Errata sheet warrants enlarged deposition

Where plaintiff filed an errata sheet with 72 changes following her deposition, defendants are entitled to a limited deposition to “probe changes in her testimony.”

Background

Lohman, representing her mother’s estate, sued doctors and medical entities for medical malpractice. Lohman alleges defendants did not tell her mother about a cancerous mass on her lung. She alleges that her mother “would have received curative cancer treatment had she known of the mass.”

Lohman was deposed. About a month later, she submitted an errata sheet containing 72 changes or corrections. She identified each by transcript page and line, noted her change or correction and offered a reason. The reasons included clarification, faulty memory, misunderstanding the question and confusion.

Several defendants, in response to the errata sheet, moved to depose Lohman again. They argue that her changes are substantial in many instances and they need to ask more questions. Lohman objects, noting the court rules specifically allow errata sheets and no rule permits a party to reopen a deposition based on them.

She also “asserts the 72 changes overstate the scope of the alterations. Lohman argues most of the changes were very minor and noncontroversial. She claims her other changes were adequately explained in her errata sheet.”

Analysis

The court rules “are silent” about available relief when a deponent makes changes under Va. R. Sup.Ct. 4:5(e). The rules permit a court to limit discovery. “The present case concerns the power of a court to expand, redo, or re-open a deposition. On this point, the rules are silent as to the power of the court.”

However, after reviewing “the evolution of Virginia deposition law, … one can read Rule 4:5(b)(3) … as giving the Court license to grant leave to re-depose a previously deposed party. That part of Rule 4:5 reads ‘The court may for cause shown enlarge or shorten the time for taking the deposition.’ …

“The Court holds this subpart means, inter alia, the Court can permit [the moving defendants] to enlarge their deposition of Lohman by asking her more questions related to her errata changes. …

“Here, Lohman’s errata sheet contained material changes to her deposition testimony. For  example, there are many instances of changed testimony from ‘no’ to ‘yes,’ or ‘no’ to ‘I don’t remember.’  A court must exercise restraint when considering the authorization of a Rule  4:5(b)(3) enlarged deposition. It must consider the limiting factors of the rules. …

“Having considered those factors, the Court concludes the [moving defendants] may enlarge  the deposition of Lohman, limited to the changes on her errata sheet. Reopening the deposition  generally would violate the spirit of Rule 4:1 and would invite duplicative questions.”

The moving defendants “list seven categories of issues they want to probe, which seem reasonable fodder for  further inquiry. The Court grants leave to ask questions on the seven categories of issues in a re-opened and enlarged deposition.”

Lohman v. Reston Hospital, et al., Case No. CL-2017-14850, Sept. 29, 2020; Fairfax Cir. Ct. (Oblon). Steven M. Garver, Deborah E. Mayer, Matthew D. Banks, Susan L. Mitchell for the parties. VLW 020-8-106, 8 pp.