A recent Delaware Court of Chancery opinion has practical application for anyone involved in depositions as part of their litigation practice. The issue in the case styled Mediacom Delaware LLC v. Sea Colony Recreational Association, Inc., C.A. No. 2018-0003-JRS (Del. Ch. Mar. 13, 2018), was whether a substantive change in a deposition can be made by means of the Errata Sheet submitted by the deponent after the deposition. Relying on both case law and treatises, the court denied a motion to strike the Errata Sheet of a Rule 30(b)(6) witness. A prior Chancery decision in a different case several years ago, highlighted on these pages, reached a similar result.
The court also relied in part on the wording of Rule 30(e) that expressly allows changes, such as those made via an Errata Sheet, “in form or substance” which the witness desires to make . . .. The court did not regard this issue, based on the facts of this case, as encompassed by the so-called “sham affidavit” doctrine.
The court explained that it has the discretion to strike an Errata Sheet that contains substantive changes to deposition testimony, but based on the circumstances of this case, the court did not view that as necessary in light of the opportunity during an upcoming evidentiary hearing on a motion for preliminary injunction to allow cross-examination of the witness. The court expressly clarified that it was not opining on, and did not want its decision to be interpreted to be a commentary on, the impact of the Errata Sheet on the credibility of the witness–and the court left open the possibility of revisiting its ruling in the event that the deponent was not made available for cross-examination at the upcoming hearing.
This short letter decision should be in the toolbox of every litigator because of its practical application. I know some experienced litigators who pay no attention to the Errata Sheet and do not feel that it is necessary to correct any errors in the deposition transcript–and instead wait for trial to make any corrections. The letter ruling in this case may be viewed, however, as a factually-based decision not generally applicable in all situations.