Carter v. Companion Life Ins. Co. and the Use of Errata Sheets to Modify Deposition Testimony

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Authored By: Owen Mattox

Articles Editor, American Journal of Trial Advocacy

          Few individuals would complain about a party making efforts to correct a court reporter’s errant keystrokes or other immaterial errors contained within a deposition. But when it comes to altering significant portions of a deponent’s testimony, things can get contentious. A recent decision in Carter v. Companion Life Ins. Co. highlighted the use of “errata sheets” when altering testimony and addressed the two approaches courts around the country have used to determine whether substantive changes to deposition testimony are permitted under Fed. R. Civ. P. 30(e).[1]

          In Carter, Jeremy Carter brought claims under state law and 18 U.S.C. § 1961—the Racketeer-Influenced and Corrupt Organizations Act (“RICO”)—against a number of defendants who Carter alleged fraudulently sold “sham health insurance.”[2] During the plaintiff’s deposition, Carter, when asked whether he could have accessed the health insurance policy online, stated “I could have, but chose not to…I was already explained everything it covered.”[3] Following the conclusion of Carter’s deposition, Carter filed an errata sheet and his answer was amended to instead read “I don’t know if I could have; but I did not.  I was already explained everything it covered.”[4]  The defendants filed for summary judgment and filed a motion to strike Carter’s errata sheet, alleging that the proposed changes amounted to a violation of Fed. R. Civ. P. 30(e).[5] 

          In determining whether to grant the defendants’ motion to strike errata sheet, the court addressed the varying interpretations of Fed. R. Civ. P. 30(e).[6]  The plain language of the rule is straightforward; upon a deponent’s request, deponents are permitted to review deposition testimony and make changes either “in form or substance” to their testimony by signing a statement “listing the changes and the reasons for making them.”[7]  But the application of Fed. R. Civ. P. 30(e) has varied between circuits.

          Several circuits have taken the position that Rule 30(e) permits only “corrective” changes concerning typographical or transcription errors contained within the deposition.[8]  This limited application of the rule likely stems from a desire to prevent witnesses from treating the proceeding like “a take home examination”; taking unrefined deposition testimony and substituting in planned and artful responses to a party’s questions would eliminate the need for depositions.[9]  Further, a limited application of Fed. R. Civ. P. 30(e) prevents what could be viewed as an offshoot of filing a “sham affidavit.” [10]  Under Rule 30(e), a deponent could conceivably alter deposition testimony to create a genuine dispute of material fact to stave off the entry of summary judgment and, in the process, “diminish the utility of summary judgment as a procedure for screening out sham issues of fact.”[11]  Thus, courts narrowly interpreting Rule 30(e) scrutinize any material alteration of deposition testimony.[12]

          A majority of courts have interpreted Fed. R. Civ. P. 30(e) broadly, concluding that substantive changes are permitted under the plain language of the rule.[13]  This interpretation is founded on the notion that because Rule 30(e) contemplated “changes in form or substance,” the alteration of deposition testimony is permissible so long as the deponent abides by the other procedural requirements of the rule.[14]  Further, courts endorsing a broad interpretation of Rule 30(e) view the use of errata sheets as a tool to further “the purpose of the discovery process”—errata sheets allow parties to elicit “the true facts of a case before trial.”[15]  While this broad interpretation of Rule 30(e) could potentially lead to abuse, safeguards can be implemented by the court.[16]  For example, courts can require the “original deposition answers to remain part of the record and be read at trial” or “permit the reopening of the deposition to address the changes” and shift the costs of conducting the reopening of the deposition to the party who filed the errata sheet.[17]

          While other district courts in the Eleventh Circuit had pointed out the “narrow interpretation’s inconsistency with the plain language of the rule,” the court in Carter noted that the Eleventh Circuit had yet to explicitly decide whether Rule 30(e) permitted substantive changes to deposition testimony.[18]  The defendants, however, contended that the Eleventh Circuit had endorsed the narrow interpretation of Rule 30(e) in Norelus v. Denny’s Inc.[19]  There, the Eleventh Circuit ruled that a district court’s imposition of sanctions was proper where a party filed a sixty-three page errata sheet attempting to alter the plaintiff’s testimony in 868 ways.[20]  While the court in Norelus cited a number of cases endorsing the narrow interpretation of Rule 30(e), the district court in Carter ignored the defendants’ assertion that the Eleventh Circuit adopted the view of limiting Rule 30(e) to only permit immaterial changes to deposition testimony.[21]  The district court stated that the issue on appeal in Norelus concerned the imposition of more than $300,000 in sanctions, not “whether the changes were permissible.”[22]

          The district court ultimately ruled that Carter’s modifications to his deposition testimony were permissible under Rule 30(e). The court concluded that a broad interpretation of Rule 30(e) was “consistent with the plain language of the rule” because the rule contemplated changes in form or substance to deposition testimony.[23]  While the district court agreed that “a deposition should not be a take-home examination,” it stated that the utility of an errata sheet is in step “with the truth-seeking purpose of the discovery process”; prohibiting all substantive changes—including corrective changes—would prevent a party from ensuring that the record is clear of misrepresentations.[24]  The court found that, so long as adequate safeguards were implemented to prevent abuse, parties should be allowed to submit errata sheets to alter testimony in form or substance under Fed. R. Civ. P. 30(e).[25]

          The Eleventh Circuit has yet to definitively state whether Rule 30(e) permits a party to make substantive changes to deposition testimony. But in the interim, litigants who might be frustrated with a broad interpretation of Rule 30(e) have nothing to fear. Allowing for impeachment and the reopening of depositions will still be an option for courts seeking to ensure that both parties get a fair shake.

[1] 338 F.R.D. 413 (N.D. Ala. Mar. 18, 2021).

[2] 338 F.R.D. at 415.

[3] Id.

[4] Id. (emphasis added) (“Carter’s stated reason for the change is that he ‘does not know what was available online’ at the time.”).

[5] See id. at 416-17.

[6] See id.

[7] See Fed. R. Civ. P. 30(e)(1)(A)-(B).

[8] Hambleton Bros. Lumber Co. v. Balkin Enters, Inc., 397 F.3d 1217, 1225-26 (9th Cir. 2005); see Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383, 389 (7th Cir. 2000) (“[A] change of substance which actually contradicts the transcript is impermissible unless it can plausibly be represented as the correction of an error in transcription, such as dropping a ‘not.’”); Burns v. Bd. of Cnty. Comm’rs of Jackson Cnty., 300 F.3d 1275, 1282 (10th Cir. 2003) (explaining that Rule 30(e) “cannot be interpreted to allow one to alter what was said under oath”).

[9] Garcia v. Pueblo Country Club, 299 F.3d 1233, 1242 n.5 (10th Cir. 2002) (explaining that “depositions differ from interrogatories”); see Burns, 300 F.3d at 1282 (explaining that a broad interpretation of Rule 30 would allow deponents to “answer the questions with no thought at all then return home and plan artful responses”).

[10] See, e.g., Van T. Junkins and Associates v. U.S. Indus., 736 F.2d 656, 657 (11th Cir. 1984) (“When a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony.”).

[11] Perma Rsch. and Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969).

[12] See Carter, 338 F.R.D. at 416.

[13] See Podell v. Citicorp. Diners Club, Inc., 112 F.3d 98, 103 (2d Cir. 1997) (explaining that Rule 30(e) does not limit the types of changes a deponent can make to deposition testimony); see also Savoia-McHugh v. Glass, No. 3:19-CV-2018-MCR-HTC, 2021 WL 1516384, at *2 (N.D. Fla. April 16, 2021) (“Under the majority view, which is broader, Rule 30(e) does not limit the types of changes a deponent may make to his or her deposition transcript.”); DeLoach v. Philip Morris Cos., Inc., 206 F.R.D. 568, 573 (M.D. N.C. 2002) (“Defendants’ reading of Rule 30(e) as only allowing the correction of…typographical errors is too narrow, given the plain language of the rule.”) (emphasis added));Foutz v. Town of Vinton, Virginia, 211 F.R.D. 293, 295 (W.D. Va. 2002) (interpreting Rule 30(e) “broadly as to allow proposed deposition changes to be admitted into evidence.”); Holland v. Cedar Creek Mining, Inc., 198 F.R.D. 651, 653 (S.D. W. Va. 2001) (concluding that the rule itself does not limit substantive changes); Tingly Sys., Inc. v. CSC Consulting, Inc., 152 F. Supp. 2d 95, 120 (D. Mass. 2001) (“[T]he express language of Rule 30(e) allows a deponent to change the substance of his answers.”).

[14] Fed. R. Civ. P. 30(e)(1)(A)-(B) (explaining that the deponent must (1) file the errata sheet within 30 days of receiving a transcript of the deposition and (2) sign a statement outlining the changes and the “reasons for making them”); see Cultivos Yadran S.A. v. Rodriguez, 258 F.R.D. 530, 533 (S.D. Fla. 2009) (explaining that a broad interpretation of Rule 30(e) “is in line with the plain language of Rule 30(e) which contemplates changes in form or substance.”) (internal quotations omitted)).

[15] See Cultivos Yadran S.A., 258 F.R.D. at 533.

[16] See Unlimited Res. Inc. v. Deployed Res., LLC, No. 3:07-CV-961-J-25MCR, 2010 WL 55613, at *3 (M.D. Fla. Jan. 5, 2010).

[17] Unlimited Res. Inc., 2010 WL 55613, at *3; see Savoia-McHugh, 2021 WL 1516384, at *4 (“Generally, changes that are numerous, contradictory, or substantive warrant a reopening of the deposition.”).

[18] See Carter, 338 F.R.D. at 416 (citing Cultivos Yadran S.A., 258 F.R.D. at 533).

[19] 628 F.3d 1270 (11th Cir. 2010).

[20] See 628 F.3d at 1281-82.

[21] See Carter, 338 F.R.D. at 417 (“But the issue before the Eleventh Circuit in Norelus was not the one presented here.”). The Eleventh Circuit in Norelus also cited cases from jurisdictions that endorsed broadly interpreting Rule 30(e) to allow for substantive changes. See Norelus, 628 F.3d at 1281.

[22] Carter, 338 F.R.D. at 417.

[23] Id.

[24] Id.

[25] Id.

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