Waiving Signature: Whose Right is It Anyway?

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 on the deposition until the deponent is able to review the transcript and make appropriate corrections.  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.

In some instances, a transcript may contain a substantive error that should be corrected immediately.  In most instances, however, the changes listed in the errata sheet are minor—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 creates 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 verified that it was correct.

For the same reason, the party taking the deposition may want to request that the deponent sign the transcript. Rule 34(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.

In all cases, it makes sense for at least counsel to review the transcript, just in case there are significant errors that would be problematic if used to support a summary judgment motion or as part of a party’s case-in-chief.  But where a transcript does not require any significant corrections, it may 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; otherwise, the transcript may prove to be less useful in cross-examination at trial.

–Caitlin Hawks

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