by Spencer Page
We’ve all been there before: despite diligently preparing your client for their deposition, all of your planning is for naught the second they are asked a series of tough questions by opposing counsel. Now you, the prudent attorney, find yourself playing damage control, trying to correct inadvertent inaccuracies in your client’s deposition testimony like a sailor plugging holes in a leaky ship. Of course, you can always ask follow-up questions during the deposition to clarify your client’s prior answers, but what if follow-up questions simply aren’t enough? Then it’s time to focus on the errata sheet.
Under Texas Rule of Civil Procedure 203.1(b), a deponent “may change responses…by indicating the desired changes, in writing, on a separate sheet of paper, together with a statement of the reasons for making the changes.” Colloquially, this is known as an errata sheet and, to an astute attorney, it can salvage inaccurate testimony that might otherwise prejudice, or even tank, your client’s case. Errata sheets generally contain three categories of changes: corrections of typographical errors, changes that provide additional information that the deponent agreed to provide during the deposition, and changes that substantively alter the deponent’s testimony. The former two are rather straightforward and generally accepted; however, make a change that falls within the latter category – like changing a “yes” to a “no” – and you are likely to receive pushback from opposing counsel. But are you in the wrong for making the change?
It is worth noting that Rule 203.1(b) places no explicit limitation on the type of changes that can be made to a deponent’s testimony. Even still, it may seem inequitable to some of us to allow a deponent to treat a deposition as a “take-home test” and substantively change all of their answers to better support their position in the suit. Unfortunately (or fortunately, depending on which side of the table you find yourself), there is no Texas jurisprudence that directly answers the question: does Rule 203.1(b) allow changes to both form and substance, or just to form? Thankfully, however, the Federal Rules of Civil Procedure have an analogue – Rule 30(e) – that has been the subject of extensive discussion in federal courts and that can inform our discussion.
The majority of federal courts interpret Rule 30(e) to allow a deponent to make any type of change to the deposition transcript – whether of form or of substance. Relevant for the readers of this article, our closest sister court – the United States District Court for the Northern District of Texas, Dallas Division – has followed suit and adopted what has been espoused as the “traditional” or “majority” view to errata sheets, allowing changes to both form and substance – even where the deponent changes “no” responses to “yes” responses. In adopting the majority view, the District Court noted that Rule 30(e) only places two explicit restrictions on changes to a deposition: that the changes be made within 30 days after the transcript becomes available for review and that the deponent must give reasons for the changes. Furthermore, under the plain language of Rule 30(e), a judge would not even be required to examine the sufficiency, reasonableness, or legitimacy of the reason for the changes. This means that the witness could change his or her deposition testimony carte blanche, and changes of any nature, no matter how considerable or fundamental, would be permitted, even if the changes were wholly inconsistent with, or contradictory to, the original deposition testimony.
Although it may seem that the majority view encourages a no-holds-barred approach to errata sheets, it does allow for two safeguards to prevent abuse of Rule 30(e). First, the original deposition testimony remains a part of the record and can always be read at trial to highlight any questionable substantive changes. Second, if the changes make the deposition incomplete or useless without further testimony, the deposing party can reopen the examination with a limited scope of following up on the changes. At the reopening, however, deposing counsel can only ask questions following up on the changes and inquire about the origin and reasons for the changes.
The Northern District of Texas, Dallas Division, is not alone; a majority of the federal courts within the Fifth Circuit (and across the nation) who have addressed this issue have adopted the majority view. However, federal jurisprudence is not mandatory authority in Texas state courts; so, how does this help those of us practicing in state court? Well, when a Texas Rule of Civil Procedure has a parallel federal rule, such as here, Texas courts routinely rely upon federal jurisprudence for any guidance it may yield. Although the text of Federal Rule 30(e) and Texas Rule 203.1(b) are not identical, they are analogous and jurisprudence interpreting Rule 30(e) can be considered by a state court in determining the latitude permitted under Rule 203.1(b) to make changes to a deponent’s testimony. Unless and until a Texas court holds otherwise, it would behoove a prudent attorney to keep in mind the Federal majority view to deposition errata sheets and the safeguards put in place in federal court to prevent abuse of Rule 30(e) the next time they find themselves on either side of substantive changes being made in a deposition errata sheet.
Spencer Page is an associate attorney at McClure Law Group, where he exclusively practices family law. For citations in support of the assertions set forth in this article or for other inquiries, he can be reached by email at email@example.com.