Deposition Not A “Take Home Examination”
By Todd McMurtry | email@example.com
In E.E.O.C. v. Skanska USA Building, Inc., the U.S. District Court for the Western District of Tennessee examined if and when a person can change her deposition testimony through use of an errata sheet. 278 F.R.D. 407 (W.D.Tenn 2012). The facts at issue are simple. Lynn D. Shavelson was Skanska’s Ethics and Compliance Officer. During her deposition she was asked if on August 19 Skanska management was aware that an incident involving throwing urine on another was race related. She answered, “Yes.” Next, the E.E.O.C. asked if Skanska was aware that the incident was race related when its management team went to investigate it. Again, she answered, “Yes.”
Upon conclusion of her deposition, Shavelson reserved her right to review her deposition. After review, she changed the answers to the two questions above from “Yes” to “No.” She then tendered a written explanation for why her oral answers had been wrong. Later upon motions for summary judgment, Skanska’s lawyers argued that Shavelson’s testimony was different than the oral testimony given during her deposition. The E.E.O.C. then moved to have the trial court declare that Shavelson could not change her oral testimony through use of an errata sheet.
Fed.R.Civ.P. 30(e) governs a deponent’s right to review and make changes to a deposition transcript. The Court noted that the Sixth Circuit permits a deponent to correct only typographic and transcription errors. Id. at *410. (Citing Devon Energy Corp. v. Westacott, No. H-09-1689, 2011 WL 1157334, at *4-6 (S.D.Tex. Mar. 24 2011)). Citing to Greenway v. International Paper Co. 144 F.R.D. 322, 325(W.D.La. 1992), the Court quoted:
The rule cannot be interpreted to allow one to alter what was said under oath. If that were the case, one could merely answer the questions with no thought at all then return home and plan artful responses. Depositions differ from interrogatories in that regard. A deposition is not a take home examination.
Id. at *411.
In conclusion, the Court held that although Shavelson could not change her oral deposition testimony through use of an errata sheet, she could submit an affidavit that differed from her testimony. That affidavit, however, would be subject to analysis as a sham affidavit.
Todd McMurtry is a Northern Kentucky attorney practicing at Dressman Benzinger LaVelle psc.