Section 10.20 2. Use Of Errata Sheets

• Jurisdiction: New York

2. Use of Errata Sheets

Part One, Chapter 8 discusses the correction of deposition transcripts and possible limits on the use of errata sheets in general under FRCP 30(e). In the context of summary judgment, a court can disregard an errata sheet that a deponent submits after conclusion of the deposition:

There is no reason to distinguish . . . between an attempt to conjure up a triable issue of fact through the proffer of a late affidavit and an attempt to achieve the same end through the submission of delayed errata sheets or supplemental answers to interrogatories. None will defeat a motion for summary judgment. ¹⁴³⁸

Another court wrote:

If a party were allowed to create material factual disputes by altering one’s deposition testimony via an errata sheet, summary judgment would rarely, if ever, be granted. Parties should not be able to evade an answer given under oath during a deposition when it is later used against them by simply stating the opposite in the errata sheet. ¹⁴³⁹

With regard to summary judgment on a 42 U.S.C. § 1983 claim, a court disregarded an errata sheet that substantially contradicted plaintiff’s deposition testimony as to the reason for his termination.¹⁴⁴⁰ The court concluded that plaintiff had clearly attempted to furnish “artful answers” in the sheet. The original testimony had given no hint of confusion about the questions, and plaintiff did not rely upon the discovery of new evidence as justification for the corrections. Furthermore, the court observed, the questions were ones on which plaintiff’s attorney could have cross-examined him at the time. Therefore, the corrections were disregarded.¹⁴⁴¹

It might be argued that FRCP 30(e) governs the correction of depositions during the discovery process. Thus, (1) because the rule does not limit the extent of substantive changes...