Zoom depositions have presented interesting challenges during the COVID-19 pandemic. When the court reporter is not physically present in the room with the deponent and/or the deponent is masked and socially distanced, the accuracy of the transcript can suffer. Combine this with scientific or technical testimony, along with screen “freeze” and other technical glitches, and – voilà – you have the perfect recipe for a transcript laden with errors.

How does an attorney address the circumstance of “I didn’t say that” when reviewing a deposition transcript?

The errata sheet. In Latin, an erratum is an error in printing or writing. The plural of erratum is errata. Black’s Law Dictionary (11th ed. 2019) defines an errata sheet as, “[a]n attachment to a deposition transcript containing the deponent's corrections upon reading the transcript and the reasons for those corrections.”

While an errata sheet can be used to correct transcription errors, be warned that an errata sheet is not a panacea for a poorly given deposition.

As discussed below, outside of transcription errors, courts have consistently held that an errata sheet cannot be used to “rewrite” testimony to manufacture an issue of material fact – especially in connection with a motion for summary judgment.

State and Federal Rules

Wis. Stat. section 804.05(6) governs the use of errata sheets, which provides:

Submission to deponent; changes; signing. If requested by the deponent or any party, when the testimony is fully transcribed the deposition shall be submitted to the deponent for examination and shall be read to or by the deponent. Any changes in form or substance which the deponent desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the deponent for making them. The deposition shall then be signed by the deponent, unless the parties by stipulation waive the signing or the witness is ill or cannot be found or refuses to sign. If the deposition is not signed by the deponent within 30 days after its submission to the deponent, the officer shall sign it and state on the record the fact of the waiver or of the illness or absence of the deponent or the fact of the refusal or failure to sign together with the reason, if any, given therefor; and the deposition may then be used as fully as though signed unless on a motion to suppress under s. 804.07 (3) (d) the court holds that the reasons given for the refusal or failure to sign require rejection of the deposition in whole or in part (emphasis added).

Wisconsin’s errata statute is modeled after Rule 30(e) of the Federal Rules of Civil Procedure, which provides:

Review by the Witness; Changes.

(1) Review; Statement of Changes. 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:

(A) to review the transcript or recording; and

(B) if there are changes in form or substance, to sign a statement listing the changes and the reasons for making them.

(2) Changes Indicated in the Office's Certificate. The officer must note in the certificate prescribed by Rule 30(f)(1) whether a review was requested and, if so, must attach any changes the deponent makes during the 30-day period.

Both statutes explicitly allow for changes “in form or substance” so long as the changes are accompanied by a signed statement explaining the reasons for the change.

Correcting the Record: Treating Errata Sheets as Sham Affidavits: Thorn

Wisconsin does not have developed case law on errata sheets and the boundaries for making substantive changes to a deposition transcript.

The federal courts, including the Court of Appeals for the Seventh Circuit, have adopted the “sham affidavit” rule, precluding the creation of genuine issues of fact on summary judgment by the submission of an affidavit that directly contradicts earlier deposition testimony.¹ The rule was created on the presumption that testimony given in depositions, where witnesses speak for themselves and are subject to cross-examination, is more trustworthy than testimony by affidavit, which is often prepared by attorneys.²

When considering errata sheets, the Seventh Circuit uses a similar analysis to the sham affidavit rule, recognizing that errata sheets are allowed by the federal rules.

In 2000, the Seventh Circuit in Thorn v. Sundstrand Aero. Corp. noted in its review of an errata sheet, “Though this strikes us as a questionable basis for altering a deposition, it is permitted by Fed. R. Civ. P. 30(e), which authorizes ‘changes in form or substance.’”³

Thorn involved a claim of age discrimination brought by two employees who were laid off from their jobs. During a deposition, the defendant’s employee was asked what criteria his superiors had told him to utilize when making layoffs, and he answered that the decision was based on “which people did we feel have the longest-term potential for those whose product lines we were eliminating.”

The plaintiffs pointed to this answer as evidence of age discrimination. The defendant responded by having its employee submit an errata sheet to modify his answer. Claiming that his answer was “garbled,” the employee changed his answer in the errata sheet to say that he made his decision based on “which people were associated with the products that had the longest-term potential versus those whose product lines we were eliminating.”

Offering strategic advice, the court noted that it thought the defendant was not doing itself any favors by using an errata sheet to make the correction:

[The defendant] didn’t help itself by the [defendant’s employee] altering his deposition. If at trial [plaintiff] tried to use [defendant’s employee] garbled phrase to impeach his testimony, or as an admission, [defendant’s employee] could explain what he meant, and it would be for the jury to decide whether the explanation was truthful. He could not remove the issue from the jury by altering the transcript of his deposition. The tactic was foolish rather than merely otiose because it suggests guilty knowledge and merely riveted the plaintiff's attention upon a passage that would otherwise have been dismissed by the trier of fact as terminally muddled.

Analogizing the case law of sham affidavits used to correct or alter witness deposition testimony,⁴ the Thorn court held that a change of substance that contradicts the transcript is “impermissible unless it can plausibly be represented as the correction of an error in transcription, such as dropping a ‘not.’”⁵

Thorn Progeny: Let Errata Sheets Speak for Themselves

Federal district courts within the Seventh Circuit have mostly interpreted Thorn as a limited ruling that permits striking or disregarding errata sheets within the context of a dispositive motion. These district courts have expressed comfort with letting errata sheets (even dubious ones) stand – thus leaving them open to credibility arguments.

In United States ex rel. Robinson v. Ind. Univ. Health Inc., the court held that:

[T]he plain text of Rule 30(e)(1)(B) coupled with the language actually used by [the Thorn court] compels the conclusion that Thorn does not empower the Court to provide the remedy [to strike an errata sheet from the record]. Instead, Thorn permits a trial judge to disregard substantive errata changes on summary judgment where the changes do not reflect errors in transcription.⁶

The court in Arce v. Chi. Transit Auth. held similarly:

What these analogous sham affidavit cases demonstrate is that courts ordinarily must defer to juries to resolve factual disputes and decide the credibility of witnesses who change their testimony after a deposition. It is only when a court is resolving a summary judgment motion that it is empowered to disregard contradictory testimony. … As a result, there is no reason for a party to file a motion to strike changes in an errata sheet – or a court to consider such a motion – unless and until a party seeks summary judgment. If no party moves for summary judgment, all changes in testimony – even contradictory ones – should be resolved by the jury, just as they are when a witness gives contradictory testimony at trial. …

Subject to the rules of evidence, the jury is permitted to hear the original answer, the change, and the reasons for the change and decide – in the context of all the other evidence – whether to credit either answer and what weight to assign it.⁷

The U.S. District Court for the Western District of Wisconsin, while not expounding on the state statute at all, stated in Brainstorm Interactive, Inc. v. Sch. Specialty, Inc., “With these nuances in the law, the court is not prepared to strike the errata sheets as a whole, but will consider specific challenges where relevant in the discussion of the facts below … defendant is free to cross-examine [the plaintiff].”⁸

In the face of substantial alterations to testimony through an errata sheet, the U.S. District Court for the Eastern District of Wisconsin in Thermal Design, Inc. v. Guardian Bldg. Prods., likewise did not strike an errata sheet despite being troubled by the attempted corrections.⁹ Rather than strike the errata sheet as requested, the court instead stated that attempts to rehabilitate the plaintiff’s testimony during summary judgment would be subject to scrutiny under the sham affidavit rule.

The list of cases in which a district court in the Seventh Circuit actually granted a motion to strike an errata sheet for its alteration to testimony is considerably thinner, and mostly comprises of unpublished cases. In Treat v. Tom Kelley Buick Pontiac GMC, Inc., the court, relying on the reasoning in Thorn themselves, struck an errata sheet because it felt the changes made were improperly substantive.¹⁰ This case noted several of the unpublished cases that made the same decision to strike an errata sheet from the record,¹¹ but as noted earlier, this is a minority view within the Seventh Circuit.

A Sample of Other Circuits: A Deposition is Not a Take-home Examination

Among the other circuits, there is a mixed view on what is allowed with substantive changes to testimony through an errata sheet. Some circuits strongly disfavor an errata sheet that substantially alters testimony, even favoring striking errata from the record when appropriate.

For example, in Hambleton Bros. Lumber Co. v. Balkin Enters, the Court of Appeals for the Ninth Circuit affirmed the district court’s order striking the plaintiff’s deposition errata sheet for violating Rule 30(e).¹² The district court “was troubled by the deposition corrections’ seemingly tactical timing – the corrections were submitted only after [defendant’s] motion for summary judgment was filed – and by their extensive nature.” The district court ruled that the changes “were not corrections at all, but rather purposeful rewrites tailored to manufacture an issue of material fact … to avoid a summary judgment ruling in his favor.”

On appeal, the Ninth Circuit ruled that “this type of ‘sham’ correction is akin to a ‘sham’ affidavit.” Affirming the lower court’s decision, the court of appeals wrote: “While the language of FRCP 30(e) permits corrections ‘in form or substance,’ this permission does not properly include changes offered solely to create a material factual dispute in a tactical attempt to evade an unfavorable summary judgment.”

In Combs v. Rockwell Int'l Corp., the Court of Appeals for the Ninth Circuit affirmed the district court’s order dismissing the case with prejudice and granting Rule 11 sanctions against the plaintiff and his counsel who, to avoid summary judgment, tried to use an errata sheet to make substantive changes to the plaintiff’s deposition testimony in violation of FRCP 30(e).¹³

Plaintiff made 36 changes, many of which materially altered the substance of his testimony. “Among the most striking changes were several reversals of [plaintiff’s] answers to key questions.” The changes “dealt with issues of central importance in the upcoming summary judgment hearing.” As a sanction for “attempt[ing] to deceive the district court on material matters before it,” the district court dismissed plaintiff’s claims.

On appeal, the Ninth Circuit affirmed, stating, “[f]alsifying evidence is grounds for the imposition of the sanction of dismissal.” The court found that the plaintiff’s conduct was “so egregious that there is no need to reach the merits of the motion for summary judgment” and “[t]he case was properly dismissed.”

In Burns v. Bd. of County Comm'rs, the Court of Appeals for the Tenth Circuit affirmed the district court’s decision to disregard a deposition errata sheet based upon the sham affidavit rule.¹⁴ In Burns, the plaintiff sued his employer for race discrimination. At his deposition, the plaintiff conceded he was not terminated because of his race. After the deposition, he submitted an errata sheet to change his answer from “no” to “yes.” At summary judgment, the district court treated plaintiff’s “attempt to rewrite portions of his deposition” as a sham affidavit.

On appeal, the Tenth Circuit affirmed. The court saw “no reason to treat Rule 30(e) corrections differently than affidavits,” and held that plaintiff’s attempt to amend his deposition testimony must be evaluated under the sham affidavit rule. Because plaintiff was subject to cross-examination at his deposition, the errata sheet was not based on any newly discovered evidence, and plaintiff’s corrected answers did not reflect any need to clarify, the errata sheet was properly disregarded as a sham affidavit.

In Garcia v. Pueblo Country Club, the Court of Appeals for the Tenth Circuit expressed dismay and disapproval by defense counsel’s attempt to rely upon an errata sheet that “strayed substantively from the original testimony.”¹⁵ The court said it would “not condone counsel’s allowing for material changes to deposition testimony [and] use of such altered testimony that is controverted by the original testimony,” citing several district court decisions in support.¹⁶ Quoting Greenway v. Int'l Paper Co.,¹⁷ the Tenth Circuit ascribed the purpose and scope of Rule 30(e) as follows:

The purpose of Rule 30(e) is obvious. Should the reporter make a substantive error, i.e., he reported “yes” but I said “no,” or a formal error, i.e., he reported the name to be “Lawrence Smith” but the proper name is “Laurence Smith,” then corrections by the deponent would be in order. The Rule cannot be interpreted to allow one to alter what was said under oath. If that were the case, one could merely answer the questions with no thought at all then return home and plan artful responses. Depositions differ from interrogatories in that regard. A deposition is not a take home examination.

While the views in the cases above represent those closest to the Seventh Circuit’s perspective on the issue, the matter is by no means settled in the federal judiciary, and there is variance, particularly between U.S. District Courts within every circuit.¹⁸

Final Considerations

Regardless of jurisdiction and despite a variety of analyses, the general understanding of the effect of Rule 30(e) is to allow substantive changes to deposition testimony – even dramatic ones – with an errata sheet.

The use of those corrections, at least within the Seventh Circuit, depends on whether an error in transcription can be attributed to the court reporter. It is also clear within the Seventh Circuit that, in an absence of a traceable error of transcription to a court reporter, errata sheets that materially alter the testimony of a deposed party cannot then be relied on by that party to try and defeat a dispositive motion.

What is less uniform is how any given court might handle errata sheets outside the dispositive motion setting. A party might not be able to rely on an errata sheet that dramatically alters testimony absent a transcription error to defeat a summary judgment motion, but under the federal rules, can they still wield those corrections for purposes of trial?

Many federal courts suggest that the answer is yes. These decisions also support the proposition that the more brazen the attempt to correct deposition testimony, the better the opportunity for the opposing party to attack the credibility of the witness (and by extension the credibility of his or her attorney who submitted the errata).

Conclusion: Precedence Matters

For the Wisconsin state court practitioner, there is clear precedential support within the Seventh Circuit to submit errata sheets and make changes to a deposition transcript that aim to correct transcription error.

Without a transcription error, case law favors disregarding errata sheets with substantial revisions that contradict prior deposition testimony, specifically in the context of a motion for summary judgment.

But without developed state case law or rules beyond plain statutory language, Wisconsin does not seem readily available to establish a dramatic departure from the precedent set by the Seventh Circuit on whether an errata sheet should be allowed or stricken.

Given the Wisconsin Supreme Court’s clear precedent regarding “sham affidavits” and the ubiquitous analogizing of the sham affidavit rule by the Seventh Circuit to errata sheets made under similarly dubious pretenses, the Wisconsin judiciary would likely embrace the precedent of letting errata sheets speak for themselves.

This article was originally published on the State Bar of Wisconsin’s Litigation Section Blog. Visit the State Bar sections or the Litigation Section web pages to learn more about the benefits of section membership.

Endnotes

¹ ​See ​​Yahnke v. Carson, 2000 WI 74, 236 Wis. 2d 257, 266, 613 N.W.2d 102, 107 (citing Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 5 (1st Cir. 1994); Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969); Martin v. Merrell Dow Pharm., Inc., 851 F.2d 703, 706 (3d Cir. 1988); Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir. 1984); S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495-96 (5th Cir. 1996); Reid v. Sears, Roebuck & Co., 790 F.2d 453, 460 (6th Cir. 1986); Babrocky v. Jewel Food Co., 773 F.2d 857, 861-62 (7th Cir. 1985); Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1364-65 (8th Cir. 1983); Radobenko v. Automated Equip. Corp., 520 F.2d 540, 544 (9th Cir. 1975); Franks v. Nimmo, 796 F.2d 1230, 1237-38 (10th Cir. 1986); Van T. Junkins & Assoc., Inc. v. U.S. Indus., Inc., 736 F.2d 656, 657-59 (11th Cir. 1984); Sinskey v. Pharmacia Ophthalmics, Inc., 982 F.2d 494, 498 (Fed. Cir. 1992)).

²Yahnke, 236 Wis. 2d art 266-67 (citing Russell v. Acme-Evans Co., 51 F.3d 64, 67 (7th Cir. 1995)).

³Thorn v. Sundstrand Aero. Corp., 207 F.3d 383, 389 (7th Cir. 2000) (internal quotations omitted).

⁴See Piscione v. Ernst & Young, L.L.P., 171 F.3d 527, 532-33 (7th Cir. 1999); Bank of Illinois v. Allied Signal Safety Restraint Systems, 75 F.3d 1162, 1168-69 (7th Cir. 1996); Russell v. Acme-Evans Co., 51 F.3d 64, 67-68 (7th Cir. 1995); Schiernbeck v. Davis, 143 F.3d 434, 437-38 (8th Cir. 1998); Raskin v. Wyatt Co., 125 F.3d 55, 63 (2d Cir. 1997); cf.Sullivan v. Conway, 157 F.3d 1092, 1096-97 (7th Cir. 1998).

⁵Thorn 207 F.3d at 389.

⁶ 204 F. Supp. 3d 1040, 1042-43 (S.D. Ind. 2016) (italics emphasis added).

⁷ 311 F.R.D. 504, 511 (N.D. Ill. 2015).

⁸ No. 14-cv-50-wmc, 2014 U.S. Dist. LEXIS 168607, at 3 (W.D. Wis. Dec. 5, 2014).

⁹ No. 08-C-828, 2011 U.S. Dist. LEXIS 139794, at 5 (E.D. Wis. Dec. 5, 2011).

¹⁰ 710 F. Supp. 2d 777, 792 (N.D. Ind. 2010).

¹¹ ​See Murray v. Conseco, Inc., 2009 U.S. Dist. LEXIS 53953, 2006 WL 2644935 (S.D. Ind.) (striking deposition testimony after finding that the errata sheets “made material and contradictory changes to [the witnesses’] deposition testimony”); Paul Harris Stores, Inc. v. Pricewaterhousecoopers, LLP, 2006 U.S. Dist. LEXIS 65840, 2006 WL 2644935 (S.D. Ind.) (striking deposition testimony because it was “an attempt to impermissibly change the factual testimony offered during Hettlinger's deposition, a tactic which has been rejected by the Federal courts”).

¹² 397 F.3d 1217, 1224-26 (9th Cir. 2005).

¹³ 927 F.2d 486,488-89 (9th Cir. 1991).

¹⁴ 330 F.3d 1275, 1281-82 (10th Cir. 2003).

¹⁵ 299 F.3d 1233, 1242 n.5 (10th Cir. 2002).

¹⁶Id., citing Coleman v. Southern Pac. Transp. Co., 997 F. Supp. 1197, 1205 (D. Ariz. 1998) (discrediting deposition testimony directly contradicted by errata sheet); S.E.C. v. Parkersburg Wireless, L.L.C., 156 F.R.D. 529, 535 (D.D.C. 1994) (noting modern trend in which courts do not allow a party “to make any substantive change she so desires” in deposition testimony); Rios v. Bigler, 847 F. Supp. 1538, 1546 (D. Kan. 1994) (stating that the court will consider only those changes which clarify the deposition, and not those which materially alter it); Greenway v. International Paper Co., 144 F.R.D. 322, 325 (W.D. La. 1992) (suppressing deponent's attempt to rewrite material answers given in deposition); Barlow v. Esselte Pendaflex Corp., 111 F.R.D. 404, 406 (M.D.N.C. 1986) (refusing to consider changes to deposition that were made in bad faith).

¹⁷ 144 F.R.D. 322, 325 (W.D. La. 1992).

¹⁸See EEOC v. Skanska USA Building Inc., 278 F.R.D. 407 (W.D. Tenn. 2012) for its extensive exploration of the subject of substantive change to deposition testimony through an errata sheet, and voluminous citation to case law on the subject.