Errata, Errata, Errata. . . Turkey, Turkey, Turkey
My mom has awarded me the honor of sharing a recent Delaware Superior Court decision with you today. . . I like to think it’s an early birthday present as my birthday is tomorrow — Thanksgiving Day. So this will be my Birthday/Thanksgiving Day post for you all!
Anyway, this case pays tribute to my days back on the other side of the bench serving as a clerk to the President Judge herself who just just rendered this well-thought out decision on errata sheet corrections in depositions. No, this is not a workers’ comp case, but there is very little case law in Delaware analyzing and discussing this topic so I felt that I couldn’t let this one pass us by.
In Alberts v. All About Women, P.A., 2020 WL 6588643 (Del. Super. Ct. Nov. 10, 2020) (Jurden, P.J.), a medical malpractice action where the plaintiff sought to strike the errata sheet corrections submitted by her supervising doctor/owner of All About Women, arguing the doctor’s “desired corrections” significantly supplemented and altered her deposition testimony. The doctor, on the other hand, argued that the errata sheet “clarified” and corrected her deposition testimony, which was permitted under Rule 30(e).
The sequence of events are important here — Plaintiff produced her expert report; Plaintiff took defendant doctor’s deposition; Plaintiff’s expert supplemented her expert report relying on doctor’s testimony regarding post-op care; Defendant doctor submits errata corrections making significant changes to her deposition testimony. And, I mean significant changes — like multiple sentences added on to her answers.
In granting plaintiff’s motion to strike, President Judge Jurden thoroughly analyzes the purpose and intent of errata corrections and the effect on the discovery and litigation process if such corrections were to be accepted. In particular, she acknowledges the fact that while Rule 30(d) prohibits counsel from consulting or conferring with a deponent during the deposition, there is not such prohibition once the deposition is over. Thus, a deponent could use the errata sheet to circumvent the prohibition of the Rule and alter damaging testimony after she has consulted with counsel after the deposition is over. Yup, not in this Court.
My favorite quotes from the President Judge are:
An errata sheet is not a license to change answers for damage control, or to add things the deponent wishes she had said.
Dr. McCracken’s Errata changes are improper and beyond the scope of what is allowable under Rule 30(e) and must be stricken. Rule 30(e) cannot be interpreted to allow a deponent to rewrite their testimony in the manner and to the extent Dr. McCracken did here. To rule otherwise would be to turn depositions into practice quizzes and the errata sheets into group projects.
I hope you all have wonderful and safe Thanksgiving filled with lots of turkey! As for me (the only vegetarian in my family), I will be eating lots of birthday cake and watching my Auburn Tigers take on the Alabama Crimson Tide in the annual Iron Bowl.
Best,
Caroline Kaminski
