In Missouri, a deposition is an event where one person appears virtually or live, swears an oath (or recites an affirmation) to tell the truth and is asked questions by an attorney. The questions by the attorney and the answers by the witness (or deponent) are recorded by a court reporter, who is a specially trained stenographer, and typed up in transcript form by that person.
At the end of the deposition, the witness will be asked by one of the attorneys or the court reporter whether they wish to review the transcript or “waive signature.” If a witness waives signature, they are affirming both their opinion that the court reporter has accurately transcribed the questions that were asked as well as the completeness of their answers.
The right to amend or correct the answers given in a deposition provided for in Rule 57.03(f) of the Missouri Rules of Civil Procedure is not intended to be an invitation to rewrite the deposition with 20/20 hindsight but should be an indication to the court reporter of genuine mistakes and include an explanation for the reported error. The errata sheet must be signed by the witness and will be included in the official transcript.
The witness may review the transcript and note any ways in which the question or answer has been transcribed or to change the substance of their answer and indicate those errors and changes on a blank piece of paper titled “errata sheet” that will be included with the deposition transcript by the court reporter.
Virtually 100% of the time, attorneys know and trust the court reporter they have chosen for the deposition and advise the client to waive signature primarily because the urge to improve answers that were given is very strong and not necessarily helpful, as it makes the deposition transcript unwieldy and difficult to use.
Rather than counting on the opportunity to review the transcript and make corrections, the better approach is to follow these five rules when you are the deponent:
- Make sure you hear the question.
- Make sure you understand the question.
- Answer just the question. Don’t volunteer.
- Be honest.
- Be yourself.
During any pending case (and in certain rare instances), a deposition may be taken of a party to the case or a third party believed to know information that may be relevant to the case. A deposition is one form of discovery allowed in a court case. Under Missouri law, inquiry in discovery – including a deposition – may be had regarding any information that is not privileged which is reasonably calculated to lead to the discovery of admissible evidence. Rule 6.01(b) of the Missouri Rules of Civil Procedure. The includes documents and the identity and location of possible witnesses.
Depositions are often used to obtain documents from third parties through service of a subpoena duces tecum on the custodian of records for such entity. As the testimony of the custodian of records is ministerial in nature, almost always the attorneys will agree that the documents may be produced with an affidavit signed by the custodian of records attesting to the authenticity of the documents
In the event that the deposition is believed to be overreaching, there are provisions in the Missouri Rules to potentially address those issues, but such remedies are case specific and beyond the scope of this piece.
If you are facing a deposition and have questions, consult your lawyer first. If you do not have a lawyer, it is best to confer with someone who handles cases like the underlying case. If the deposition is in a family law case, feel free to reach out to Pam at our office to schedule a free 30 minute consultation at (314) 721-2422.