Did I say, "No"? Meant to say, "Yes." What Changes are OK to a Deposition Transcript?

Mag. Judge Arthur J. Boylan (D. Minn.) ruled on Friday (1/15/10) on a discovery dispute in ADT Security Services v. Selige Swenson, et al., Civil File No. 07-cv-2983 (JRT/AJB), that ADT could amend deposition testimony — not to change “Laurence” to “Lawrence,” or some other minor correction but, rather, to reverse testimony completely.

The case involves a tragic murder in a residence, notwithstanding the ADT security system that the home had been outfitted with.  An ADT witness testified to having visited the residence after the murders, testified that he wrote a “service ticket,” but then sought to later change his testimony to deny having done so (after the 30 days allowed under the rules for changes to deposition transcripts, incidentally).

The Court discussed the issue at some length, citing Macchiaroli & Tarin, Rewriting the Record: A Federal Court Split on the Scope of Permissible Changes to a Deposition Transcript, 3 Fed. Cts. L. Rev. 1 (2009).  Recognizing that courts had split on the issue, both sides having merit in their arguments, Judge Boylan sided with those courts who allowed broader changes to deposition transcripts.

Opinion after the break.  (Also discussed: challenges to a privilege log, the privilege (or lack of privilege) applied to lawyer-drafted “talking points,” and a party’s relentless assertions of spoliation which appear to have been a bit too repetitive from the Court’s perspective.)
ADT v Seliger 1_15_09