This article has been republished from the Boston Bar Journal. Click here to read the full article.
By David S. Clancy, Skadden, Arps, Slate, Meagher & Flom LLP
Imagine you depose an adverse witness who answers a key question with a categorical “Yes.” This is an important admission, and you’re pleased -- until an errata sheet arrives changing that answer to “No.” Can an errata sheet really change “Yes” to “No”? In Smaland Beach Association, Inc. v. Genova, 461 Mass. 214 (2012), the Supreme Judicial Court addressed that question for the first time, and the answer is … “Maybe.”
The propriety of a substantive change to sworn deposition testimony, holds the SJC, depends on the circumstances. In elaborating on that point, the SJC provides detailed — and cautionary — guidance on the proper use of deposition errata sheets, an important day-to-day practical issue that had previously been unsettled in Massachusetts state court.
Smaland was a contentious real-estate dispute. Smaland Beach Association, in Plymouth, sued its own members Arthur and Patricia Genova, who owned adjoining property, for encroachment and trespass, and the Genovas responded with various claims against Smaland, its officers and directors, and another local property-owner. Various individuals associated with Smaland were deposed. Evidently dissatisfied with their own sworn testimony, they made aggressive changes to it with a sheaf of errata sheets. “At various points in these errata sheets,” states the SJC, “the deponents wholly reversed their testimony from an affirmative to a negative response, or vice versa, struck existing testimony and replaced it with a different narrative, or added explanatory text to existing deposition testimony.”
An eyebrow-raising footnote 5 to the decision gives specific examples. “I’d say no” was changed to “I’d say yes.” “I don’t believe” was changed to “I believe.” Testimony about the Genovas cutting down a tree was changed from “I knew [the tree] was blocking” to “I knew [the Genovas] claimed it was blocking.” Another witness struck seven lines of testimony about an affidavit she signed at her counsel’s office and replaced it with “four paragraphs of testimony emphasizing her [own] role” in composing the affidavit. The errata sheets euphemistically described these changes as “clarifications.”
Smaland’s attorney was heavily involved in the preparation of these errata sheets, and the Genovas’ counsel argued that he had thereby made himself a witness at trial. On that basis, and because of an advice-of-counsel defense, the Superior Court judge disqualified him. “I’ve never seen errata sheets of that nature in my legal career,” the judge stated at the hearing. “They essentially totally changed the deposition testimony. Not to allow [the Genova’s counsel] to call him as a witness would be prejudicial…”
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