The errata sheet. You’ve probably never given it a second thought. It is baked into the Rule of Civil Procedure governing the taking of depositions. NCRCP 30(e) gives the deponent the right to review her deposition and to make “changes in form or substance” by completing an errata sheet and stating the reason for the changes.
But are there limits on a deponent’s right to revise her testimony? Surely, having testified that the “traffic light was green,” the witness can’t backtrack and revise her testimony about the light color to red. Can she?
Well, yes, she can. Judge Davis of the NC Business Court ruled in Relation Insurance, Inc. v. Pilot Risk Management Consulting, LLC, 2023 NCBC 21 that “North Carolina Rule 30(e) . . . places no limits on a deponent’s ability to make substantive changes to his prior deposition testimony on an errata sheet.” Op. ¶19. The changed testimony at issue in Relation Insurance wasn’t as dramatic as red lights becoming green, but it was close. There was a lot of “no’s” becoming “yeses” and vice-versa. The explanations for the about face were “I was mistaken” or “I misunderstood the question.”
The Business Court didn’t break any new ground in making its ruling. The Business Court has given the same interpretation to Rule 30(e) at least three times, in BB&T Boli Plan Tr. v. Mass. Mut. Life Ins. Co., 2017 NCBC 235 (N.C. Super. Ct. 2017), Window World of Baton Rouge, LLC v. Window World, Inc., 2018 NCBC 79, and in an unpublished Order in Bueche v. Noel. I wrote about those cases when they were decided, in 2008, 2009, and 2018.
If you’re having a difficult time accepting this generous interpretation of Rule 30(e), you’re not alone. Several federal courts “have refused to allow changes on an errata sheet that contradict the witness’s testimony.” The Eastern District of North Carolina is one of them. See, e.g., Thorp Revocable Tr. v. Ameritas Inv. Corp., 57 F. Supp. 3d 508, 518 (E.D.N.C. 2014) (“A change in ‘form’ would include correcting a typographical error or a spelling error. A change in ‘substance’ would include the substantive correction of a court reporter’s transcription (i.e., the witness answers ‘No,’ but the court reporter records ‘Yes’).”)
If you are thinking that this witness got off unaffected by his “corrected” deposition testimony, you’re wrong. Judge Davis said that he built in “two safeguards,” (though I count three, not two), making the deponent’s change of heart virtually worthless to him.
The Two (or three)”Safeguards”
The first safeguard installed by Judge Davis was that the “original answers to the questions posed at her deposition will remain part of the record and may be used for impeachment, as contemplated under the applicable North Carolina Rules of Evidence, or for any other relevant or proper purpose. Op. ¶21.
Second, Judge Davis gave counsel challenging the deposition changes a second crack at the flip flopping deponent. Counsel was given the opportunity to “re-depose [the deponent] for a period of no more than two (2) hours of on-the-record time—at Plaintiffs’ expense—with regard to any substantive changes to his prior deposition testimony that are contained on his Errata Sheet on the pages of his deposition transcript referenced herein.” Op ¶21.
Next, although he did not call it a third safeguard, Judge Davis said that Defendants’ counsel could “seek to challenge Cooper’s substantive corrections as contained in his Errata Sheet to the extent that Plaintiffs offer those corrections for the purposes of advancing or defeating summary judgment later in this case.” Op. ¶25.