For litigation attorneys, the wrap-up process at the close of a deposition is a familiar scenario: The taking attorney will state that he or she has no further questions, after the opposing attorneys have done the same. The taking attorney will then set out stipulations regarding the transcript, and they may decide to give the deponent the opportunity to read and sign it.
There are times, when the witness reviews the transcript, that they seek to make changes through an errata sheet, so lawyers need to tread very carefully to protect the integrity of the record. The process of preparing, reviewing, and filing the deposition errata sheet matters for both the client and the witness, as well as for the potential success of the case.
Role of the Errata Sheet
Under Rule 30 of the Federal Rules of Civil Procedure and state laws regarding depositions by oral examination, deposition witnesses can request time to review the transcript, or another recording, once it becomes available. If there are changes, the deponent can make an itemized list of corrections or clarifications, along with a notation on the reasons behind them. The errata sheet, sometimes called the errata page, is the record of this process. Although it’s a separate attachment from the deposition transcript, it’s still part of the official court record as a whole.
Potential Consequences of Failing to Review the Errata Sheet
The point of allowing a deponent to prepare an errata sheet is to alert the court reporter about errors in the official record of the proceeding. It’s not intended and should never be used to change the deposition testimony regarding material facts. The errata sheet should also not be considered an opportunity for the witness to add or elaborate responses when the deposing attorney’s questioning didn’t elicit them.
Unless the errata sheet is carefully reviewed, there’s a possibility that misuses can make their way into the official court record. Because depositions are given under oath, attorneys could run into serious trouble at trial when deposition testimony directly contradicts the errata sheet’s content. The exact details depend on the relevant court’s approach to making substantive changes to deposition testimony.
- The traditional approach, which is quite permissive, allows material changes to the transcript through the errata sheet.
- Courts that adhere to the modern approach take a restrictive view, only allowing an errata page to make corrections to errors by the court reporter.
- In jurisdictions that follow the case-by-case approach, deponents can make changes as long as they don’t create an entirely new issue of material fact. A witness shouldn’t be allowed to reconstruct sworn statements to significantly alter the evidence at issue.
The management of deposition errata sheets must be viewed as a critical process with the potential to affect the outcome of any civil case. Attorneys’ duty to their client and dedication to delivering quality legal services requires them to protect the integrity of the record, so they shouldn’t think twice about investing time and effort into careful handling of the errata sheet as part of the deposition process.