Will I Be Allowed to Review Transcript of My Deposition

Excerpted from Handling Federal Discovery by William 1000. Audet and Kimberly A. Fanady

I.     WHY

A.    You may request that a deponent review the deposition transcript or recording, make any changes and sign a argument of the changes. FRCP thirty(e). A request for review is an "accented prerequisite" to degradation corrections. Hambleton Bros. Lumber Co. v. Balkin Enterprises, Inc., 397 F.3d 1217 (9th Cir. 2005).

1.   Review helps assure that a deponent's testimony is complete and accurate.

2.   Impeaching a witness with deposition testimony is more than effective when the witness has to admit that he reviewed the transcript and idea it was right. You lot besides defeat the witness'south claim that the transcript does not accurately reflect his testimony.

B.     Review is not required unless a deponent or party requests information technology. FRCP 30(e)(1); Holland v. Cedar Creek Mining, Inc., 198 F.R.D. 651, 48 Fed. Rules Serv. 3d 1142 (Due south.D. W. Va. 2001).  Conversely, corrections are not permitted unless review is requested. EBC, Inc. v. Clark Bldg. Systems, Inc., 618 F.3d 253 (3d Cir. 2010).

C.     FRCP xxx(due east) is not restricted to correcting stenographical errors. Encounter Unlimited Resources, Inc. v. Deployed Resources, LLC, 75 Fed. Rules Serv. 3d 938 (M.D. Fla. 2010) (courtroom permitted both substantive and corrective changes but imposed safeguards to prevent corruption, including reopening deposition on amended answers at deponent's expense and allowing both versions of transcript to be read at trial); Dering 5. Service Experts Alliance LLC, 69 Fed. Rules Serv. 3d 939 (N.D. Ga. 2007) (party permitted to make changes which expanded upon but did not contradict his deposition testimony; however, deponent added sufficient additional data to warrant reopening deposition).

II.    WHEN

A.    Request a review before the deposition is completed. FRCP 30(e)(1).

B.     The deponent has 30 days to review the transcript after the court reporter notifies him that the transcript is available. FRCP 30(eastward)(i); EBC, Inc. v. Clark Bldg. Systems, Inc., 618 F.3d 253 (3d Cir. 2010); Hambleton Bros. Lumber Co. v. Balkin Enterprises, Inc., 397 F. 3d 1217 (9th Cir. 2005) (30-day menstruation runs from court reporter's notice that transcript available, not from engagement deponent receives transcript).  Notice to the deponent'south attorney constitutes notice to the deponent and starts the running of the 30-solar day limit. Welsh five. R.W. Bradford Transp., 231 F.R.D. 297 (N.D. Ill. 2005). The deponent must transmit the changes to the court reporter and certify the changes within 30 days of the notification; preparation of an errata sail within 30 days does non satisfy the Rule. Id.

III.   HOW

A.    On the record at the degradation, asking that the witness review the transcript pursuant to FRCP 30(e)(1).

B.     Later the courtroom reporter notifies the witness the transcript is bachelor, under FRCP 30(e)(1) the witness has 30 days to:

1.   Review the transcript.

2.   Brand whatsoever changes in form or substance.

three.   Sign a statement listing the changes and the witness's reasons for making them. Encounter EBC, Inc. 5. Clark Bldg. Systems, Inc., 618 F.3d 253 (3d Cir. 2010) (statement of reasons required considering information technology enables court to assess whether changes are made for a legitimate purpose); Unlimited Resources, Inc. five. Deployed Resources, LLC, 75 Fed. Rules Serv. 3d 938 (M.D. Fla. 2010) (Dominion 30(due east) does non prescribe level of specificity required for changes; deponent's proffered reasons for changing transcript full general and weak, simply acceptable).

i.     Failing to provide reasons may void the changes and bind the witness to the original testimony. See EBC, Inc. v. Clark Bldg. Systems, Inc., 618 F.3d 253 (3d Cir. 2010); Hambleton Bros. Lumber Co. v. Balkin Enterprises, Inc., 397 F. 3d 1217 (9th Cir. 2005) (absence of argument of reasons indicated that corrections were purposeful rewrites fabricated to manufacture factual issues; corrections stricken); Desulma five. City of New York, l Fed. R. Serv. 3d 865 (S.D.Northward.Y. 2001) (changes not permitted when plaintiff submitted changes without required Dominion 30(e) explanation); The netherlands 5. Cedar Creek Mining, Inc., 198 F.R.D. 651, 48 Fed. Rules Serv. 3d 1142 (S.D. W. Va. 2001) (motion to exclude changes in degradation testimony granted where witness failed to provide specific reasons for changes).

ii.    Both the original and the changed answers remain part of the record generated during discovery. See PThorn v. Sundstrand Aerospace Corp., 207 F.3d 383 (7th Cir. 2000) (both versions retained so trier of fact can evaluate honesty of amending); Unlimited Resource, Inc. five. Deployed Resources, LLC, 75 Fed. Rules Serv. 3d 938 (Yard.D. Fla. 2010) (court permitted both substantive and corrective changes, but imposed safeguards to prevent corruption, including allowing both versions of transcript to exist read at trial).

C.     The courtroom reporter attaches the changes to the transcript. FRCP 30(east)(ii). If the witness fails to review the transcript or fails to sign the statement of changes, the court reporter notes that no changes were made. FRCP 30(east)(two).

IV.   Practise NOTES

A.    You may not want to request review and signature if you think the witness misstated something and you desire to try to nail him with information technology at trial rather than requite him a chance to prepare it on review.

B.     Develop a standard time during a deposition to request a review, such every bit during the admonitions or as your terminal statement earlier concluding your test, and then you will not forget.

C.     If you represent the deponent, practise non review and right the transcript on the deponent'southward behalf. The court may consider this fraudulent and dismiss your customer's claims or defenses. Come across Combs v. Rockwell Int'50 Corp., 927 F.2d 486 (9th Cir. 1991).

D.    During your standard time to request a review, also request that any exhibits used at the deposition be annexed to the official transcript. FRCP 30(f)(2).

East.     Rule 30(b)(5) requires the court reporter to certify that the witness was sworn and that the testimony prepare along in the transcript is complete and accurate. If the required certification is missing, the transcript may be unusable. See Xiangyuan Zhu v. Countrywide Realty Co., 165 F. Supp. 2d 1181 (D. Kan. 2001). When you receive the transcript, be sure the certification is included.

F.     Each political party is responsible for ordering and paying for his ain re-create of the deposition transcript. A deponent may not object to the use of his degradation testimony on the grounds that a political party did non provide him with the transcript. Brant v. Principal Life & Disability Ins. Co., 195 F. Supp. 2nd 1100 (N.D. Iowa 2002).

Nigh the Authors

William G. Audet is the founding partner of the nationally known police force firm of Audet & Partners, LLP. Mr. Audet has prosecuted form activeness and individual cases involving securities, production liability, fraud, consumer and limited partnership claims. He has won multi-million-dollar settlements on behalf of plaintiffs and has successfully tried civil rights cases in federal court.

Mr. Audet is a member of the California and Wisconsin bars and is admitted to practice before numerous federal district courts throughout the United States and the Ninth Circuit Courtroom of Appeals. Mr. Audet is a frequent contributor to the San Francisco bay area legal press. He tin can be reached at Audet & Partners, LLP., 221 Main Street, Suite 1460, San Francisco, California 94105, telephone: (415) 982-1776, fax: (415) 568-2556, e-post: [electronic mail protected], website: http://www.audetlaw.com.

Kimberly A. Fanady is a sole practitioner in San Francisco. Her commercial litigation practice includes representing major fiscal institutions and other corporate clients in federal and state trial and appellate courts in the areas of contract and commercial disputes, lender liability, creditors' remedies, consumer course deportment involving unfair business practices, consumer credit reporting, automobile sales and financing, securities fraud, employment discrimination, wrongful termination, construction law, and workout/settlement negotiation and documentation.

Prior to opening her solo exercise in May 1996, Ms. Fanady practiced with Buchalter, Nemer, Fields & Younger in San Francisco from 1989 to 1996 and with Cadwalader, Wickersham & Taft in New York Urban center from 1986 to 1989. She is a member of the California and New York bars and diverse federal courts in California and New York.

She can be reached at the Law Offices of Kimberly A. Fanady, 55 New Montgomery St., Suite 618 San Francisco, California 94105, (415) 986-8467.

Handling Federal Discovery brings you 108 essential chore outlines, each explaining "why," "when," and "how" to accomplish the task, annotated with 50 forms, hundreds of cases, and dozens of tips.

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