Pretrial Discovery: Defending and Opposing False Testimony, Errata Sheets, Sham Affidavits; Reopening Depositions

When a client has made errors at deposition, deponent's counsel faces ethical and tactical decisions pitting his/her role as a zealous advocate against the attorney-client privilege and duty of candor to the court. This dilemma arises both when the client refuses to correct an untrue statement as well as when the client wants to change damaging testimony. If the time to make changes has expired, then the client may wish to contradict that testimony in an affidavit.

Counsel receiving errata sheets with sweeping substantive changes or affidavits in opposition to summary judgment that contradict early testimony are understandably dismayed and annoyed at having to waste time and money opposing them with motions to strike or reopening depositions.

But sworn testimony--whether deposition, errata sheets, or affidavits--does not disappear if later denied or contradicted. All are part of the record and courts have developed rules for dealing with these clarifications and corrections, including the "sham affidavit" rule and the "sham corrections" rule.

These rules, however, are more nuanced than they may appear. What may be perceived as treachery to the deposition-taker may, to the deponent's lawyer, be the best way to meet ethical obligations.

Listen as this experienced panel discusses the options for counsel when a client has provided untrue statements, of opposing counsel confronted with contradictory testimony and retractions, and current trends in federal and state courts on errata sheets and sham affidavits.