Bueche v. Noel, April 17, 2008 (Diaz)(unpublished)
How extensively can a deponent change her deposition testimony during her post-deposition review of the transcript? Pretty extensively, it turns out, according to an opinion yesterday from the Business Court.
In Bueche v. Noel, a non-party deponent made fifteen pages of changes and additions to her deposition testimony on errata sheets. The defendant moved to strike the changed and added testimony. Among other things, the defendant argued in its brief that the deponent had used the deposition as a "take home exam" to write answers on which its counsel had no opportunity to cross-examine her. (Links to the briefs are at the bottom of this post)
The federal courts are split on the scope of a deponent’s right to correct or add to her deposition answers, as demonstrated by the parties’ briefs. There was no North Carolina appellate court precedent on the issue.
The Court looked to Rule 30(e) of the North Carolina Rules of Civil Procedure, which authorizes changes "in form or substance" to the deposition testimony, so long as the deponent signs "a statement reciting such changes and the reasons given . . . for making them." The Court held that a deponent has the freedom to make any type of correction, whether as to form or substance, so the changes and additions were allowed.
The new testimony didn’t replace the previous testimony, however. The Court held that the original answers would remain part of the record and could be used for impeachment or any other relevant purpose. The Court also permitted the defendant to reopen the deposition on the limited subjects of the corrections made on the errata sheet, the reasons for those changes, and any reasonable follow-up questions.
The Court also ruled on another first impression issue of North Carolina deposition procedure:
It held that if a deponent wants an extension of the thirty day period allowed by Rule 30(e) of the Rules to read and sign a deposition, that extension must come from the Court, not from the court reporter.