Distinctions in Federal and NYS Deposition Practice – Part One

The rules and law governing the review and execution of errata sheets and the scope of permissible corrections differs between Federal and New York State practice (and as between our own Departments).  These distinctions will be discussed in a short series of blog articles.

In this post, I am going to discuss the distinctions applicable to the review of a transcript by a witness.

Are You Obligated To Allow The Witness To Review The Transcript?

As a preliminary matter, under CPLR 3116 it is mandatory that the transcript be provided to the witness for review and correction.  Should the witness fail to sign the transcript before a notary and return the deposition transcript within sixty days, it may be used as though signed[1].  The witness may not make changes more the sixty days after submission of the transcript to the witness for examination.

The witness need not demand to inspect the transcript.  Should the deposing party fail to comply with CPLR 3116(a), it may be precluded from using the transcript pursuant to CPLR 3117See, e.g., Ramirez v. Willow Ridge Country Club, Inc., 84 A.D.3d 452 (1st Dept. 2011); Santos v. Intown Assoc., 17 A.D.3d 564 (2d Dept. 2005); Lalle v. Abe, 234 A.D.2d 346 (2d Dept. 1996).

The depositing party has the burden of establishing compliance with CPLR 3116(a) if they intend to offer the transcript.  See, e.g., Pina v. Flik Intl. Corp., 25 A.D.3d 772, 772 (2d Dept. 2006).

The First Department in Zamir v. Hilton Hotels, Inc., 304 A.D.2d 493, 758 N.Y.S.2d 645 (1st Dept. 2003), discussed the reason for the sixty-day requirement:

As further noted in the Practice Commentary, “[a]ccording to the Advisory Committee, the statutory purpose of imposing the 60-day restriction in the first place is to enable other parties, including the party who took the deposition, ‘to rely upon the deposition as final,’ an aim that would be frustrated by ‘[l]ast-minute changes.'” (citation omitted) We agree that courts should be circumspect about extending the 60-day period inasmuch as “[a]n indication from the courts that an extension will be allowed without a strong showing of justification will quickly evolve a dilatory attitude that can undermine the purpose of CPLR 3116(a)’s time limit altogether” (citations omitted).

The Zamir Court noted that an extension of the sixty-day period would require a showing of good cause, which plaintiff failed to provide:

the 60-day period, not being a rigid statute of limitations, is presumably extendable pursuant to CPLR 2004 (citations omitted). Nevertheless, CPLR 2004, while giving courts discretion to extend nearly all time limits in the CPLR for doing “any act,” nevertheless premises such relief upon a showing of good cause.

In contrast to CPLR 3116(a), under Rule 30(e) of the Federal Rules of Civil Procedure, only upon request of the witness or a party before the deposition is completed must the witness be allowed 30 days in which to review the transcript and sign a statement reflecting changes the witness wishes to make[2].

“As a threshold, Rule 30(e)(1) requires the party or deponent to request review of the deposition before the deposition itself is completed.” EBC, Inc. v. Clark Bldg. Systems, Inc., 618 F.3d 253, 265 (3d Cir. 2010). If the deponent does not timely request the opportunity to “read and sign” then the opportunity to make changes is waived. see Judge v. New York City Police Department, No. 10 Civ. 4236, 2012 WL 98509, at *4 (S.D.N.Y. Jan. 12, 2012) (plaintiff precluded from making changes to deposition transcript because he failed to request review of transcript).

“Numerous courts have rejected changes to depositions when the procedural requirements of Rule 30(e) were not met.” Winston v. Marriott International, Inc., No. 03 CV 6321, 2006 WL 1229111, at *6 (E.D.N.Y. May 8, 2006) (excluding disputed errata sheet as untimely); see EBC, Inc., 618 F.3d at 265 (“The procedural requirements of Rule 30(e) are clear and mandatory.”); Agrizap, Inc. v. Woodstream Corp., 232 F.R.D. 491, 493 (E.D.PA. 2006) (“[T]here is no debate that the procedural requirements of Rule 30(e) must be adhered to.” (internal footnote omitted)).

In short, while it is common practice to send a transcript for review in cases pending in federal court, there is no obligation to do so.  A calculating adversary may take advantage of a failure to demand to review the transcript on behalf of the witness and withhold the transcript.  Many practitioners are unaware of the obligation imposed under Rule 30(e)(1) or the consequences of the failure to request a review.

The mindful practitioner should exercise caution in this regard.

Next month I will address the scope of permissible changes that a witness may make to a transcript in the errata sheet.

– David Blansky

[1] The failure to sign within the required period means that the deposition “may be used as fully as though signed.” See, e.g., Thompson v. Hamptons Express, 208 A.D.2d 824 (2d Dept. 1994).

[2] In re Weatherford Int’l Sec. Litig., 2013 U.S. Dist. LEXIS 120321 (S.D.N.Y. Aug. 23, 2013) addressed the question of what happens when multiple witnesses or designated by a 30(b)(6) witness and only some of the deponents request the opportunity to review the transcript.  The court concluded a 30(b)(6) deposition, even of multiple designees, is one deposition and only one designee need invoke Rule 30(e)(1) for it to apply to all designees. “[R]egardless of the number of witnesses that Weatherford designated, the deponent remains Weatherford, and the depositions of the four Rule 30(b)(6) designees should be treated as that of a single deponent for purposes of Rule 30(e).”

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