Changing Testimony After Deposition: What You Need to Know

Depositions play a crucial role in litigation, providing attorneys with sworn testimony that can shape the direction of a case. A witness’s statements given under oath are transcribed into a deposition transcript, which can later be used as evidence in court. Because deposition testimony is often pivotal in trial proceedings, any changes to it must be handled carefully and in compliance with legal guidelines.

Deposition testimony serves multiple purposes: it preserves witness statements, aids in discovery, and allows attorneys to assess the strengths and weaknesses of their case. However, there are instances where a witness may need to change or clarify their testimony after the deposition has concluded. Understanding the rules governing these changes is essential for maintaining credibility and protecting a client’s legal position.

Working with Deposition Transcripts and Errata Sheets

Once a deposition is completed, the court reporter prepares a transcript of the testimony, which is provided to both parties for review. If errors or misstatements are discovered, they can be corrected using an errata sheet.

An errata sheet allows the deponent to make changes to their testimony, but these changes are typically limited to correcting transcription errors, clarifying ambiguous statements, or addressing minor inaccuracies. While some jurisdictions allow for substantive changes, others impose stricter limitations to prevent abuse of the process.

Federal Rule of Civil Procedure 30(e) governs the use of errata sheets, permitting deponents to make “changes in form or substance” within 30 days of receiving the transcript. However, courts vary in their interpretation of what constitutes an acceptable change. Some courts scrutinize substantive changes more closely, especially if they appear to contradict prior testimony.

To learn more, watch the video below, "What happens if I make a mistake in a deposition?"

Changing Testimony and Its Consequences

Altering deposition testimony after the fact can have significant legal consequences. Opposing counsel may challenge the changes, arguing that they undermine the witness’s credibility. If the changes are viewed as an attempt to manipulate testimony, they may be disregarded by the court, or worse, expose the witness to impeachment at trial.

One of the most notable legal doctrines related to changing deposition testimony is the sham affidavit doctrine. This doctrine prevents a witness from making contradictory statements to avoid summary judgment. Courts apply this principle to errata sheet changes that substantially alter the original testimony without a valid explanation.

In practice, attorneys should advise witnesses to be as accurate and precise as possible during the deposition to minimize the need for post-deposition changes. If testimony must be changed, it is critical to provide a clear and reasonable justification for the revision to maintain credibility.

Best Practices for Managing Changes to Testimony

To avoid potential pitfalls when changing deposition testimony, consider the following best practices:

• Thoroughly Prepare Witnesses Before the Deposition: Ensuring that witnesses understand the deposition process and their role can minimize the likelihood of needing substantive corrections later.
• Review the Transcript Promptly: If corrections are necessary, they should be made within the allowed timeframe and in accordance with procedural rules.
• Use Errata Sheets Wisely: Changes should be carefully documented, with explanations provided for any substantive alterations.
• Anticipate Opposing Counsel’s Challenges: Be prepared to defend any changes made and explain why they were necessary.
• Maintain Transparency: Courts may look unfavorably on testimony changes that appear to be deceptive or self-serving. Honesty and clarity are key.

Conclusion

Changing testimony after a deposition is sometimes necessary but must be handled with caution. Attorneys must understand the legal framework governing errata sheets and the potential implications of modifying deposition testimony. By preparing witnesses thoroughly, reviewing transcripts carefully, and making justified corrections, litigators can protect their clients while maintaining the integrity of the legal process.

Changing Deposition Testimony FAQ

What is an errata sheet, and when can it be used?

An errata sheet is a document that allows a witness to correct errors in their deposition transcript. It can be used to fix transcription mistakes, clarify statements, or, in some cases, make substantive changes within the time limits set by court rules.

Can a witness change their testimony after a deposition?

Yes, but changes are subject to legal scrutiny. While some corrections are permitted, courts may reject alterations that significantly contradict prior testimony without a valid explanation.

How does the sham affidavit doctrine affect changes to deposition testimony?

The sham affidavit doctrine prevents a witness from changing their deposition testimony in a way that contradicts previous statements solely to avoid an unfavorable ruling, such as summary judgment.

What happens if a witness changes their testimony?

If a witness changes their testimony, opposing counsel may challenge the changes, arguing that they impact credibility. In extreme cases, courts may disregard altered testimony or allow impeachment at trial.

What are the best practices for managing deposition transcript changes?

Attorneys should prepare witnesses thoroughly, review transcripts promptly, use errata sheets judiciously, and provide valid justifications for any changes. Transparency and adherence to procedural rules are essential to maintaining credibility.

‍