Why, When & How to Correct a Deposition Transcript Under the Federal Rules

Excerpted from Handling Federal Discovery by William M. Audet and Kimberly A. Fanady                                                      

I.     WHY

A.    You may request that a deponent review the deposition transcript or recording, make any changes and sign a statement of the changes. FRCP 30(e). A request for review is an “absolute prerequisite” to deposition corrections. Hambleton Bros. Lumber Co. v. Balkin Enterprises, Inc., 397 F.3d 1217 (9th Cir. 2005).

1.   Review helps assure that a deponent’s testimony is complete and accurate.

2.   Impeaching a witness with deposition testimony is more effective when the witness has to admit that he reviewed the transcript and thought it was correct. You also defeat the witness’s claim that the transcript does not accurately reflect his testimony.

B.     Review is not required unless a deponent or party requests it. FRCP 30(e)(1); Holland v. Cedar Creek Mining, Inc., 198 F.R.D. 651, 48 Fed. Rules Serv. 3d 1142 (S.D. W. Va. 2001).  Conversely, corrections are not permitted unless review is requested. EBC, Inc. v. Clark Bldg. Systems, Inc., 618 F.3d 253 (3d Cir. 2010).

C.     FRCP 30(e) is not restricted to correcting stenographical errors. See Unlimited Resources, Inc. v. Deployed Resources, LLC, 75 Fed. Rules Serv. 3d 938 (M.D. Fla. 2010) (court permitted both substantive and corrective changes but imposed safeguards to prevent abuse, including reopening deposition on amended answers at deponent’s expense and allowing both versions of transcript to be read at trial); Dering v. Service Experts Alliance LLC, 69 Fed. Rules Serv. 3d 939 (N.D. Ga. 2007) (party permitted to make changes which expanded upon but did not contradict his deposition testimony; however, deponent added sufficient additional information to warrant reopening deposition).

II.    WHEN

A.    Request a review before the deposition is completed. FRCP 30(e)(1).

B.     The deponent has 30 days to review the transcript after the court reporter notifies him that the transcript is available. FRCP 30(e)(1); EBC, Inc. v. Clark Bldg. Systems, Inc., 618 F.3d 253 (3d Cir. 2010); Hambleton Bros. Lumber Co. v. Balkin Enterprises, Inc., 397 F. 3d 1217 (9th Cir. 2005) (30-day period runs from court reporter’s notice that transcript available, not from date deponent receives transcript).  Notice to the deponent’s attorney constitutes notice to the deponent and starts the running of the 30-day limit. Welsh v. R.W. Bradford Transp., 231 F.R.D. 297 (N.D. Ill. 2005). The deponent must transmit the changes to the court reporter and certify the changes within 30 days of the notification; preparation of an errata sheet within 30 days does not satisfy the Rule. Id.

III.   HOW

A.    On the record at the deposition, request that the witness review the transcript pursuant to FRCP 30(e)(1).

B.     After the court reporter notifies the witness the transcript is available, under FRCP 30(e)(1) the witness has 30 days to:

1.   Review the transcript.

2.   Make any changes in form or substance.

3.   Sign a statement listing the changes and the witness’s reasons for making them. See EBC, Inc. v. Clark Bldg. Systems, Inc., 618 F.3d 253 (3d Cir. 2010) (statement of reasons required because it enables court to assess whether changes are made for a legitimate purpose); Unlimited Resources, Inc. v. Deployed Resources, LLC, 75 Fed. Rules Serv. 3d 938 (M.D. Fla. 2010) (Rule 30(e) does not prescribe level of specificity required for changes; deponent’s proffered reasons for changing transcript general and weak, but acceptable).

i.     Failing to provide reasons may void the changes and bind the witness to the original testimony. See EBC, Inc. v. Clark Bldg. Systems, Inc., 618 F.3d 253 (3d Cir. 2010); Hambleton Bros. Lumber Co. v. Balkin Enterprises, Inc., 397 F. 3d 1217 (9th Cir. 2005) (absence of statement of reasons indicated that corrections were purposeful rewrites made to manufacture factual issues; corrections stricken); Desulma v. City of New York, 50 Fed. R. Serv. 3d 865 (S.D.N.Y. 2001) (changes not permitted when plaintiff submitted changes without required Rule 30(e) explanation); Holland v. Cedar Creek Mining, Inc., 198 F.R.D. 651, 48 Fed. Rules Serv. 3d 1142 (S.D. W. Va. 2001) (motion to exclude changes in deposition testimony granted where witness failed to provide specific reasons for changes).

ii.    Both the original and the changed answers remain part of the record generated during discovery. See PThorn v. Sundstrand Aerospace Corp., 207 F.3d 383 (7th Cir. 2000) (both versions retained so trier of fact can evaluate honesty of alteration); Unlimited Resources, Inc. v. Deployed Resources, LLC, 75 Fed. Rules Serv. 3d 938 (M.D. Fla. 2010) (court permitted both substantive and corrective changes, but imposed safeguards to prevent abuse, including allowing both versions of transcript to be read at trial).

C.     The court reporter attaches the changes to the transcript. FRCP 30(e)(2). If the witness fails to review the transcript or fails to sign the statement of changes, the court reporter notes that no changes were made. FRCP 30(e)(2).

IV.   PRACTICE NOTES

A.    You may not want to request review and signature if you think the witness misstated something and you want to try to nail him with it at trial rather than give him a chance to fix it on review.

B.     Develop a standard time during a deposition to request a review, such as during the admonitions or as your last statement before concluding your examination, so you will not forget.

C.     If you represent the deponent, do not review and correct the transcript on the deponent’s behalf. The court may consider this fraudulent and dismiss your client’s claims or defenses. See Combs v. Rockwell Int’l Corp., 927 F.2d 486 (9th Cir. 1991).

D.    During your standard time to request a review, also request that any exhibits used at the deposition be annexed to the official transcript. FRCP 30(f)(2).

E.     Rule 30(b)(5) requires the court reporter to certify that the witness was sworn and that the testimony set forth in the transcript is complete and accurate. If the required certification is missing, the transcript may be unusable. See Xiangyuan Zhu v. Countrywide Realty Co., 165 F. Supp. 2d 1181 (D. Kan. 2001). When you receive the transcript, be sure the certification is included.

F.     Each party is responsible for ordering and paying for his own copy of the deposition transcript. A deponent may not object to the use of his deposition testimony on the grounds that a party did not provide him with the transcript. Brant v. Principal Life & Disability Ins. Co., 195 F. Supp. 2d 1100 (N.D. Iowa 2002).

About the Authors

William M. Audet is the founding partner of the nationally known law firm of Audet & Partners, LLP. Mr. Audet has prosecuted class action and individual cases involving securities, product liability, fraud, consumer and limited partnership claims. He has won multi-million-dollar settlements on behalf of plaintiffs and has successfully tried civil rights cases in federal court.

Mr. Audet is a member of the California and Wisconsin bars and is admitted to practice before numerous federal district courts throughout the United States and the Ninth Circuit Court of Appeals. Mr. Audet is a frequent contributor to the San Francisco bay area legal press. He can be reached at Audet & Partners, LLP., 221 Main Street, Suite 1460, San Francisco, California 94105, telephone: (415) 982-1776, fax: (415) 568-2556, e-mail: [email protected], website: http://www.audetlaw.com.

Kimberly A. Fanady is a sole practitioner in San Francisco. Her commercial litigation practice includes representing major financial institutions and other corporate clients in federal and state trial and appellate courts in the areas of contract and commercial disputes, lender liability, creditors’ remedies, consumer class actions involving unfair business practices, consumer credit reporting, automobile sales and financing, securities fraud, employment discrimination, wrongful termination, construction law, and workout/settlement negotiation and documentation.

Prior to opening her solo practice in May 1996, Ms. Fanady practiced with Buchalter, Nemer, Fields & Younger in San Francisco from 1989 to 1996 and with Cadwalader, Wickersham & Taft in New York City from 1986 to 1989. She is a member of the California and New York bars and various federal courts in California and New York.

She can be reached at the Law Offices of Kimberly A. Fanady, 55 New Montgomery St., Suite 618 San Francisco, California 94105, (415) 986-8467.

Handling Federal Discovery brings you 108 essential task outlines, each explaining “why,” “when,” and “how” to accomplish the task, annotated with 50 forms, hundreds of cases, and dozens of tips.