(Rick Kopstein)

Depositions are often a critical discovery tool in civil litigation, as they generally provide a litigant (or a litigant’s counsel) the ability to ask a broad array of questions to a witness in real time and to potentially “lock-in” testimony on a critical issue in a case. Unlike other discovery tools—such as interrogatories—depositions upon oral examination are particularly potent tools in a litigator’s arsenal because they enable a party to gather information from a witness generally without the filter of a witness’ counsel. Indeed, the sworn deposition testimony of a key witness—as confirmed by the transcript of the deposition—can often determine the outcome of the entire case.

What if, however, a witness seeks to make substantive changes to deposition testimony after the deposition has concluded? Unbeknownst to many practitioners, Rule 30(e) of the Federal Rules of Civil Procedure appears, on its face, to permit exactly that.

Specifically, Rule 30(e) provides that a deponent, within 30 days of being notified that a transcript of the deposition is available, can make “changes in form or substance” to the transcript, so long as the deponent signs a statement providing the reasons for making the changes. Read literally, the implication of this rule is potentially devastating to a litigant that believes an adversary has been locked-in by sworn testimony provided during a deposition, when such testimony can simply be altered after the fact. The Third Circuit Court of Appeals has addressed this peculiarity in the Federal Rules of Civil Procedure, explained the different views that other Circuits have regarding Rule 30(e), and has provided guidance (and some degree of reassurance) to practitioners in the Third Circuit that Rule 30(e) has its limitations.

In EBC v. Clark Bldg. Sys., 618 F.3d 253 (3d Cir. 2010), the Third Circuit Court of Appeals was first presented with the issue of whether a party can defeat a summary judgment motion by using a deposition errata sheet to alter the substance of deposition testimony pursuant to Rule 30(e), thereby establishing a genuine issue of material fact. In that case, the District Court for the Western District of Pennsylvania refused to do just that, declining to consider a deposition errata sheet submitted in opposition to a motion for summary judgment that professed to change a witness’ original deposition testimony which “evidenced beyond repudiation that [Plaintiff] did not objectively regard the [the letter in question] to constitute a binding contract.” 618 F.3d at 264.

On appeal, the Third Circuit determined that the district court’s ruling was not an abuse of discretion. In addition to finding that Plaintiff did not properly comply with the procedural requirements of Rule 30(e), the court held that the district court did not run afoul of the substantive component of Rule 30(e) in its ruling. Specifically, the court noted that the federal courts across the country are not uniform as to how they handle substantive changes to deposition transcripts pursuant to Rule 30(e).

As explained by the court, “[s]ome courts have determined that the rule places no limitation on changes. Therefore, according to these courts, substantive changes must be permitted, even if they contradict the original answers or the reasons for making the changes are unpersuasive.” Id. at 267 (citing a string of court decisions, including, for example, Podell v. Citicorp Diners Club, 112 F.3d 98, 103 (2d Cir. 1997); Reilly v. TXU Corp., 230 F.R.D. 486, 489-92 (N.D. Tex. 2005); Foutz v. Town of Vinton, 211 F.R.D. 293, 295 (W.D. Va. 2002); Lugtig v. Thomas, 89 F.R.D. 639, 641 (N.D. Ill. 1981)).

Other courts do not agree with this broad reading of Rule 30(e), and instead “have determined that the rule permits changes of substance only to the extent that the proposed alteration is consistent with the deponent’s testimony.” Id. (citing a string of court decisions, including, for example, Greenway v. International Paper Co., 144 F.R.D. 322, 325 (W.D. La. 1992); Garcia v. Pueblo Country Club, 299 F.3d 1233, 1242 n.5 (10th Cir. 2002); Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383, 389 (7th Cir. 2000); Wyeth v. Lupin Ltd., 252 F.R.D. 295, 297 (D. Md. 2008)).

The Third Circuit held that, in this Circuit, courts should use a “flexible approach,” at least in the context of summary judgment motions. The court explained that “[a]s a general proposition, a party may not generate from whole cloth a genuine issue of material fact (or eliminate the same) simply by re-tailoring sworn deposition testimony to his or her satisfaction.” EBC, 618 F.3d at 267-268. As such, the court held that “when reviewing a motion for summary judgment, a district court does not abuse its discretion under Rule 30(e) when it refuses to consider proposed substantive changes that materially contradict prior deposition testimony, if the party proffering the changes fails to provide sufficient justification.” EBC, 618 F.3d at 268. Nevertheless, the court declined to set forth a bright-line rule, cautioning that “we emphasize that courts may, in their discretion, choose to allow contradictory changes (and implement … remedial measures … ) as the circumstances may warrant,” and providing that “nothing in the foregoing requires courts to strike contradictory errata if sufficiently persuasive reasons are given, if the proposed amendments truly reflect the deponent’s original testimony, or if other circumstances satisfy the court that amendment should be permitted.” Id. at 268, 270.

Since the EBC v. Clark Bldg. Sys. decision, courts in the Third Circuit have applied the guidance of the EBC court. For example, in Sivolella v. AXA Equitable Life Ins. Co., 2015 U.S. Dist. LEXIS 94344 (D.N.J. 2015), the District Court of New Jersey refused to bar an expert witness from materially changing her deposition testimony (by adding a “not” to one of her statements) where the court found, in part, that the change “render[ed] her testimony consistent with her related testimony.” Sivolella, 2015 U.S. Dist. LEXIS at *7; see also, USAA Cas. Ins. Co. v. Metro. Edison Co., 2014 U.S. Dist. LEXIS 96522 (M.D. Pa. Jul. 16, 2014).

In contrast, in In re Diet Drugs Prods. Liab. Litig., 2012 U.S. Dist. LEXIS 50056 (E.D. Pa. April 10, 2012), the Eastern District of Pennsylvania refused to permit a deponent to use an errata sheet to change her testimony regarding the specifics of a past conversation to “I do not recall.” 2012 U.S. Dist. LEXIS at *10. Relying on EBC, the court emphasized that “[a] party is not permitted to manufacture an issue of fact by re-tailoring sworn deposition testimony through substantive changes on an errata sheet.” Id., see also, Pope v. Bayer MaterialScience, 2016 U.S. Dist. LEXIS 155200, note 31 (W.D. Pa. Nov. 9, 2016).

The takeaway for practitioners in the Third Circuit is clear—although Rule 30(e) provides deponents a potential avenue for changing the substance of deposition testimony, courts are unlikely to permit such changes as simply a litigation tactic and without a reasonable basis for the change. That said, because the Third Circuit Court of Appeals has not set forth a bright-line rule that substantive changes to deposition testimony that conflict the original testimony are not per seprohibited, litigants in this Circuit should be sure to be able to provide reasons why any proposed changes to critical deposition testimony are improper based on the circumstances of a given case.•

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