October 2010 Archives

October 12, 2010

It's Now Tougher To Change Deposition Testimony in Pennsylvania, New Jersey and Delaware

Mistakes made during deposition testimony by corporate officers recently became harder to correct in the Third Circuit (the 3rd Circuit covers federal courts in Pennsylvania, New Jersey, Delaware & the Virgin Islands). In the past, attorneys often had their clients complete errata sheets after a deposition to correct harmful testimony. However, in EBC, Inc. v. Clark Bldg. Systems, Inc., the Third Circuit stated that use of errata sheets pursuant to Federal Rule of Procedure 30(e) to create issues of fact to defeat summary judgment motions will be disregarded in most circumstances. The limited exception to this rule is where sufficient justification exists for changing the deposition testimony that exists on the deposition record itself. The Court noted that errata sheets used to create genuine issues of fact are fundamentally indistinguishable from self serving affidavits.

The practical impact of this cautionary footnote is that more time must be given to preparing the witness for what questions might be asked during her deposition. Perhaps just as important is to take the time to impress upon your witness the inherent dangers in the deposition process itself. If not properly prepared, your witness may destroy your case without realizing it.

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