11 October 2013
Yes, you can make changes to correct typographical and transcription
errors, and in Massachusetts, you can make substantive changes as well, even if
the changes are clarifying or contradictory.
Smaland Beach Assoc., Inc. c. Genova, 461 Mass. 214, 228 (2012). The changes are to be made in the form of an “errata
sheet” that typically appears at the end of the transcript, although you may
use your own form. The right to make
changes is not absolute and can be waived prior to the deposition. Typically the parties establish a deadline for
the submission of an errata sheet, which is usually 30 days. However, there are a number of considerations
one should undertake before making any changes through an errata sheet.
Making changes to deposition testimony through the use of an
errata sheet is tricky business. In the Smaland Beach case, the Massachusetts
Supreme Judicial court established rules for the use of errata sheets provided
for by Mass. R. Civ. P. 30(e).
Understand, that to say it straight, the use of an errata sheet can
create suspicion and has the potential for abuse. This is why the author believes the SJC took
the opportunity in 2012 to enunciated some rules.
Initially, any changes “must represent [the deponent’s] own
good faith belief, and may not to be undertaken to simply to bolster the merits
of a case.” Smaland Beach Assoc.,
Inc. v. Genova, 461 Mass. 214, 229-30 (2012). Procedural requirements must be followed,
which include also providing reasons for the changes that “provide an adequate
basis from which to assess their legitimacy.”
Id. at 230.
There are also a few “remedial measures” the SJC
adopted. Id. If changes are substantive and they likely would
have triggered further inquiry, the other party can reopen the deposition to inquire
about the changes. Id. Judges can also put the costs of reopening
the deposition on the deponent as well, “where fairness requires.” Id. at 230 fn. 25. Also, the original answers remain part of the
record. Id. at 230. This means the deponent can be asked about
those changes at a later date. In
addition, if the rule allowing errata sheets has been exploited, such as for
strategic gain, an attorney can be sanctioned.
Id. As with any
deposition, there can be additional considerations to take.
The bottom line is that if a deponent wants to make a change
through an errata sheet, it is recommended to be done carefully, should be
thought through, and with the advice of counsel. In the event you are involved in litigation
in Massachusetts and seek advice on this or a similar subject, feel free to
give us a call.
