If an errata sheet is indeed filed, the defending attorney should review the changes and proffered reasons first, to determine how best to respond. Depending upon the content of the errata sheet, the defending attorney may move to reopen the deposition or move to strike the errata sheet’s changes from the official deposition testimony. Litigants should consider disputing an errata sheet that fails to conform to the procedural requirements, such as failing to specify the page and line number of the testimony being corrected.
Defending litigants should then turn to the substantive changes to the transcript, while understanding their jurisdiction’s approach to errata sheets. Because courts interpret the phrase “in form or substance” differently, they are divided over the scope of permissible changes. The traditional approach permits substantive, sometimes even contradictory, changes to the deposition transcript. The modern approach strictly construes the rule and permits typographical corrections only, such as spelling errors. A minority of courts fall somewhere in the middle, further complicating this legal landscape.
In jurisdictions that follow the modern approach, the defending litigator may move to strike the errata sheet if the changes themselves go beyond simply correcting typographical errors or are substantive in any way. The reasons for the substantive changes usually do not need to be examined, as the modern approach prohibits all substantive changes, regardless of the proffered reason.
In jurisdictions where courts have adopted the traditional approach, both the changes and the reasons provided must be carefully considered. If the reasons are insufficient to justify the changes, it may be appropriate to move to strike the errata sheet or move to reopen the deposition to clarify the record.
It is also important to remember that an errata sheet does not remove the deponent’s original testimony, and that the trier of fact determines which answers to credit. Although reopening a deposition may be costlier and more inconvenient than moving to strike an errata sheet, it also creates an opportunity to attack a witness’s overall credibility. The deponent, after all, is admitting he or she needed a second round to give accurate answers. On the other hand, moving to reopen a deposition indicates some willingness to accept the errata sheet as part of the record. Whether reopening the deposition or moving to strike, the goal is to exploit any logical inconsistencies created by the new answers that can be resolved only by crediting the original answers.
New litigators who understand how to defend against an errata sheet before ever taking a deposition will be better prepared to fight back when a deponent tries to alter their testimony and will be well-equipped to create a clear, accurate record in their case.