Deposition Errata Pages in Maryland

An excellent article by Brian A. Zemel, All Things Errata (americanbar.org)(ABA Apr. 19, 2022), addresses the scope of changes a deponent may make to an errata sheet. He explains:

If the deponent’s submission is procedurally valid, counsel should then determine whether the witness’s changes were substantive and whether the jurisdiction permits such changes. Some circuits have definitively ruled on the issue, but there are differences among jurisdictions on whether wholesale changes are allowed. Meanwhile, within undecided circuits, district courts have issued conflicting decisions.

Mr. Zemel notes that some courts view substantive changes similar to a “sham affidavit.”  He cites authority “that a deposition is not a ‘take-home exam’ that can be revised after the witness has testified.” [emphasis added].  Other courts note that Fed.R.Civ.P. 30(e) does not expressly limit the right to make substantive changes. Id.  The text of Rule 30(e)(1)(B) refers to “changes in form or substance….” Finally, Mr. Zemel cites authorities that take a middle-of-the-road approach and permit “contradictory changes if the court determines the deponent offered a sufficient justification for the revision.”

The District of Maryland has described and followed a “growing minority” rule regarding the scope of errata sheets:  “This district has distinguished between substantive changes that ‘correct misstatements or clarify existing answers’ and those that ‘materially change the answers or fully supplant them,’ permitting the former and barring the latter.”  Linderborn v. Armadillo Ventures, LLC,  2021 WL 322179, at *3 (D. Md. Feb. 1, 2021)(emphasis added).  As such, the District of Maryland has not joined the majority of courts that interpret the Rule to literally permit any timely, substantive change if a reason is given.  Brittney Gobble Photography, LLC v. Sinclair Broad. Grp., Inc.,  2020 WL 761174, at *4 (D. Md. Feb. 14, 2020).  Instead, the District of Maryland imposes limitations on the scope of substantive changes. Id.  “In recent decisions … this court [has] interpret[ed] the rule as foreclosing changes that materially alter the testimony or contradict the testimony.” Id. (citations and quotations omitted). The Court has described its position as a “growing minority.” Linderborn,  2021 WL 322179, at *3; Harden v. Wicomico Cty., 263 F.R.D. 304, 308 (D. Md. 2009). The Court has required that reasons for changes be provided.  Norris v. PNC Bank, N.A.,  2021 WL 6108368, at *3 (D. Md. Nov. 1, 2021)(“plaintiffs are directed to produce their reasons for each of the deposition transcript changes made in their errata sheets”).  The reasons cannot be conclusory. Harden v. Wicomico Cty., 263 F.R.D. 304, 307 (D. Md. 2009); see Rangarajan v. Johns Hopkins Univ., 917 F.3d 218, 222 (4th Cir. 2019) (51-page errata sheet).  The District of Maryland has long echoed the idea that a deposition is not a take-home exam. Wyeth v. Lupin Ltd., 252 F.R.D. 295, 296 (D. Md. 2008)(citation omitted). A party cannot “undo” testimony by adding errata. Id.

In the State courts, Maryland Rule 2-415(d) states:

[Caption of case]

NOTICE TO

[name of deponent]

The enclosed transcript of your deposition in the above-captioned case is submitted to you on [date of submission of the transcript to the deponent] for your signature and any corrections or other changes you wish to make. All corrections and other changes will become part of your sworn testimony.

After you have read the transcript, sign it and, if you are making changes, attach to the transcript a separate correction sheet stating the changes and the reason why each change is being made. Return the signed transcript and any correction sheet to [name and address of officer before whom the deposition was taken] no later than 30 days after the date stated above.

If you fail to return the signed transcript and any correction sheet within the time allowed, the transcript may be used as if signed by you. See Rules 2-415 and 2-501 of the Maryland Rules of Procedure.

Within 30 days after the date the officer mails or otherwise submits the transcript to the deponent, the deponent shall (1) sign the transcript and (2) note any changes to the form or substance of the testimony in the transcript on a separate correction sheet, stating the reason why each change is being made. The officer promptly shall serve a copy of the correction sheet on the parties and attach the correction sheet to the transcript. The changes contained on the correction sheet become part of the transcript. If the deponent does not timely sign the transcript, the officer shall sign the transcript, certifying the date that the transcript was submitted to the deponent with the notice required by this section and that the transcript was not signed and returned within the time allowed. The transcript may then be used as if signed by the deponent, unless the court finds, on a motion to suppress under section (k) of this Rule, that the reason for the failure to sign requires rejection of all or part of the transcript.

Cross reference: See Rule 2-501 (e)* for the consequences of filing an affidavit or other written statement under oath that contradicts deposition testimony that was not changed within the time allowed by this section. [emphasis added].

Mr. Zemel also writes that:

If counsel ultimately determines that a witness’s errata sheet contains substantive changes to a degree permissible under local law, he or she has the option to reopen the deposition at the expense of the party making the change and examine the witness to discover the reasons for and the source of the changes. Counsel’s communications with the deponent regarding the errata sheet changes are fair game. Courts reject attempts to use attorney-client privilege to shield testimony about whether the lawyer’s communications impacted the witness’s decision….

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*Md. Rule 2-501(e) permits a motion to strike a prior contradictory sworn statement.