfying, but it satisfies Rule 30(e). Well, maybe. The deponent can probably get away with making some number of shaky substantive changes, but courts, like harried parents, have limits. In Greenway v. International Paper Co., 144 F.R.D. 322 (W.D. La. 1992), the plaintiff proposed 64 corrections to a 200-page deposition. For example, when asked at her deposition if she could recall any instance of retaliation, the plaintiff answered, “No, sir.” But on reflection, the plaintiff proposed correcting that answer to “Yes, sir. For example, after I filed the quick-hour grievance in June of 1990, Jimmy retaliated against me by forbidding me from using the telephone while at work, taking any jobs without his permission and talking to any management personnel without first talking to him. Additionally �.” And so on for another 12 lines. The plaintiff offered reasons for her changes: the corrections were more accurate and complete; she had subsequent and more accurate recall; she wished to clarify her answers. No good; the court struck the corrected answers: “A deposition is not a take-home examination,” the court chastised. IT’S MY RIGHT, AND I CAN TRY IT IF I WANT TO Look, you have a God-given right, if you want to exercise it, to stand out in the rain. But it is not necessary to exercise a right simply because you have it. So a witness has the Congress-given right to read and sign the deposition. But why should she? Let’s get one thing straight: What have you done when you add a substantive errata sheet? You have, in one nice package, given your opponent impeaching material. Let’s see how it might all play out at trial. At the deposition, the witness is asked, “What color was the light?” She answers, “I don’t really remember.” After reviewing the transcript, she tells you, “Gosh, now that I think about it, I have a vague recollection that the light was starting to turn green.” It will look better if you make the change — and accept the impeaching value of the two different recollections — immediately, rather than at trial. Or will it? Think about it. Your witness has already a shift in recollection over the course of the 30 days between deposition and transcription. Whether you back off the original testimony now or later, you will have to deal with the impeaching effect of the difference. But what if, by time of trial, the witness honestly comes back to “I don’t remember”? You’ve created impeachment for nothing. Or what if there is an even further evolution of memory? What if, by the time of trial, the witness says “You know, now that I have had a lot of time to think about it, I remember clearly now, the light was green.” You’ve got three versions to deal with. Now what? Now you have three different versions to deal with. Any change the witness makes now in connection with reviewing and signing the deposition will lock in some amount of impeachment. You are stuck with the transcript whether you correct it or not. You are stuck with trial testimony. Why stick yourself with errata that might tell yet a third story, heightening the impeachment? If you decide to make the corrections immediately, of course, the witness has to sign the corrected transcript. But we know lawyers who have their deponents sign transcripts even when there are zero changes or when the only corrections are obvious typos. We know these lawyers, but we do not understand why they do this. Why would you have a witness sign a deposition as a gratuitous act and add to the possible impeaching value of the transcript? You know how it goes when the deposition testimony was “the light was red” and the trial testimony is “the light was green”: Q: Ms. Smith, you just said that the light was green? A: Right. Q: You recall giving a deposition a year ago? A: Yes. Q: You took the same oath to tell the truth in that deposition as you did today? A: Of course. Q: And a year ago, your testimony under oath was that the light was red? A: Yeah, but…. Now suppose you had exercised the deponent’s right to read and sign the deposition. Add this to your witness’ squirm: Q: And you didn’t just testify a year ago that the light was red. You carefully read the transcript of that deposition, without any pressure, and on full reflection you were satisfied — and you confirmed — that the light was red? A: Well, I thought so at the time…. Q: So in addition to testifying under oath the light was red, you read that testimony and certified under oath that what you had said was right? A: Yeah, but, but, but…. A DEPOSITION IS NOT AN ETCH-A-SKETCH If you waive the right to sign, you’re stuck with the transcript, errors and all. If you read and correct and sign the deposition, you’re still stuck — really stuck — both with what is in the transcript, plus with the corrections. So when you get to trial, it probably does not matter all that much which version you’re stuck with, but it’s slightly better to be stuck with a transcript you didn’t review and expressly ratify. But what if you never get to trial because of that erroneous transcript? In Rios v. Bigler, 67 F.3d 1543 (10th Cir. 1995), the plaintiff brought a malpractice action, claiming that there had been a negligent failure to diagnose a condition. When the plaintiff’s expert was deposed, however, he was not critical of the defendant doctor for failing to make the diagnosis. The defendant sought summary judgment on that testimony. The plaintiff countered with an affidavit from the expert stating that he was in fact critical of the failure to diagnose; at the same time, the expert sought leave to amend his deposition answers to clarify and expand on them. The court found that the attempt to clarify a deposition testimony was not timely under Rule 30(e) and that the deposition transcript, therefore, stood. The court further found that any affidavit at odds with the deposition was an impermissible attempt to create to sham fact issue. Summary judgment was affirmed. You can’t simply pick up the waxed paper and erase what you wish you had not drawn. You can correct it, if you follow the rules and timetables for correcting it, but in doing so, you will simply codify the fact that the witness has said two different things on two different occasions. So you may not want to do that — except when what the witness said, unless refuted, will result in summary judgment. But you only have 30 days to do that. The court can forgive or extend the 30-day deadline, of course, but the Rioscourt did not, and you cannot assume your court will be any more sympathetic. So here’s what we d To keep our options open, we always invoke, before the conclusion of the deposition, the right to review and sign the deposition. Then we think very carefully about whether our witness has said anything during the deposition that absolutely requires correction. And unless he has stepped in something awful, we waive signature and let the transcript stand. Of course, we reserve the right to review this article during the next 30 days and make appropriate changes. Gerald Solovy and Robert Byman are fellows of the American College of Trial Lawyers and partners at Chicago’s Jenner & Block.

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