Anyone familiar with the typical practice of amending deposition testimony pursuant to Rule 30(e) will want to read this case. Judge Noonan therein substantially limits the ability of paties to edit their deposition testimony as a means of avoiding summary judgment -- a fairly common practice. Judge Noonan holds that such changes are indeed subject to the "sham exception" that has previously been applied to affidavits, and that these changes can, in appropriate cases, be ignored in ruling on such a motion. The opinion also discusses -- and, critically, highlights the importance of -- a plethora of other procedures that, in my experience, many litigators routinely ignore, including (but by no means limited to) the requirement that the basis for any testimonal edits be explained. It's an important case for anyone actually practicing law in federal courts.
This is also an interesting -- and difficult -- case for textualists. The result reached by Judge Noonan is hardly surprising, and it's largely consistent with the holdings of some other circuits and a variety of district courts. But none of these cases do a very good job of justifying their holdings to formalists. There are ample policy bases upon which one might rationally preclude a party from altering his own deposition testimony as a means of avoiding summary judgment. So if you're not much constrained by text, you'll almost certainly agree with Judge Noonan.
But here's the problem. Rule 30(e) expressly allows parties to make "changes in form or substance" to their deposition testimony. It is almost impossible to rationalize that clear authorization with the holding that these changes can effectively be ignored. Judge Noonan argues that ignoring sham deposition changes is just like ignoring a sham affidavit. Perhaps. But sham affidavits are expressly addressed -- indeed, subjected to sanctions -- in Rule 56(g), whereas the response to sham deposition changes lacks any similar textual basis. Moreover, nothing in the FRCP expressly authorizes sham affidavits (indeed, Rule 56(g) is directly to the contrary), whereas Rule 30(e) does indeed expressly authorize substantive deposition changes.
Now, I'm no hard core textualist. Far from it. So a lot of Judge Noonan's opinion rings true to me. But, to me, the text does indeed constrain the judiciary's response. For this reason, entirely failing to address that text -- like Judge Noonan does -- is not only unwarranted, but substantially weakens the persuasive effect of the holding. You gotta confront the weak parts of your proposed result. Ignoring 'em doesn't make 'em go away.
