Errata sheet? We don’t need no stinkin’ errata sheet.
In one scene of John Huston’s classic 1948 film “The Treasure of the Sierra Madre” a Mexican bandito tries to convince Humphrey Bogart that he and his company are Federales. Bogart’s character, Fred Dobb asks: “If you’re the police, then where are your badges?” The infamous reply was “Badges? We ain’t got no badges. We don’t need no badges. I don’t have to show you any stinkin’ badges!”
From time to time lawyers are faced with a case where a deponent (usually a party opposing a Motion for Summary Judgment) attempts to contradict their earlier deposition testimony with an affidavit. This is probably the functional equivalent of the deponent saying: “Errata Sheet? We ain’t got no errata sheet. We don’t need no errata sheet. I don’t have to show you any stinkin’ errata sheet!” Courts have taken a dim view, and slightly different approaches, when faced with these circumstances.
For example, the Tennessee Court of Appeals for the Western Division recently pointed out the Tennessee rule:
[O]ur Supreme Court has characterized “mutually contradictory statements by the same witness as ‘no evidence’ of the fact sought to be proved.” To be disregarded under the so-called cancellation rule, the allegedly contradictory statements must be unexplained and neither statement can be corroborated by other competent evidence.” Id.
David Chambers, et al. v. Illinois Central Railroad Company, Case No. W2013-02671-COA-R3-CV, Filed May 5, 2015 (quoting Church v. Perales, 39 S.W.3d 149, 170 (Tenn. App. 2000)).
This is slightly different from the approach taken by some other courts, for example the Fifth Circuit:
It is well settled that this court does not allow a party to defeat a motion for summary judgment using an affidavit that impeaches, without explanation, sworn testimony. However, if the affidavit “merely supplements rather than contradicts prior deposition testimony,” it may be considered when resolving the motion for summary judgment. Permissible supplementation includes providing “greater detail or additional facts not previously provided in the deposition.”
McArdle v. Dell Prods., L.P., 293 Fed. Appx. 331, 335 (5th Cir. Tex. 2008) (citing the rule but not applying it – affidavit found to supplement, not contradict, prior deposition testimony) (citing S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495-496 (5th Cir. 1996)).
On its face, under the Tennessee rule where neither statement is corroborated the contradictory affidavit makes the earlier deposition testimony null. In other courts the contradictory affidavit may be null and the original uncorroborated deposition testimony may still be used affirmatively. In the first case summary judgment may not be appropriate (if the now null testimony was the only evidence on the issue) while in the second case summary judgment may be appropriate (the deposition testimony established the fact).
In discussing this issue with a colleague he mentioned an analogous situation that arose in a trial. One of the issues in the trial was whether there was mud in an area where the plaintiff was walking. On direct examination, defense counsel elicited testimony that (1) that he had not looked at his shoes just before the accident and (2) as a result, he didn’t know whether his shoes were muddy at the time of the accident. If that had been deposition testimony and offered in support of a Motion for Summary Judgment and there was no corroborating evidence one way or the other could the deponent offer a contradicting affidavit? The answer probably depends on whether the presiding judge would allow an “explanation” that when the question was posed the deponent did not consider the inferences that he or she could have permissibly drawn before answering the question. An affidavit would have to explain the inferences.
In the muddy boots case the court explained: “Hall admitted during cross-examination that he was speculating as to whether his boots contained the slippery substance at the time of the accident. This admission, however, is not fatal to Hall’s claim. Evidence in the record clearly established that, on the day of the accident, it had been raining and the muddy substance was on the ground. The evidence further established that Hall was walking in the Yard during this period of time, and that there was no facility to clean his boots. These facts created sufficient circumstantial evidence for the jury to find that Hall’s boots indeed had mud on them at the time of the accident.” Canadian Nat’l/Ill. Cent. R.R. v. Hall, 953 So. 2d 1084, 1092-1093 (Miss. 2007).
The lesson to learned is that while it may be true that a deponent may be tempted to say “we don’t need no stinkin errata sheet”, such a deponent at least has to go a little further and say “we don’t need no stinkin’ errata sheet because my affidavit merely supplements rather than contradicts my prior deposition testimony.”