By Chadd Colin, Esq. and Ron Lefebvre, Esq.

If you’ve ever been involved in a deposition, you know the drill at the end: “Read and sign, or waive signature?”  Every lawyer has heard that a thousand times, and whenever the deponent is your own client, you almost always elect to read and sign.  After all, any uncorrected error in the deposition transcript could theoretically sink your case.

A week or two later, you get the transcript in the mail with the standard cover letter from the court reporter instructing you to review the transcript and to note any changes on the enclosed errata sheet; otherwise, you waive your right to correct the transcript and it is presumed accurate and final in all respects.

If your client crushed the deposition or opposing counsel was spinning in circles, you check the transcript for typos and clerical errors, note any on the errata sheet, and have your client sign.  Easy enough.

But what if your client didn’t do so hot?  What if the hours you spent preparing him fly right out the window under the bright lights of the conference room (or the Zoom screen)?  What if he makes serious mistakes—including misstatements of fact—that need clarification, lest you be stuck with those facts at trial or, worse yet, he perjures himself?  The solution is not so simple.

First, Pa. R.C.P. 4017 does in fact authorize substantive changes to a deponent’s testimony, so long as it is submitted with an explanation for such change:

“Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the person before whom it was taken with a statement of the reasons given by the witness for making the changes.”

That being said, changes in substance are made at the witness’s (and the lawyer’s) own peril.  In Pennsylvania state court, substantive changes can result in the recall of the witness for a new deposition or, perhaps worse, impeachment of the witness at trial. Ball v. Rolling Hill Hosp., 518 A.2d 1238, 1242–43 (Pa. Super. Ct. 1986) (witness impeached at trial based on change to his deposition testimony through errata sheet).

In Cline v. Bohinc, 2009 Pa. Dist. & Cnty. Dec. LEXIS 249, (Westmoreland Cty.), the Court acknowledged that substantive changes are expressly permitted by the rule. But it also made clear that, as a result, a witness may be cross-examined with respect to any changes he made to their deposition testimony, explaining (in an excerpt from the trial transcript): “First you have to call him, ask him what his testimony is, and then if it varies from either the record or the sheet, then you may impeach him on those things.” Imagine setting up your own witness for impeachment even before he testifies at trial!

In the federal courts, excessive changes have resulted in sanctions. Norelus v. Denny’s, Inc., 628 F.3d 1270 (11th Cir. 2010) (upholding sanction for submitting errata sheet with 868 material changes to client’s testimony).  1 LexisNexis Practice Guide: Pennsylvania Civil Discovery § 6.33.

As indicated, Norelus illustrates the perils that can arise from over-correcting a deposition with an errata sheet.  Counsel submitted a “sixty-three page errata sheet containing 868 attempted changes to their client’s deposition testimony, which was their sole source of evidentiary support for their client’s claims.”   While this is obviously an extreme example, getting too carried away on an errata sheet can not only jeopardize the case and the client, but it can also land the lawyer in hot water.

In summary, it is clear that any substantive changes made via errata sheets will be subject to scrutiny and are properly the subject of cross examination.  While substantive changes to deposition testimony may sometimes be necessary, too many such changes could even result in a second deposition at which the errata sheet will be fair game.  1 LexisNexis Practice Guide: Pennsylvania Civil Discovery § 6.33.  That being the case, substantive changes should generally be limited to situations in which such changes are legitimately justified, so that the witness can defend their changes in the context of later cross examination.  Justifiable reasons for substantive changes may include: the witness misheard or misunderstood the question, or subsequently obtained information which would change their answers to certain questions.  Note again that any substantive change should be accompanied by an appropriate explanation of the justification for the same.

While it is clear that lawyers and witnesses are permitted to make substantive changes to deposition transcripts, counsel should carefully consider the consequences of making such changes, and exercise reasonable discretion in doing so.  The errata sheet is not a blank check to re-write a bad deposition, and must be used carefully.

Our Firm has ample experience in preparing witnesses for deposition, defending them at depositions, and guiding them through the errata sheet process specifically and the civil courts generally.  Contact us for more information.