Discovery: Sworn Mulligans

Ah, wouldn’t life be grand if we had a redo button. But, except for golf, where we duffers have institutionalized the mulligan in total abrogation of the actual rules of the game, there is no area of life in which we are allowed to change our mistakes without consequence. Uh, well, except of course when we give testimony under oath; then we can make all the changes we want. Fed. R. Civ. P. 30(e) gives witnesses 30 days to make changes in form or substance to their deposition testimony. ‘SUBSTANCE’ IS KEY -� THE QUESTION DOESN’T MATTER That’s right, substance. It doesn’t matter what the question was. At the deposition the witness answered “that’s correct.” Within the 30-day period provided in Rule 30(e), the witness changes the answer to “that is not correct.” Now, Rule 30(e) does require that reasons be given for such changes, and the deponent complies. The change makes the answer “accurate and complete” because “she subsequently recalled more accurate information” and “she wishes to clarify her answer.” Greenway v. International Paper Co., 144 F.R.D. 322 (W. D. La 1992). What? She said “YES” at the deposition but wants to say “NO” now because “NO” is a clarification and more accurate? Wow! Can she do that? We will give you a direct answer to that fair question — the same answer the deponent gave — “yes and no.” It depends on the court — and the stage of the preceding. In Podell v. Citicorp Diners Club Inc., 111 F.3d 98, 103 (2d Cir. 1997), the court found that Rule 30(e) allows changes in substance. Deponents must give reasons, “but the language of the Rule places no limitations on the type of changes that may be made nor does the Rule require a judge to examine the sufficiency, reasonableness, or legitimacy of the reasons for the changes — even if those reasons are unconvincing.” Now, it is important to note that the errata sheets are appended to the depositions; they do not, could not, erase the original answers. So the trier of fact would have both answers and the inevitable credibility questions that arise from such contradictions. In Ewell v. Conair Inc., 145 F. Supp. 2d 79, 87 (D. Me 2001), a motion to suppress contradictory errata sheets was denied; the remedy is not to strike the later suspect answer but rather to let the jury see it for the shiftiness it is: “If the original answers as well as the changes are made available to the jury when and if the deposition testimony is used at trial, the jury should be able to discern the artful nature of the changes.” See also, Daroczi v. Vermont Center For the Deaf, 2004 U.S. Dist. Lexis 1029 (D. N.H. 2004). And isn’t that the usual course of things — no matter what a witness may say at a deposition, she may say something different at trial. Toland v. Forest Laboratories Inc. 2001 U.S. Dist. Lexis 223 (S.D.N.Y. 2001) (“plaintiff could not reasonably suggest that a witness would be precluded by his or her deposition testimony from giving different testimony at trial.”) So Rule 30(e) is really just about timing, isn’t it? The witness could wait until trial to change yes to no, but under Rule 30(e), she gets to do it in a more official, more contemporaneous way. She will be able to tell the trier of fact that she caught her mistake early rather than at trial; her opponent will not be sandbagged with the change at trial. So why should errata sheets — even with radical changes of substance — be suppressed? Well, because some courts do not condone mulligans. The Greenway court did not take kindly to the attempt to change yes to no. “A deposition is not a take home examination.” Errata stricken. 144 F.R.D. at 325. See also, Rios v. Bigler, 847 F. Supp. 1538 (D. Kan. 1994) (court will consider only those changes which clarify, not those that materially alter). “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, such as dropping a ‘not’.” Thorn v. Sundstrand Aerospace Corp. 207 F.3d 383 (7th Cir. 2000). The issue often arises in the context of summary judgment. Armed with the answer “yes” to a case-dispositive question, the defendant moves. The respondent reads the deposition, notices the oops, woodsheds the witness (of course you would never do it, neither would we, but you know lawyers for whom the woodshed is part of the sausage-making process), and looks for a way to turn yes to no, defeat to victory. If it is within the 30-day period under Rule 30(e), the change can be made by way of errata sheet; if not, the witness can still file an affidavit to “clarify” that “when I said yes, the more accurate and complete answer was no.” Issue of fact created; credibility issue created; summary judgment defeated. Not so fast. Courts like dispositive motions, so much so that they have developed the “sham affidavit” doctrine to deny attempts to change the substance of sworn testimony to defeat those motions. “When an interested witness has given clear answers to unambiguous questions, he cannot create a conflict and resist summary judgment with an affidavit that is clearly contradictory, but does not give a satisfactory explanation of why the testimony is changed.” Colantuoni v. Alfred Calcagni & Sons, 44 F.3d 1, 4-5 (1st Cir. 1994). What constitutes a satisfactory explanation? It is not enough to say “I’ve thought about it, and my first answer was wrong.” The explanation has to be actually satisfactory. In Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986) the court articulated factors under which to measure satisfaction: “whether the affiant was cross-examined during his earlier testimony, whether the affiant had access to the pertinent evidence at the time of his earlier testimony or whether the affidavit was based on newly discovered evidence, and whether the earlier testimony reflects confusion which the affidavit attempts to explain.” So we do not allow affidavits that contradict unambiguous testimony; such affidavits are simply disregarded. Vonckx v. Allstate Insurance Company, 2004 U.S. Dist. Lexis 11491 (N.D. Ill. 2004) (“Plaintiff cannot explain away his divergent deposition and affidavit testimony by arguing that the statements are merely clarifications … ; the Court disregards Plaintiff’s contradictory … affidavit testimony to the extent it contradicts unambiguous prior sworn testimony”). And the same reasoning applies to deposition errata. “We see no reason to treat Rule 30(e) corrections differently than affidavits.” Burns v. Board of County Commissioners, 330 F.3d 1275 (10th Cir. 2003). In Pepsi-Cola Bottling Co. v. PepsiCo. Inc., 2002 U.S. Dist. Lexis 5840, 10 (D. Kan. 2002), the court found that if no dispositive motions are pending, a witness is permitted any change in form or substance, even if the reasons given for the changes are unconvincing. But if a dispositive motion is pending, the changes are not permitted without satisfactory explanations. Another judge in the same district came to the same destination on a different path. In Summerhouse v. HCA Health Services of Kansas, 216 F.R.D. 502, 507 (D. Kan 2003), the court found that “whatever changes Rule 30(e) permits, they are permitted without regard to the pendency of a summary judgment motion.” But the court went on to find that “Rule 30(e) permits any changes to deposition testimony, except those material changes that fail the Burns test [of providing a satisfactory reason for the change].” Id. at 508. In both cases, same result — if a change in sworn testimony would defeat a summary judgment motion it was not allowed; if the change was not in the context of summary judgment it was allowed. PLAYING YOUR BALL WHERE IT LIES ON SUMMARY JUDGMENT A well-prepared, well-represented witness is asked, “When you entered the intersection, the light was red, correct?” Under oath, the witness testifies, “Yes, that is correct.” Twenty-nine days later, the witness files an errata sheet saying that the answer should be changed to “No, that is not correct” because, the witness explains, the different answer is a clarification and is more accurate. If a summary judgment motion is filed, the witness is going to be stuck with “Yes” and will not be allowed to create an issue of fact, by affidavit or errata sheet, to say “No.” But if for some reason a summary judgment motion is not filed and the case goes to trial, the witness is unstuck. Some jurisdictions will allow the errata sheets, some will not, but all jurisdictions, apparently, will permit the witness to give different testimony in front of the jury. Someone will have to sort out the credibility of a witness who says different things on different occasions, but we leave that to the jury. Huh? We can’t reconcile this screaming inconsistency. If witnesses are not allowed to contradict their sworn testimony at the summary judgment stage — when the nonmoving party is entitled to the benefit of the doubt — and if the court can determine as a matter of law that the explanation for the contradiction is not satisfactory and therefore should be disregarded — then how does that same new testimony become admissible at trial? If it can be found as a matter of law to be a sham, isn’t it error to let the jury hear it? On the other hand, if testimony that contradicts prior sworn testimony is permissible and admissible at trial, how can the court refuse to hear it in the course of granting summary judgment? So we give witnesses mulligans at trial, but they have to play their ball where it lies on summary judgment. Some court may someday make sense of this contradiction, but until then we’ll stick to golf, whose rules we understand. Jerold S. Solovy and Robert L. Byman are Fellows of the American College of Trial Lawyers and partners at Chicago’s Jenner & Block. Solovy, the firm’s chairman and a past chair of the ABA Discovery and Trial Practices Committee, can be reached at [email protected]. Byman can be reached at [email protected].