Katherine E. Ladow of Lamb McErlane.

Consider this scenario … you just finished a deposition. You're feeling pretty confident after watching your client keep his composure during withering questioning by opposing counsel. The pressure is off. As you sort through your unanswered emails from the day, you even allow yourself to briefly think, "the other side must be reeling. It won't be long now before they are asking for a settlement demand."

Suddenly, your phone rings. It is your client. Puzzled, since he just left your office a half hour ago, you pick up. In a semi-panicked voice, he says, "I messed up. I think I committed perjury. Am I going to get in trouble? Am I going to go to jail? What do I do?" He explains: "When Mr. Brown asked me if I spoke to the quality inspector before accepting the shipment, I told him no. But that wasn't true. The qualify inspector called me before sending the shipment and told me the product did not meet certain quality standards. Can I change my answer? Is it too late? Does this hurt our case?"

The answer is: it depends. While it is fairly well-accepted that a deponent cannot use an errata sheet to totally rewrite his answers or completely modify his testimony, there is a fine line between preserving the material portions of a transcribed document and protecting a deponent's rights to review and revise his deposition testimony. Where that line is drawn is a bit murky. Moore's Federal Practice acknowledges that federal courts, at least, "are divided on the type and extent of changes permitted." Some courts have allowed any and all changes in form and substance even where the changes contradict testimony, on a theory that the federal rules place no limitations on the type of change. However, other courts disagree. As one federal judge (U.S District Judge F.A. Little Jr. of the Western District of Louisiana in Greenway v. International Paper, 144 F.R.D. 322, 325 (W.D. La. 1992)) plainly put it: "a deposition is not a take-home examination."

In Pennsylvania, pursuant to Pa.R.C.P. 4017, a deponent can retain the right to review and modify his deposition testimony after his deposition is taken and, as a result, can make any changes "in form or substance" before signing the record. As with most things, this right can be waived. Thus, in Pennsylvania, if not waived, a deponent can change his answers even if he later contradicts the original answers or testimony as transcribed by the court reporter.

However, changing deposition testimony on an errata sheet is not without consequence. Indeed, a prime example of this occurred in Ball v. Rolling Hill Hospital, 518 A.2d 1238 (Pa. Super. 1986). In that case, the trial court instructed a jury that it could consider the inconsistencies between the witness's deposition testimony and his errata sheet in determining the witness's credibility. While the witness defended his need to make the errata sheet changes by claiming that he misinterpreted the meaning of a certain term during his deposition and, thus, had made a "mistake," the trial court found that his earlier testimony constituted a prior inconsistent statement and was admissible on these grounds. The Superior Court upheld the trial court's decision.

The Federal Rules of Civil Procedure also permit a deponent to make changes in the form or substance of deposition testimony. Rule 30(e) provides: On request by the deponent or a party before the deposition is completed, the deponent must be allowed 30 days after being notified by the officer that the transcript or recording is available in which: to review the transcript or recording; and if there are changes in form or substance, to sign a statement listing the changes and the reasons for making them.

Federal courts are split on the interpretation of "changes in form or substance" as described in F.R.C.P. 30(e). Some federal courts have held that the rule only permits corrections to deposition testimony if an error was made by the court reporter in transcribing the witness' statement. See e.g. Rios v. Welch, 856 F. Supp. 1499, 1502 (D. Kan. 1994) ("It is the court's belief that a plaintiff is not permitted to virtually rewrite portions of a deposition … simply by invoking the benefits of Rule 30(e)."); Barlow v. Esselte Pendaflex, 111 F.R.D. 404, 406 (M.D.N.C. 1986) (The plaintiff's extensive changes to her deposition testimony were at variance with the letter and spirit of Rule 30(e) and the plaintiff's changes are inoperable or a nullity).

However, other federal courts, including district courts in Pennsylvania, have interpreted F.R.C.P. 30(e) more broadly to allow a deponent to make substantive changes in his deposition testimony. See e.g. Elwell v. Conair, 145 F. Supp. 2d 79 (D. Me. 2001) (permitting substantive changes to a deposition transcript and reasoning: "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 jurors should be able to discern the artful nature of the changes."); Consulnet Computing v. Moore, 2008 WL 5146539, *9 (E.D. Pa., Dec. 5, 2008) (deponent may "make changes that contradict the original answers given, even if those changes are not supported by convincing explanations, as long as the deponent complies with the instructions provided within the rule itself for making such changes."); Agrizap v. Woodstream, 232 F.R.D. 491, 493 n. 2 (E.D. Pa. 2006) (noting the majority of federal courts interpret Rule 30(e) to permit deponent to make "any kind of changes."). See also Burch v. Piqua Engineering, 152 F.R.D. 565, 566-67 (S.D. Ohio 1993) (under Rule 30(e), any kind of changed deposition answers are permitted, even where contradictory or unconvincing, as long as procedural requirements set forth in rule are also followed.).

The decision to change deposition testimony requires a deponent to balance the potential harm the original testimony could create with the potential harm created by the fact that the testimony has been changed. Since both the original testimony and the changed testimony may be read to the fact-finder at the time of trial, and because courts often will allow juries to draw inferences as to the credibility of the witness if the changes appear to be improper and purposefully deceiving, the right should be exercised sparingly. Thus, clients need to be advised of the risk associated with this "take-home test" approach—and the fact that a jury hearing these inconsistencies might not take kindly to a deponent's "faulty memory" or "mistake" claim.

Thus, while it is clear that the client in the opening example likely won't go to jail or be convicted of perjury for forgetting certain facts, his counsel should ensure that he has a valid explanation for modifying testimony before allowing him to make significant, substantive changes. Otherwise, he may find himself cringing in the witness box as the two different versions of his story are read back to him by opposing counsel at trial.

Katherine E. LaDow is an associate in the litigation department at Lamb McErlane. She concentrates her practice in the areas of state and federal civil litigation, municipal litigation, government liability and civil rights defense, personal injury, workers compensation and landlord/tenant work. She represents individuals, small and large businesses and municipalities in a wide array of civil, employment and tort-based disputes. Contact her at [email protected] or 610-701-3261.