“A DEPOSITION IS NOT A TAKE HOME EXAMINATION”
February 22, 2011 § Leave a comment
Has this ever happened to you? You suffer through a stupefying day of depositions of the opposing party and his witnesses, and you receive the signed, sworn copies, only to discover that the witnesses have used the errata sheets to rewrite their testimony. The points you thought you had conclusively nailed down are now unnailed.
In the recent case of Hyundai Motor America v. Applewhite, the supreme court ruled that defendants were entitled to a new trial because plaintiffs’ expert had used the errata sheet to revise the formulas he had relied on to make the calculations upon which his opinion was based in the deposition. Defendants argued that they had never received the errata sheet, and that they were surprised by the changed testimony at trial. The supreme court opinion stated at ¶ 34:
“The trial judge did not make a factual finding as to when Hyundai became aware of the contents of Webb’s errata sheet, but such a finding is unnecessary and irrelevant to our analysis. Even if Hyundai did receive the errata sheet, simply giving the defendant this document did not relieve the plaintiffs of their duties under Mississippi Rule of Civil Procedure 26(f). The purpose of an errata sheet is to correct scrivener’s errors or provide minor clarification; it is not a means of making material, substantive changes to a witness’s testimony. See e.g., Garcia v. Pueblo Country Club, 399 F.3d 1233, 1242 n.5 (10th Cir. 2002) (“A deposition is not a take home examination.”) If a witness changes his testimony in a manner that conflicts with prior discovery responses, the sponsoring party has a duty under Rule 26(f) seasonably and formally to amend or supplement the response. Choctaw Maid Farms, Inc. v. Hailey, 822 So. 2d 911, 916 (Miss. 2002). This is the responsibility of the party or parties sponsoring the witness, not the responsibility of the witness.”
This decision is a welcome clarification. It’s frustrating when you think you have covered all the bases in your depositions only to find that you are back at the beginning. This decision removes an element of gamesmanship from discovery.