When Giving Depositions, Make Sure You Complete The Errata Sheet In A Timely Manner
As many seasoned HR professionals may know, oftentimes when a deposition is taken of a party or witness in litigation, the lawyer may request that the deponent or witness will "read and sign" the deposition.
Technically, this means that the witness is required to review the deposition transcript and make certain corrections on an "errata" sheet within 30 days from receipt of the transcript. Failure to do so will prevent the witness from later attempting to clarify and/or change his or her deposition testimony.
In a recent case in Maryland's District Court, this issue came to a head when a witness in a Title VII retaliation claim, attempted to modify an answer he had given in a deposition. In particular, during the deposition, the witness was asked whether the alleged sexual misconduct could be deemed harassment as prohibited by the County's sexual harassment policy. The witness responded that "if such conduct occurred, then in all likelihood it would fall under this policy."
Some 60 days later, the witness attempted to modify that deposition testimony by claiming "upon further careful review of the County's sexual harassment policy, I do not think the conduct contributed to me would constitute sexual harassment even if it were true. This is because the elements necessary to establish a sexual harassment claim do not exist."
Because the errata sheet was not submitted in a timely manner, the employee, who was bringing the lawsuit, moved to strike the errata sheet.
In ruling on the motion to strike, the District Court carefully reviewed the requirements concerning the review of deposition transcripts and noted that upon review, changes could be made in form or substance. However, any such changes must be submitted within 30 days from receipt of the transcript. Because that did not occur in this case, the court struck the untimely errata sheet finding that any changes were waived after 30 days.
The court also went on to note the split in authority with regard to the substance of the changes sought to be made in an errata sheet. A majority of courts allow for any timely, substantive change for which a reason is given, including contradictory changes, so long as the deposition is reopened to give the defendants an opportunity for further inquiry into the matter.
However, a growing minority of courts recognize limitations on the scope of permissible changes to deposition testimony and have concluded that a witness may not rewrite his testimony upon review. As one trial court noted, a deposition is not "a take home exam" in which the witness can fix his prior testimony after further review and reflection.
In this case, the District Court found that the witness's attempt to substantively change his prior deposition testimony was untimely and beyond the scope allowed under the rules for clarifications and corrections.
In the event you give a deposition and your lawyer requests that you review the transcript carefully upon receipt, please do just that. If you fail to note appropriate corrections and clarifications upon the errata sheet and submit them to the court reporter within the 30-day time period, those corrections and clarifications may be of little use in the subsequent litigation. (William Harden v. Wicomico County, et al, D.C. Md. Case No. WDQ-09-1123, December 9, 2009.)