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It happens all the time in employment law cases. An employee meets with an attorney to go over the facts of the case. The attorney listens and responds that the facts make great claim. After the lawsuit is filed and some documents are exchanged, the employer’s attorney notices the deposition of the employee. During the meeting to prepare for the deposition, the employee listens to his/her/their attorney’s advice about listening carefully to the questions and giving short specific responses without going off on tangents. Nonetheless, during the deposition, the employee blurts out some fact that is contrary to what has been said all along or came from completely out of left field. Unfortunately, this statement on the record at the deposition may ruin a previously good case if not handled properly.

What happens next? Well, there are a few options, both good and bad, to attempt to fix bad or wrong deposition testimony.

Can I correct something that I misstated at a deposition?

Employment Discrimination Lawyer Answer: The best option is to correct your testimony, if possible, while still on the record at the deposition. This is more easily done if the witness is correcting a simple statement and becomes more difficult regarding the complexity of the answer. For example, if asked to estimate the number of hours spent on a particular task, it can be more easily corrected. However, witnesses will not be able to recant a long description of an interaction between the witness and a supervisor.

The downside to this is that both answers remain on the record and can be used to impeach the witness later at trial. However, as long as an explanation for clarifying or fixing testimony is given at the time during the deposition, juries may be more understanding. The upside to this fix is that any dispute over which statement is correct during the same deposition may prevent the court from dismissing the case by way of summary judgment.

What is an errata sheet?

Best Wrongful Termination Attorney Answer: After every deposition, the court reporter will provide the witness the opportunity to review the transcript once it has been prepared. The process of reviewing the transcript is most often used to correct errors made in transcription by the court reporter but can also be used to make substantive changes to the testimony. For example, a witness can use the errata sheet to say that she really said, “two to seven” and the deposition and not just “seven.” Further, witnesses can change an answer by explaining that they misheard the question, or they were confused.

Much like fixing testimony during the deposition, both the original answer, the updated answer, and the reason for changing it on the errata she will be admissible at trial to address credibility; and any inconsistencies typically prevent summary judgment dismissal.

Can I change my deposition testimony by submitting a contrary affidavit to the court?

Top Race Discrimination Lawyer Answer: While affidavits are properly used to address information that is consistent with or supplements deposition testimony, affidavits that directly contradict deposition testimony are often rejected by the courts as “sham affidavits.” Essentially, the sham affidavit rule prevents a party from creating a question of fact by testifying one way at a deposition and then refuting his/her/their own testimony later by affidavit. The sham affidavit rule, which has been recognized by federal courts since 1969, allows the district court to simply wholly reject or ignore the so-called sham affidavit.

Let’s look at a recent example in the case of Provenzano v. RLS Logistics, No. 21-1658, 2022 WL 4128847 (3d Cir. Sept. 12, 2022) out of the United States Court of Appeals for the Third Circuit. In this case, Joseph Provenzano worked as a Senior Supervisor for RLS Cold Storage of Pittston, PA, Inc., which provides its customers with refrigerated and freezer storage. After Provenzano was diagnosed with colon cancer he took 12-weeks of job-protected leave under the Family and Medical Leave Act (“FMLA”). Although not fully cleared to return medically, Provenzano attempted to restart working on February 16, 2018. In documents provided to the employer, Provenzano’s oncologist advised that, if Provenzano should attempt to return to work, he should be restricted to a maximum of 50 hours per week and should not have extended exposure to cold climates. The employer determined that it could not accommodate Provenzano in his old position but transferred him to an inventory manager role at the same rate of pay. Provenzano viewed the transfer as a demotion and quit on his first day back. Shortly thereafter, Provenzano sued RLS for FMLA retaliation and disability discrimination.

The biggest issue in the case was whether Provenzano could do his former job.  At his deposition, Provenzano testified the oncologist’s cold time limitation meant no more than one or two hours per daily shift. He also testified that “he did not work primarily at a desk and that he was required to be in a freezer for more than an hour or two per day, beyond the amount of time Provenzano said his physician recommended he be exposed to freezing temperatures.” Id. at *2. Based on this testimony, the employer argued that he was no longer qualified to do his former job because he could not be exposed to the colder temperatures.

Realizing the problem, Provenzano submitted an affidavit in opposition to the motion for summary judgment saying that he was not required to be in the cold for more time than medically permitted and mostly worked at his desk. The distict court struck the affidavit as a sham and the United States Court of Appeals for the Third Circuit appeals affirmed:

District Court is empowered to disregard a nonmovant’s affidavit if it “contradicts earlier deposition testimony without a satisfactory or plausible explanation.” Id. at 391. Where the now contradictory affidavit is unsupported by the record, directly contrary to other testimony, or is clearly offered solely to defeat summary judgment, we will not find an abuse of discretion. Id. at 392.

In short, the District Court determined Provenzano’s attempt to create a genuine dispute as to the amount of time spent in freezers versus at a desk in his role as Senior Supervisor before his diagnosis contradicted both his prior testimony and the rest of the record.

Id. at *2. Importantly, however, things may have gone differently had Provenzano taken the opportunity to explain the inconsistencies and/or changes in his under-oath statement. As the United States Court of Appeals for the Third Circuit held: “Provenzano did not attempt to explain these inconsistencies, thus, the District Court did not abuse its discretion in ruling on summary judgment without considering Provenzano’s declaration.” Id.

Why should I choose the biggest employee’s rights law firm to handle my race discrimination and wrongful termination case?

Best Employment Lawyer Answer: At some point in every employment law case, a problem will arise. You don’t want to be sitting next to an inexperienced or unknowledgeable attorney when that happens. You will need an employee’s rights law firm that has the experience and resources to handle anything that may impact your race, national origin, gender, age, religion or disability discrimination claims. To make sure you have the best legal help, call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical). Call our lawyers in Ohio, Michigan, and Raleigh to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.


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