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

Tactical Considerations When Confronting and Correcting Untrue Statements

Recording of a 90-minute CLE webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Thursday, September 10, 2020

Recorded event now available

or call 1-800-926-7926

This CLE course will guide counsel in confronting false statements in errata sheets and sham affidavits in which the deponent rewrites, retracts, and reverses material and substantive portions of prior sworn testimony. The webinar will also consider the conflicting ethical duties that arise when clients tell their lawyers (or lawyers determine) that answers to substantive and sometimes outcome-determinative questions were wrong.


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.



  1. Rule 30(e)
    1. Technical requirements
    2. Jurisdictional differences
      1. Policy-based approach (Greenway v. International Paper)
      2. Textual approach
    3. Distinguishing clarification from contradiction
  2. Remedies
    1. Amended vs. replacement of testimony
    2. Motion to strike
    3. Reopen deposition
    4. Impeachment at trial
    5. Errata sheets as functional affidavits
  3. Practice pointers


The panel will review these and other issues:

  • Current views on the scope and meaning of Federal Rule 30(e)
  • Conflicting duties of candor to the court, attorney-client privilege, and zealous advocacy
  • When to reopen depositions
  • The "sham affidavit" rule
  • The "sham correction" rule


Dickinson, Ian
Ian Dickinson

Womble Bond Dickinson (US)

Mr. Dickinson guides clients in employment and commercial litigation matters through all phases of a dispute, from...  |  Read More

Hicks, Jason
Jason C. Hicks

Womble Bond Dickinson

Mr. Hicks has experience litigating cases and counseling clients in a wide variety of matters involving federal and...  |  Read More

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