Defense Against Discovery Abuse: Changes to Depositions Under Fed. R. Civ. Pro. 30(e)

Fed. R. Civ. Pro. 30(e) allows a witness to make changes to "form and substance" if the changes are made within 30 days of submission to the witness.

There is some dispute as to whether a witness can make wholesale changes to the deposition transcript . One view is that the Rule allows changes to "form or substance" so a witness can make wholesale changes

Another view is that a deposition is not a "take home exam" that can be revised by the lawyers after the witness has testified.

Her, both views are discussed and the District of Maryland expresses a preference for the "no take home exam" perspective:

"Some courts hold that if the procedural requirements of Rule 30(e) are met, a deponent may, by the literal language of the rule, change any and all of the "substance" of the deposition testimony. See, e.g., Foutz v. Town of Vinton, Virginia, 211 F.R.D. 293, 295 (W.D. Va. 2002). Other courts interpret the rule as foreclosing changes that materially alter the testimony or contradict the testimony. See, e.g., Rios v. Bigler, 847 F. Supp. 1538, 1546-47 (D. Kan. 1994). The Court agrees with the latter line of cases. Quoting the opt-cited decision Greenway v. International Paper Co., 144 F.R.D. 322, 325 (W.D. La. 1992) the district court in Kansas described the types of corrections that are intended to be remedied by Rule 30(e).The court recognizes that Fed. R. Civ. P. 30(e) allows a deponent to make changes to deposition testimony in form or substance. Nevertheless, the court finds that [the deponent's] errata sheets exceed the scope of the type of revisions contemplated by the Rule and serve only to improperly alter [*297] what was [**7] testified under oath. As has been aptly acknowledged by the Tenth Circuit, a deposition is not a take home exam. See Garcia v. Pueblo Country Club, 299 F.3d 1233, 1242 (10th Cir. 2002) (quoting Greenway v. Int'l Paper Co., 144 F.R.D. 322, 325 (W.D. La. 1992)). The errata sheet "clarifications" in this case are akin to a student who takes her in-class examination home, but submits new answers only after realizing a month later that the import of her original answers could possibly result in a failing grade.
Id.; see also Paul Harris Stores, Inc. v. PricewaterhouseCoopers, LLP, 2006 U.S. Dist. LEXIS 65840, 2006 WL 2644935, at *3 (S.D. Ind. Sept. 14, 2006) (stating that HN2 where it is "apparent to the Court that [a party] seeks to 'undo' the testimony of its 30(b)(6)witnesses by adding errata," the errata should be stricken as "really no more than 'lawyers' statements,' attempting to deflect potentially detrimental testimony"); Eckert v. Kemper Fin. Servs., Inc., 1998 U.S. Dist. LEXIS 15788, 1998 WL 699656 at *5 (N.D. Ill. Sept. 30, 1998) (precluding "wholesale changes to previous sworn testimony" that was, in fact, a "damaging [party] admission").
Wyeth v. Lupin LTD, 252 F.R.D. 295, 296-97 (D. Md. 2008)

However, even if a Court allows wholesale changes to a deposition, the original, unedited, transcript is still admissible:

The Court in Blackthorne v. Posner, 883 F. Supp. 1443, 1454 (D. Ore. 1995) ruled that plaintiff made handwritten corrections to his deposition transcript after the 30 day limitation and, therefore, found plaintiff to have waived his privilege to read, review and amend. See Barlow v. Esselte Pendaflex Corp., 111 F.R.D. 404, 406 (M.D. N.C. 1986) (holding that where plaintiff made so many changes to his deposition testimony that it became impossible for the reporter to enter the alterations and deeming "plaintiff to have refused to have signed, or to have waived signing of . . . the transcript as set out in Rule 30(e)"). The Blackthorne court subsequently allowed plaintiff to admit his deposition testimony into evidence without the untimely corrections. The court held: "[plaintiff's] opportunity to amend changes to the deposition had lapsed, and plaintiff's errata [**23] sheet will not be received as part of the deposition testimony." Blackthorne, 883 F. Supp. at 1454 n.16.
The Second Circuit ruled similarly in Podell v. Citicorp Diners Club, 112 F.3d 98 (2nd Cir. 1997). The Podell court held that notwithstanding any errata modifications, Rule 30(e) allows the original deposition to be admitted at trial. Id. at 103. The court in Lugtig v. Thomas, 89 F.R.D. 639, 641 (N.D. Ill. 1981) reached an analogous result, holding that where a deponent amends his deposition, his original deposition testimony shall remain admissible at trial. The Lugtig court stated that "nothing in the language of Rule 30(e) requires or implies that the original answers are to be stricken when changes are made . . . ," implying that the original deposition is admissible [**24] at trial, regardless of deponent's decision to amend his deposition or waive that privilege. Id. at 641-42.