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January 31, 2018 Practice Points

How to Use Errata Sheets to Your Advantage

In a recent case, plaintiffs alleged that Nestle and Cargill perpetuated a system of child slavery on cocoa farms

by Helene Hechtkopf and Amory McAndrew

Now that you have defended a deposition, what do you do with the transcript? What if you find typographical errors or misspelled names? Dates that were misremembered? Or worse, what if your witness wants to make more substantive changes?

FRCP 30 allows a deponent to review the deposition transcript and sign an errata sheet—“a statement listing the changes and the reasons for making them.” There is a circuit split as to the scope of the changes that are allowed to be made in an errata sheet. Some courts allow only non-substantive changes, like typos or spelling errors. Other courts allow deponents to make any change in form or substance.

The rule itself does not limit the types of changes that can be made by errata sheet. In those circuits that allow any changes to the deposition transcript by errata sheet (such as the Second Circuit), the witness can make really any change—even if it is one that contradicts the witness’s prior testimony, even if the reason for the change is unconvincing. That does not mean, however, that the changed answer on the errata sheet will replace, or delete, the deposition testimony. Instead, the changed answers simply become part of the record. Whether the trier of fact credits the original deposition answer or the errata sheet comes down to the witness’s credibility.

 But that does not mean that a party can simply change all of its depositions on an errata sheet and thereby evade summary judgment. Courts are permitted to disregard an amendment from an errata sheet that “reflects a party’s attempt ‘to retrieve the situation by scratching out and recanting his original testimony.’” Barnes v. Ross, No. 12 CIV. 1916 PKC, 2014 WL 1329128 (E.D.N.Y. Apr. 3, 2014).

Helene Hechtkopf is a partner at Hoguet Newman Regal & Kenney, LLP, in New York City, where she practices commercial and employment litigation.

Amory McAndrew is an associate at Hoguet Newman Regal & Kenney, LLP, in New York City, where she practices employment litigation and counseling.

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