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...