In every employment lawsuit, depositions are taken. A court reporter transcribes the testimony and sends the transcript to the witness for review. Under federal rules, the witness has 30 days to review and submit any changes. The changes are supposed to reflect changes to what was asked or answered, not changes to actual substance. Changes generally address typos, not substance.
Clients ask me all the time how many corrections can they make to their deposition. In an employment case, the deposition of the alleged victim is critical. The employee must be able testify to the discrimination. So, any changes to the deposition transcript are important. What if the employee finds her deposition answers are not quite right? I have never had that problem. In my experience, the issue has always been typos or perhaps, somewhat incomplete explanations.
Well, in Norelus v. Denny’s, No. 94-02680-CV (S.D. Fla.), the plaintiff employee made 868 changes to her deposition transcript. A junior associate even helped write explanations for the changes (e.g., "recollection refreshed"). What happened afterwards is subject to dispute, but is the subject of an 11th Circuit deision in which the appellate court sanctioned the plaintiff’s law firm almost $400,000. See No. 07-14077 (11th Cir. 12/28/10).
The plaintiff was a Haitian immigrant. She worked at a Denny’s in Miami and alleged she was sexually harassed constantly and raped by two managers. Her deposition lasted eight days, which is very unusual. She reviewed her deposition, as most plaintiff employees do, and made 868 changes, which is also very rare. I think the most changes any of my clients have ever made was some 20 to 30 changes.
According to the dissent, the plaintiff lawyer then sent the errata sheet with 868 changes to the defense attorney, not to the court reporter. In testimony later, Karen Amlong, the plaintiff’s lawyer, said she wanted the truth to be know about the client’s testimony.
As the dissent explains, this is an important distinction. If Ms. Amlong wanted the errata sheet to be made part of the deposition, then it had to be sent to the court reporter. Not doing that, it appears the plaintiff lawyer had other goals in mind. The dissent believes she felt ethically bound to reveal possible perjury by her client. The nature of the changes (changing no answers to yes; providing details she could not previously recall during the deposition a few weeks prior) does suggest the client lied in her deposition, in the changes or both. So, some lawyers would believe they have a duty to reveal those apparent lies. The ethical rules are not clear. The dissent believes Karen Amlong deliberately, if indirectly, revealed those lies to the defense attorney.
At this point in the lawsuit, the defense lawyer moved for sanctions. He implied, without directly stating it, that Ms. Amlong submitted the 868 changes to the court reporter. Thus began some $378,738 in attorney’s fees by the defense. That is the amount of the court’s sanction. So, as the dissent explains, the defense lawyer could have avoided the $378,738 if they had been more honest.
The 11th Circuit decision is curious. The majority opinion takes some nasty swipes at the dissent. A second judge concurred in everything but the part that attacks the dissent. It takes two judges to reach a ruling. So, essentially, the "majority" decision includes one and one-half judges.
The majority opinion discusses the Amlongs’ actions constantly throughout a very lengthy decision. But, so far as I can tell, the majority decision never mentions the name of the defense attorney who also appears to have committed errors. The majority decision is some 74 pages long.
The "errata sheet" was submitted just before trial. The trial judge, upon being informed of all the changes, ordered a third deposition of the employee at the employee’s expense. The plaintiff testified poorly, unable to recall certain facts. The plaintiff bcame sarcastic with the defense attorney, who then stopped the deposition.
The plaintiff refused to pay the costs of the third deposition and the judge dismissed the case. The resulting litigation has been all about these defense lawyers trying to recoup their attorney fees.
It is curious to me that the plaintiff’s lawyer stayed with the client even after the 868 changes. To me, those changes, some completely different from her deposition testimony, appear to indicate perjury. Some lawyers would have withdrawn from such a case once perjury became apparent. I am told that few lawyers go to the trouble of representing Haitian immigrants. Translation of the Creole dialect is very difficult.
The Amlongs are well-known attorneys. They previously represented Ms. Faragher in the well-known Faragher v. City of Boca Raton decision. That was a US Supreme Court decision that cleared up confusing law regarding sexual harassment cases. That case required some hutzpah, since the state of sexual harassment law prior to the Faragher decision was very confused.
The dissent makes more sense to me. If the lawyer sent the errata sheet to the defense attorney, and not to the court reporter, then clearly the plaintiff’s lawyer was trying to alert the defense to her client’s apparent perjury. That is no small step for any lawyer to take, possibly exposing Ms. Amlong to a complaint by her own client. I am sure Ms. Amlong felt considerable angst when she sent that list of 868 changes to the defense attorney.
The sanction, $378,738, is huge for a small, mom and pop law firm. I am sure the plaintiff’s law firm will seek en banc consideration. En banc review means they will ask the entire 11th Circuit to hear their case. This deicision issued Dec. 28, was issued by a three judge panel. The 11th Circuit has some ten other judges. They might view the case differently.
Clients and witnesses do not need to recall every detail of every event. They do need to recall enough facts to be credible. If they make wholesale changes to a deposition, then that does suggest perjury somewhere. The young associate who actually provided legal terminology (‘recollection refreshed") to support some changes made things worse for the Amlongs.
The purpose of reviewing a deposition is not to ensure the transcript accurately reflects reality. The purpose of reviewing a deposition transcript is to ensure the transcript accurately reflects the reality as it was conveyed in that deposition on that one day.