Today Jim Garrity revisits the headaches caused by examining lawyers who frequently interrupt your deponents' answers. To combat this problem, Garrity offers you a six-pronged strategy for stopping this practice and/or creating a strong record that will allow your deponents to later add materially to their interrupted testimony, whether by errata sheet, affidavit, or live testimony. Courts are far more likely to allow that where you've used Garrity's strategies. (By the way, if you have a moment, would you send our production team a small "thank you" by leaving us a five-star rating wherever you listen to our podcast? It takes just 30 seconds - we timed it! - and it's deeply appreciated. Our crew devotes a great deal of time to research and production, and the podcast is not only free, but also uncluttered by pesky advertising. Thank you so much.)SHOW NOTESIn re Injectafer Prod. Liab. Litig. ALL CASES, No. CV 19-276, 2022 WL 4280491 (E.D. Pa. Sept. 15, 2022) (“Defendants propose. . . changing “It would be one of the—yes” to “It would be one of the sources of information. Yes.” This change is not necessarily inconsistent with the original testimony because it appears that the deponent was cut off or otherwise stopped speaking in the middle of the sentence and is justified as making the answer more complete. See id. While finishing a thought is not necessarily a proper justification for an errata modification, here it appears to be justified and within the flexible scope of the Third Circuit's approach to Rule 30(e)")Grey v. Amex Assurance Company, 2002 WL 31242195, No. B152467 (Ct. App. Calif. Oct. 7, 2002) (reversing summary judgment in part because trial court abused discretion in failing to consider errata sheet containing “changes. . . made because the witness was interrupted before completing her answers;” further noting that the defendant “. . .took the risk that [the plaintiff’s] corrections would bring some of its undisputed facts into controversy”)Arce v. Chicago Transit Authority, 311 F.R.D. 504, 512 (N.D. Ill. 2015) (denying, without prejudice, motion to strike errata sheet, as motion failed to specifically discuss many of the 67 changes defendant wanted stricken; noting that “The reason given for the vast majority of the 67 changes was that [Plaintiff] “did not finish” her answer during the deposition, though the transcript does not reflect that she was interrupted and prevented from doing so,” and outlining how various courts and commentators deal with the extent to which changes to testimony can be made on errata sheets)Arce v. Chicago Transit Authority, F.R.D. 504, 512, fn. 5 (N.D. Ill. 2015) (noting that, if one looks back at the early origins of the rule on errata sheets, quoted in this opinion, it may be argued that the intent of the drafters was indeed to limit changes to clerical-level mistakes, not to allow substantive changes): "One commentator who examined the history of the rule dating back to the original Equity Rule 67, and the twin Equity Rules 50 and 51 that succeeded it, concluded that Rule 30 was never intended to allow for more than the correction of transcription errors: "Appeals to the plain language of Rule 30(e) are incomplete and misleading without reference to the Rule's transcriptive focus. Read in historical context, the Rule appears to be distinctly clerical, ill-equipped—and never intended—to embrace substantive changes. Although its wording has changed over time, Rule 30(e) has retained one modest but steady focus: the who, how, and what of accurate transcription. The Rule is meant to secure an accurate representation of what was said, leaving to another day (and frequently to the mechanisms of Rule 56) the question of the meaning and implication of the deposition content for purposes of material factual disputes. The common understanding of Rule 30(e) has moved far afield from that mild ambition, giving us the confusion and circuit split we know today. Read in light of its history, the Rule clearly embraces a transcriptive focus. Ruehlmann, Jr., supra, at 915. Rule 30(e)’s counterpart in Illinois state court, Supreme Court Rule 207(a), was amended to limit corrections to transcription errors because the “potential for testimonial abuse” had “become increasingly evident as witnesses submit[ted] lengthy errata sheets in which their testimony [was] drastically altered....” Ill. Sup. Ct. R. 207(a), Rules Committee Comment to Paragraph (a) (1995)Arce v. Chicago Transit Authority, 311 F.R.D. 504, 511 (N.D. Ill. 2015) (citing Deposition Dilemmas: Vexatious Scheduling and Errata Sheets, 12 Geo. J. Legal Ethics 1, 60 (1998), for its author’s argument that Rule 30(e) permits “opposing counsel, at her choosing, to introduce both versions to the jury”)Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383 (7th Cir.2000) (observing, as to changes in errata sheet, that what the witness “tried to do, whether ...
