Opinion
00 Civ. 4179 (LAK).
January 11, 2001.
ORDER
Plaintiff brought this action to seek relief for alleged discrimination and retaliation under the Family and Medical Leave Act. Following the completion of three depositions of employees of the defendant, transcripts were submitted to them for review. Each of the witnesses made substantive corrections to the transcripts on errata sheets. Plaintiff now seeks to suppress the corrections, arguing in substance that witnesses are not permitted to go beyond "correcting of typographical errors or mistakes in the transcription." Letter, A. Carabba to Court, Jan. 9, 2001, at 3 (quoting Calloway v. Marvel Entertainment Group, 110 F.R.D. 45, 52 (S.D.N.Y. 1986). Plaintiff, however, fundamentally misconceives the law.
To begin with, Rule 30(e) explicitly permits deposition witnesses to make substantive changes to the transcripts of their depositions. It provides that a witness, upon appropriate request, "shall have 30 days . . . in which to review the transcript . . . and, if there are changes in form or substance, to sign a statement reciting such changes and the reasons given by the deponent for making them." (Emphasis added) Indeed, any other rule would be entirely unworkable. Suppose a witness had committed perjury or simply made an honest though serious error in a deposition? If plaintiff were correct, the witness would be precluded from recanting the erroneous testimony. Moreover, plaintiff certainly does not, and could not reasonably, suggest that a witness would be precluded by his or her deposition testimony from giving different testimony at trial. So the principal effect of adopting plaintiff's view would be to disadvantage litigants by depriving them of early notice of corrections in deposition testimony.
Second, the case principally relied upon by plaintiff, Calloway, does not in fact stand for the proposition for which plaintiff cites it. Judge Sweet there suppressed the witnesses' corrections not because they were substantive, as plaintiff erroneously states, but because the corrections were not made within the 30 days permitted by Rule 30(e).
Plaintiff's application is denied.
SO ORDERED.