Chancery Issues Rare Ruling on Disputed Errata Sheets
In re TPC Group Inc. Shareholders Litigation, C.A. No. 7865 -VCN (Del Ch Apr. 10, 2014).
Why This Ruling Is Blogworthy: This is a rare ruling in which the court addresses whether changes to a deposition transcript in an “errata sheet” should be allowed to modify the “official” final version of a transcript of a deposition. This is noteworthy because it remains exceedingly rare, at least in Delaware, for a court to opine on this detail of pre-trial proceedings. Errata sheets in general do not receive much attention and attempts to challenge efforts of a deponent to change the substance of her deposition testimony in this “somewhat administrative manner” are not often resolved in written opinions.
I’m aware of some experienced trial lawyers who do not insist on their clients filling out the errata sheet at all, which most rules of civil procedure require to be done within 30 days if any corrections to the transcript are to be made. That school of thought subscribes to the view that any changes between the deposition testimony and the trial testimony can be the focus of either cross examination or explanation on direct examination.
This decision may give some support to that school of thought because for the reasons explained by the court, the challenge to the arguably substantive changes in the errata sheet in this case was rebuffed by the court.
Useful Nuggets from Ruling: The court’s reasoning was based in part on whether the “sham affidavit doctrine” applied. (Seefootnotes 14 and 15 for definition.) Although the court refused to strike the errata sheet to the extent it changed the testimony of the deponent, footnote 18 provides a useful reference to one case in which an errata sheet was stricken.
See generally Court of Chancery Rule 30(e), which the court described as “anticipating errata sheets”. Procedurally, the plaintiffs in this stockholder class action sought to strike an entry in the errata sheet. Without the revision pursuant to the errata sheet, plaintiffs argued that the deposition would be at odds with a prior affidavit of the deponent.