The Errata Sheet Two Days Late
Plaintiff deposed defendant's operations manager 41 days ago under Rule 30(b)(1). The court reporter delivered the transcript 32 days ago. Today the paralegal receives an errata sheet dated today in which the witness changes the key answer: 'I checked the log at 8:00 a.m.' becomes 'I did not personally check the log; my assistant did.' The errata gives no reason. Trial is in 33 days. Plaintiff's counsel says she will use the original answer and the change to impeach. Defense counsel says the errata is untimely and should be stricken. The paralegal must prepare a memo on whether the errata can be used, how the original answer may be used at trial, and what to file now.
1. Is the errata timely under Rule 30(e)? What is the effect of untimeliness?
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No. Rule 30(e) requires the witness to sign a statement of changes within 30 days after the reporter notifies the deponent that the transcript is available. The transcript was delivered 32 days ago, so the errata is two days late. An untimely errata may be stricken or disregarded, but the court has discretion, and the better practice is to object rather than assume exclusion. Even if timely, a Rule 30(e) change does not erase the original; it becomes part of the deposition, and the witness can be cross-examined on the change. Because the change is material and unexplained, the court may allow it but give plaintiff wide latitude to impeach.
2. How may plaintiff use the original answer and the errata at trial?
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Use the original answer as a prior inconsistent statement under FRE 801(d)(1)(A) if it was given under oath, or impeach under Rule 613. The errata itself is also usable: if the witness adopts the change at trial, confront him with the original and the absence of any explanation. If the court strikes the errata, the original stands, but plaintiff should not rely on that ruling alone. Prepare a short examination sequence: lock in the trial testimony, read the original question and answer, ask when he first remembered that the assistant checked the log, and ask why the errata gave no reason. Do not overuse the change; the goal is to create reasonable doubt about his credibility.
3. What should be filed before trial?
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File a notice of intent to use the deposition under Rule 32(a)(1)(A) and, if defense moves to strike the errata, a response arguing the original answer remains admissible regardless of the errata. Attach the transcript delivery date and the errata. If plaintiff wants to exclude the changed answer, file a motion in limine; if plaintiff wants to use it, preserve the objection and request a limiting instruction. Also notify the court of the dispute before trial so the judge can rule outside the jury's presence. Make sure the original transcript and delivery records are in the trial notebook.