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Substantive Changes to Deposition Testimony
(Debunking Another Courthouse Myth)
Introduction
This is an effort to disabuse our readers of the mistaken
belief that deponents can correct only the court reporter’s
errors and typos by way of an errata sheet to a deposition. That
is another “Courthouse Myth.” There is absolutely no limit to
the changes a deponent can make to the substance of his or her
deposition testimony without having to say that the court
reporter misunderstood or mis-transcribed the answer.
However, while a plaintiff who is suing in a car crash case can
change his or her testimony to say that she turned left instead
of right at the intersection, the difficult part is balancing the
need for accuracy with the loss of credibility one invites from
the mere fact of changing an answer. The other parties may
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ASSON
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re-depose witnesses who change their answers, so litigants are
left with the tactical problem of explaining how they could
have been wrong the first time they testified about a matter,
but not the second time.
As you can guess, some mistakes are ignored to stay
away from the Pandora’s Box that a correction can open. But
where mistakes are made which can be said to amount to false
testimony, the failure to make substantive corrections quickly
can lead to sanctions against both the client and the attorney.
Rule 1.310(e) and the Motel 6 Case
Ever since Fla. R. Civ. P. 1.310(e) was originally
enacted more than forty years ago, that rule has expressly
permitted deponents to make changes to the substance of their
deposition testimony. The 1967 version of the rule provided:
“Any changes in form or substance that the witness wants to
make shall be listed in writing by the officer with a statement
of the reasons given by the witness for making the changes.”
For twenty-five years after that rule was enacted, most
attorneys apparently assumed incorrectly that the substantive
“changes” referred to in that rule must have been changes
which resulted from misunderstanding by the reporter, or
mistakes in transcription or typing, in addition to spelling
errors or other matters of mere “form.”
The original 1967 “Authors’ Comment” to Rule 1.310
provided a clear indication that more sweeping changes to
deposition testimony than corrections to matters of form or
transcription were permitted by the rule, wherein those
comments noted: “The amendments may be of substance as
well as form. The procedure is not applicable to errors made
in reporting or transcribing the proceedings. These should
be remedied, not by changing, but by correcting the deposition
before it is finally certified by the reporter and the officer.”
(Emphasis added). Those comments were largely overlooked
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and the “Courthouse Myth” grew that deponents could make
only corrections to matters of form and court reporter errors.
Then finally came the first Florida case clearly holding
that the rule meant what it said. In Motel 6, Inc. v. Dowling,
595 So. 2d 260 (Fla. 1st DCA 1992), the court held that a
witness could reconsider his or her testimony and make
substantive changes to a deposition on the errata sheet, which
would be admissible in evidence like the rest of the deposition.
A party who wished to confront the witness about the changes
had to reopen the deposition before trial, according to the First
District in Motel 6:
Rule 1.310(e), Florida Rules of Civil
Procedure, expressly permits a witness to review his
deposition testimony and make corrections, in both
the form and substance, to his testimony. . . .
[A]lthough the issue of the use of errata sheets at trial
is one of first impression in Florida, we note that our
decision on this point is consistent with decisions of
the federal courts and other state courts which have
interpreted substantially similar statutes. See e.g.
Usiak v. New York Tank Barge Company, 299 F.2d
808 (2d Cir. 1962); Valley National Bank v. National
Association for Stock Car Auto Racing, 153 Ariz.
374, 736 P.2d 1186 (Ariz. App. 1987); George v.
Double D Foods, Inc., 155 Cal. App. 3d 36, 201 Cal.
Rptr. 870 (Cal. App. 2d Dist. 1984); and Seattle First
National Bank v. Rankin, 59 Wash. 2d 288, 367 P.2d
835 (Wash. 1962).
Nevertheless, the motel argues that this result
is unfair because it was denied the opportunity to
cross-examine Hickox concerning these changes.
Thus, argues the motel, the errata sheet was nothing
more than an affidavit. We disagree.
If the motel wished to cross-examine Hickox
regarding the changes, the burden was on the motel
to reopen the deposition. Sanford v. CBS, Inc., 594
F.Supp. 713, 225 U.S.P.Q. (BNA) 136 (N.D. Ill.
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1984). Counsel could have then asked questions
which were made necessary by the changed answers,
questions about the reasons the changes were made,
and questions about where the changes originated,
whether with the deponent or with his attorney.
Lugtig v. Thomas, 89 F.R.D. 639, 642 (N.D. Ill.
1981). By availing itself of this remedy, the motel
could have discovered, pretrial, whether the changed
answers were the result of collusion, as the motel now
charges, or were the result of improved memory.
Id. at 261-62.
Lawyers quickly began using errata sheets for their
intended purpose. But defense counsel soon started using
language from the Motel 6 case to try to invade the attorney-
client privilege.
Potential for Invasion into Attorney-Client Privilege
The reference in Motel 6 to a party being able to ask at
the re-opened deposition about whether changes to testimony
“originated . . . with the deponent or with his attorney” worked
some mischief for awhile. When deponents made important
changes to their testimony on errata sheets, the opposing
parties would seek discovery of attorney-client
communications and notes which reflected them. While trial
judges mistakenly allowed such inquiries in some cases, the
appellate decisions generally protected the privilege.
In Feltner v. Internationale Nederlanden Post Bank
Groep, 622 So. 2d 123 (Fla. 4th DCA 1993), the court
established a line between permissible inquiry at the re-opened
deposition and impermissible inquiry into privileged areas:
While the deposition may be reopened, its
substance must relate to the changes. The question of
the attorney/client privilege as it relates to the subject
of the reopened deposition has not been explored
fully in prior decisions. In Lugtig, the court stated that
at a reopened deposition “deposing counsel can ask
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questions which were made necessary by the changed
answers, questions about the reasons the changes
were made, and questions about where the changes
originated, whether with the deponent or with his
attorney.” 89 F.R.D. at 642. This comment was
repeated with approval in Motel 6. Yet neither case
addressed the attorney/client implications of such
questioning, nor in either case was there a question as
to whether documents relating to the errata sheets
should be produced.
The attorney/client privilege, when properly
invoked, must be respected. It is not waived because
a witness changes an answer to a question after
consulting with an attorney. The fact of consultation
may be brought out. However, the substance of the
communications is protected.
Id. at 125 (emphasis added).
The court in Feltner permitted the deposition to be
reopened without firm limits on what questions could be asked
about the reasons for the changed testimony. But the court
quashed the trial judge’s ruling permitting discovery of drafts
of errata sheets reflecting attorney-client communications. If
push comes to shove in proceedings surrounding a re-opened
deposition, the appellate courts will probably grant certiorari
to prevent invasions into the privilege. Do not waive any
objection to questions about the substance of your
communications with your client, or cave into an erroneous
ruling by the trial court in that area without asking for a stay of
the ruling for long enough to permit review by the DCA.
Use of Errata Sheet to Gain Credibility and Avoid
Sanctions
Lawyers sometimes are faced with the difficult situation
of counseling their clients to correct mistaken testimony in
order to prevent attacks on credibility at trial with collateral
evidence which is expected to be contrary to their clients’
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deposition testimony. The problem is complex. If the revised
testimony would be less favorable than the original testimony,
and the deposition is not corrected, the deponent will lose
credibility when the true state of affairs is revealed at trial. If
the revised testimony is more favorable, then the fact of the
revision opens up the deponent to a similar attack. Either way,
the mere fact that the correction is made will likely be offered
to demonstrate a lack of trustworthiness of the deponent.
But some mistakes are too big to go uncorrected. Your
client could destroy his or her own case by a thoughtless
answer or two after a misunderstood question. Memory
problems could also jeopardize your client’s case unless
corrected by errata sheet after the deposition. While the
reasons for the change can usually be explained to the jury,
some mistakes might entitle the defense to a summary
judgment on a claim or issue.
Even more of a concern than losing credibility is the
need to correct a client who deliberately falsifies testimony or
fails to reveal material facts. Such discovery misconduct can
lead to sanctions including dismissal.
Lawyers also need to worry about themselves as
professionals when their clients testify falsely, and that falsity
is known to the attorney. “False testimony by a client also has
ethical ramifications for the lawyer. Under rule 4-3.3(a)(4), . .
. [i]f a lawyer has offered material evidence and thereafter
comes to know of its falsity, the lawyer shall take reasonable
remedial measures . . . [which] may include disclosing the false
testimony to the court or to the other party, even though the
disclosure involves confidential information under rule 4-
1.6..” Baker v. Myers Tractor Services, Inc., 765 So. 2d 149
(Fla. 1st DCA 2000). The last thing any of us needs is to
jeopardize our law license by overlooking our client’s false
deposition testimony.
If you should choose to advise your client to use the
errata sheet to attempt to rectify his or her false testimony, do
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it before the other side moves to impose sanctions. In Baker,
the deponent tried to “come clean” with some corrections to
his deposition testimony, but waited too long to do so, and
suffered dismissal which was affirmed on appeal:
Among other things, appellant argues that the
trial court erred in granting the dismissal because he
filed an errata sheet to his deposition pursuant to rule
1.310(e), Florida Rules of Civil Procedure, by which
he changed his testimony by disclosing the prior
injuries to his knee. Without addressing whether the
errata sheet, which did not state the reasons Baker
was making the changes, was in compliance with rule
1.310(e), because the errata sheet was filed more
than three months after the deposition in which
appellant made the false statements and more than
one week after the filing of the motion for
involuntary dismissal which disclosed the false
testimony, the filing does not cure the fraud in the
instant case.
Id. at 151 (footnotes deleted and emphasis added).
Counsel your client to make such corrections as quickly
as possible. Advise him or her to be specific with the reasons
for the prior mistakes. The courts are on a rampage to punish
those who misuse the system.
Conclusion
There is a lot for attorneys to think about when it comes
to using Rule 1.310(e) to correct substantive matters in
depositions. The first step is to realize that the procedure is
there to be used. A good rule to live by in deciding whether or
not to counsel your client to make such corrections is the
phrase on many courtroom walls: “We who labor here, seek
only truth.”
Keep Tryin!
Roy
