REWRITING THE RECORD:
A FEDERAL COURT SPLIT ON THE SCOPE OF PERMISSIBLE CHANGES TO A DEPOSITION TRANSCRIPT

By Christopher Macchiaroli and Danielle Tarin*

From the Introduction

In a deposition—as opposed to a cross-examination at trial—testimony is elicited prior to all the facts being known and prior to opposing counsel having an opportunity to fully prepare a witness’s testimony. In many instances, the attorney taking a deposition will seek to obtain straight forward admissions that can later form the basis of a motion for summary judgment. Even when conducting a deposition to discover facts, a skilled attorney will be cognizant of what will support or defeat summary judgment. A practitioner’s early focus on summary judgment cannot be overestimated. Summary judgment is an opportunity for courts to reduce overcrowded dockets and spare limited judicial resources. Under these circumstances, a deponent’s ability to correct a damaging statement can be frustrating to the attorney who obtained the admission.

Rule 30 of the Federal Rules of Civil Procedure prescribes the manner in which depositions are conducted in federal court. Rule 30 provides the circumstances in which a deposition may be taken, the necessary notice required to be given to a deponent, and the appropriate duration of a deposition.

This article examines the legal reasoning and analysis of both the majority and minority
views and highlights factors that should be considered by the Rules Committee. To promote uniformity among the courts and to provide litigants with certain expectations on how their litigation will proceed, this article recommends that Rule 30(e) be amended.

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* Christopher Macchiaroli and Danielle Tarin are associates with White & Case LLP.

Table of Contents

INTRODUCTION

I. INTERPRETATIONS OF FEDERAL RULE OF CIVIL PROCEDURE 30(E)

A. Permitting Only Transcription Changes

B. Permitting Substantive Changes That Clarify and Explain a Deponent’s
Answers

C. Permitting All Types of Changes

II. CRITICISMS OF THE MAJORITY VIEW

A. Contemporaneousness Lessens the Likelihood of Conscious Misrepresentation

B. Undue Influence by Counsel

III. CRITICISMS OF THE MINORITY VIEW

A. Transcript Errors Must Be Resolved Before Summary Judgment

B. Adequate Remedies Exist to Prevent Abuse of Rule 30(e)

C. The Plain Language of Rule 30(e) Permits Changes in Form or Substance

CONCLUSION

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