Abby Grossberg, the Fox News producer who was fired after filing a law suit against the network alleges that the Fox legal team coerced her into giving misleading answers during her deposition and not providing her with the deposition to review and correct. If true, it provides lessons on how not to behave when preparing a deponent and that the deponent should be given an opportunity to review and correct the deposition.
Doing It Right
The following is an excerpt from Pretrial Advocacy, 6th edition describes what should happen after the deposition is taken:
“After the deposing officer (reporter) who took the deposition delivers the transcript or recording to the attorney who defended the deposition, the deponent has the next 30 days to review the transcript, correct it, and sign it. Fed. R. Civ. P. 30(e). Under Rule 30(e)(1), the deponent is not limited to correcting mistakes in form made by the transcriber and can make changes in substance, too. The Rule requires that the changes be listed and be accompanied by reasons for the changes. In the absence of a reason, opposing counsel could move to strike the correction.
“Ordinarily, when the defending lawyer receives the transcript, the lawyer will have the deponent review it either on her own, making notes as she goes, or with the lawyer. Then, the lawyer and deponent complete an errata sheet listing the corrections as well as the reasons for them.
“An example of a correction on the errata sheet of a transcriber error might read: Page 37, l. 5 ‘I have an idea when my secretary received the memorandum. You’d have to ask her.’ should read ‘I have no idea when my secretary received the memorandum. You’d have to ask her.’
“An example of a correction as to substance on the errata sheet might read: Page 37, l. 5 “I have an idea when my secretary received the memorandum. You’d have to ask her.” should read “It arrived June 5.” Reason: The deponent was mistaken and recalls that his secretary received the memorandum on June 5.
“The errata sheet is returned to the deposing officer, who attaches it to the officer’s certificate that the witness was duly sworn and that the deposition accurately records the deposition testimony. The officer packages the deposition, labels and seals it, and sends it to the attorney who ordered the transcript.
“When changes are made, it is as though defending counsel had examined the witness. Changes may cause the lawyer who originally ordered the deposition to seek a court order to allow further examination on the changed matter. At trial, the deposing attorney can utilize the uncorrected transcript, and the defending attorney can offer into evidence the correction under the rule of completeness. Fed. R. Evid. 106.”
Doing It Wrong
According to Abby Grossberg’s account, the Fox lawyers botched it. They didn’t provide the deposition, which would have allowed her to change what she said during her deposition. According to news reports, Grossberg later did fill out the errata sheet with the answers that she says were the correct answers to her questions and explained how she was coached into giving inaccurate responses.
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