At the end of a deposition, pursuant to Washington Civil Rule 30(e), the court reporter typically asks the deponent’s attorney whether she would like to “reserve signature,” i.e., for the deponent to await her review of the transcript before she attests to its accuracy. Most attorneys view this as the right of deponent and, as a matter of course, almost always reserve the deponent’s signature. They then work with their clients to conduct a careful review of the transcript and submit an errata sheet listing any errors that the deponent has identified.
Transcripts may contain substantive errors that should be corrected immediately. If the fundamental meaning of any testimony is inaccurate, it is incumbent on the witness to make her testimony accurate and truthful. In many instances, however, the changes listed in the errata sheet are minor and inconsequential to the overall testimony—a misspelled name here, a corrected homophone there. In this circumstance, the submission of the errata doesn’t really serve to benefit the deponent—it doesn’t correct the substantive record in any way. This therefore begs the question: should it be done?
If the deponent does not sign the transcript within 30 days, the court reporter will merely state on the record that signature was “waived.” The deposition may then be used as if it were signed. If, however, the witness reviews and signs the transcript and submits an errata, the effect of her signature will in essence also serve as a verification of the unaltered portions of the transcript—i.e. the deponent will have expressly acknowledged that everything else is correct. By submitting the errata and signing the transcript, the deponent thereby might create a more valuable impeachment tool—if she makes a statement at trial that contradicts her deposition testimony, opposing counsel will be able to point out that she not only made a prior inconsistent statement but also thereafter combed through the transcript so carefully as to find minor typos and misspellings, yet still verified that the original testimony was true and correct.
For the same reason, the party taking the deposition might want to assert that the deponent is obliged to sign the transcript, and demand that the deponent do so. Rule 30(e) provides that “[t]he deposition shall… be signed by the witness, unless the parties by stipulation waive the signing or the witness is ill or cannot be found or refuses to sign.” By failing to request signature, the party taking the deposition arguably waives its rights under the rule and potentially weakens the value of the transcript as an impeachment tool: at trial, the attorney cross examining the witness will be unable to emphasize contradictory testimony by pointing out that the witness has previously reviewed the transcript for accuracy. This tactic could be particularly salient in the context of remote depositions, where a witness’s confusion over questions may be more understandable and palatable to a jury, who have likely experienced their own miscommunications over Zoom during the COVID era. Pointing to an express review of the transcript might undermine any such claims.
In all cases, it makes sense for at least counsel to review the transcript, in case there are material substantive errors that could be problematic. But where a transcript does not require any significant corrections, it could be in the deponent’s best interest not to submit an errata sheet and instead to allow the 30-day period to lapse. And by the same token, a party taking a deposition should consider whether to follow up and request verification—if the deponent refuses, this would allow cross-examining counsel to note the witness explicitly refused to review the transcript; otherwise, the transcript might prove to be less useful in cross-examination at trial.
Editors Note: This post was originally published on July 18th, 2014 and was updated on March 30th, 2023.
Michael Chait
Mike has extensive experience in litigating high-conflict disputes and delivering creative legal solutions. Mike’s clients rely on his focus on their specific business needs and goals to navigate all phases of litigation in federal and state courts, as well as in alternative dispute resolution proceedings. Mike also has a wealth of experience advising businesses on transactions, regulatory compliance, and commercial matters.