Judge Martin C. Carlson of the Middle District of PA, sanctioned two non-party witnesses for providing false and misleading deposition testimony. According to Judge Carlson’s opinion the witnesses’ lies were not revealed until errata sheets were submitted by defense counsel. It reminded me of how often lawyers provide inadequate instructions to a witness about reviewing his or her transcript. Many lawyers will tell a deposition witness that they can review the transcript for any inaccuracies, mistakes or typographical errors. Such instructions are a mistake in law and advocacy. You want the deponent to sign the transcript and you are not afraid of any changes the deponent may make to his testimony.
Rule 30(e)(1) of the Federal Rules of Civil Procedure requires that the deponent or party must request that the transcript be reviewed for any changes. Once the request has been made at the deposition, the deponent has thirty days, after being notified by the court reporter, to review the transcript. Pursuant to Rule 30 (e)(1)(B), the deponent must sign a statement (i.e. errata sheet) listing any changes in form or substance and the reasons for making the changes.
A fair and complete Rule 30 (e) request goes something like this:
The court reporter has transcribed every question I asked and every answer you provided during this deposition. The court reporter will send your lawyer a transcript of this 
deposition. Once your lawyer receives the transcript, you have 30 days to review the transcript with your lawyer and make any changes you want to your answers. You will make those changes on something called an errata sheet. I’m showing you an example of an errata sheet. On this side of the form you can change your answer and explain the reason you made your changes. After you have completed your review, you must sign the bottom of the errata sheet. Do you have any questions about your review of the transcript?
Your Rule 30 (e) deponent-review request is imperative. Your ability to effectively impeach at trial will include letting the jury know that the witness had ample opportunity to cure his inconsistent statement. Bring a sample errata sheet to the deposition to show the witness when you are providing the above Rule 30 (e) request. Also, invite the deponent to make changes – as an advocate, you welcome two different answers to the same question!
A deponent’s answers will not necessarily end at the conclusion of the deposition.
