By Michael Hoenig - New York Law
Journal - April 14, 2016
A short, snappy decision issued on March 30 by the Appellate Division,
Second Department, stimulated this article. The appellate panel,
Torres v. Board of Education of City of New York,1
held that errata sheets attempting to correct testimony in
plaintiff's deposition transcript should have been struck when
defendant moved to have them rejected. The corrections were
deemed unacceptable because of shortcomings in meeting the
requirements of CPLR 3116(a), the applicable state procedural
rule, as well as governing case law. When errata sheets are
ruled to be failures, what's left is the sworn "uncorrected"
testimony. That result can prove to be fatal to a litigant's
case if, for example, the version of the statement in the
original transcript might justify summary judgment for the
adversary. Several other calamitous consequences could ensue so
failure to effect acceptable corrections can be, colloquially
speaking, a "big deal."
At first blush, many litigators on both sides possibly view the practice of
offering corrections to deposition transcripts as a kind of
vanilla ministerial function, hardly controversial and unlikely
to instigate the adverse lawyer's keen interest in the matter,
let alone a snarl or bite. A passive, uninterested approach to
the other side's proffer of deposition errata sheets, however,
is not only neglectful, it is unwise. A head-in-the-sand
attitude against closely examining proposed errata sheets can
mean the difference between obtaining summary judgment for one's
client as opposed to a lengthy, expensive trial whose outcome
may be uncertain plus the expense of appellate proceedings.
Errata sheets submitted by or on behalf of a deponent thus
deserve devoted, detailed attention, not a perfunctory, hasty
In order to do that meaningfully, however, counsel must be familiar with
the applicable procedural rule and some of the governing case
law on the topic. In New York state courts, CPLR 3116(a)
governs. In federal practice, Federal Rule of Civil Procedure
30(e) is controlling. The rules and case law reflect competing
considerations. Line-drawing by courts reflects policy tensions.
Lawyers have to understand the policy rationales to construct
and deliver excellent advocacy.
For example, the procedural rules clearly permit some corrections within
certain time frames. That means that the law tolerates, if not
welcomes, some post-deposition testimonial changes, likely in
recognition of the realities that stenographers can make
mistakes, as can deponents. As one federal appellate court said,
"No one's memory is perfect. People forget things or get
confused, and anyone can make an innocent misstatement or two.
Or maybe even three or four."2 Also, there is the
law's objective of promoting truthful, accurate testimony.
Acceptable corrections can assist in that regard.
On the other hand, the law's tolerance for changed testimony is not
limitless. Deposition practice would become a burlesque if
deponents could make abundant, material, substantive testimonial
changes under the guise of "corrections." Allowing major changes
could, for example, justify reopening depositions for
supplementary proceedings. Were this to become ubiquitous, the
system would bog down. Additional depositions would tax
everyone, not to mention the expense factor.
Indeed, allowing transcript changes to be made willy nilly would
destabilize an essential purpose of depositions, namely, to pin
down the deponent's sworn testimony so that the litigants have
some level of certainty as to what the facts are. After all,
that's a pivotal goal of pretrial discovery. As we shall see,
some courts are thus quite wary about the number and kind of
"corrections" that errata sheets may proffer and the reasons for
them. Indeed, on the federal courts side, there seem to be
circuit splits on how "liberally" FRCP Rule 30(e) should be
Then, as a separate but related matter, there are significant ethical
considerations that pertain to a lawyer's preparation of
witnesses for deposition and trial. These were discussed in an
excellent article by Denver attorney, Erin C. Asborno, in an ABA
publication.4The ABA's Model Rules of Professional
Conduct forbid a lawyer from knowingly offering false evidence
or knowingly counseling or assisting a witness to testify
falsely (Model Rules 3.3 and 3.4(b)). The comment to ABA Model
Rule 3.4 lists "improperly coaching witnesses," among other
items, as prohibited behavior.
On the other hand, "witness preparation" seems to be part of the attorney's
ethical obligation to competently represent his client. Model
Rule 1.1 says "competent representation" requires "legal
knowledge, skill, thoroughness and preparation reasonably
necessary for the representation." Does "witness preparation"
include telling the witness what he should say? Does it include
telling a deponent what "corrections" he should insert on errata
sheets that offer changes to the transcript? Asborno's helpful
article cites an 1880 New York decision picturesquely stating
that a lawyer's duty is to "extract the facts from the witness,
not to pour them into him; to learn what the witness does know,
not to teach him what he ought to know."5
After discussing a number of sources, Asborno concludes that ethical
witness preparation is an essential part of preparing for
deposition or trial. However, "[t]he crucial issue is that the
lawyer does not falsify, distort, improperly influence, or
suppress the substance of the testimony to be given by the
witness."6 As can be seen, a lawyer's "coaching" of
the deponent regarding corrections to be made in errata sheets
can implicate ethical bounds. Moreover, if the corrections
really are the lawyer's input, then it is the lawyer who, in
effect, becomes the "testifier."
In the Appellate Division's Torres ruling on March 30,7
plaintiff sued for personal injuries. He testified at a hearing
on issues regarding the basis for his negligence suit against
the New York City Board of Education. Then he was later deposed
and testified in conflict with his testimony at the hearing.
Pursuant to CPLR 3116(a), which allows a witness to make
"changes in form or substance" to deposition testimony as long
as the changes are accompanied by "a statement of the reasons
given by the witness for making them," plaintiff served errata
sheets offering his corrections. Defendant moved to strike those
errata sheets. The trial court denied the motion, but the
Appellate Division reversed and struck the corrections.
The Second Department panel stated: "A correction will be rejected where
the proffered reason for the change is inadequate." Further,
"material or critical changes" to testimony through the use of
an errata sheet are also prohibited. Here, plaintiff made
"numerous and significant" corrections to his testimony which
would have been in conflict with his earlier testimony at the
hearing. Additionally, the court deemed plaintiff's stated
reasons for the changes—that he "mis-spoke" and that he was
clarifying his testimony—"inadequate to warrant the
v. 197 5th Avenue Corp,8
plaintiff sued for injuries sustained when she tripped and fell
over a sidewalk cellar door adjacent to the defendant's property
at 197 Fifth Avenue in Brooklyn. However, at her deposition
plaintiff repeatedly testified in great detail that she tripped
and fell at 140 Fifth Avenue, some two to three blocks away and
across the street from defendant's property.
Notwithstanding the "detailed, consistent and emphatic nature of the
plaintiff's deposition testimony" regarding the accident
location, plaintiff later executed an errata sheet containing
"numerous substantive 'corrections' which conflicted with
various portions of her testimony" and which sought to establish
that she actually fell at 197 Fifth Avenue (defendant's
building). The Appellate Division struck the errata sheets
because plaintiff had failed, pursuant to CPLR 3116(a), to
provide "an adequate reason for the numerous critical
substantive changes she sought to make in an effort to
materially alter her deposition testimony."
Ashford v. Tannenhauser,9 an employee fell
from a ladder and described details about the ladder and how it
"slid out from under him." In a post-deposition errata sheet,
however, the injured plaintiff "radically changed much of his
earlier testimony, with the vague explanation that he had been
'nervous' during his deposition." Since plaintiff failed to
offer an adequate reason for "materially altering the substance
of his deposition testimony," the changed testimony could not
properly be considered in determining whether a defect or
inadequacy in the ladder caused his fall. Plaintiff thus failed
to raise a triable issue of fact. Judgment for defendant was
warranted.10 The New York decisions suggest that
errata sheets presenting numerous or "substantive" or "material"
changes in testimony or that present inadequate reasons for each
such change or that are served untimely are vulnerable to be
stricken. The decisions also illustrate that nullifying the
attempted changes can lead to favorable dispositions for the
In federal courts it is FRCP Rule 30(e) that prescribes the applicable
procedure. The witness must submit an errata statement
describing any changes within 30 days of notification that the
transcript is available. The statement should specify the
reasons for the changes and be signed by the witness. The
submitted changes are attached to the transcript. The courts
vary as to whether and when they will allow changes in the
substance of the testimony.11 The statement of
reasons for the corrections is important. A failure to give
reasons can justify the court striking the added testimony. A
statement that the proposed changes are to correct typographical
errors and to provide defendants with more complete information
on plaintiff's position was held adequate by a Virginia federal
However, the author of the Rule 30(e) section in Moore's Federal Practice
treatise observes that the courts "are divided on the type and
extent of changes permitted." Some courts have concluded that
any changes in form and substance are permitted, even
contradictory testimony, since the rule places no limitations on
the type of changes.13 Some of these courts reason
that there are adequate safeguards to prevent abuse, such as
maintaining the original record, reopening the deposition in
cases of contradictory testimony, and assessing the costs of
additional discovery against the deponent.14
On the other hand, some federal courts hold that substantial changes are
improper since the rule should not be used to permit a deponent
to alter what was said under oath. These rulings suggest that
material changes beyond correcting errors in transcription are
not acceptable. Thus, a substantive correction of a key answer
from "yes" to "no" would be problematic. Adding new testimony
based on new evidence under the guise of correcting errors has
been rejected.15 Errata sheet substantive changes
relied upon to try to defeat summary judgment motions can
trigger a variant of the so-called "sham affidavit" rule which
rejects affidavits contradicting prior sworn testimony to be
used to defeat a summary judgment motion. In determining whether
errata sheet changes constitute a "sham," courts consider a
number of factors: the number of corrections; whether the
corrections fundamentally change the prior testimony; the impact
of the changes on the case (e.g., whether they pertain to
dispositive issues); the timing of the corrections; and the
witness's qualifications to testify.16
The "sham" nature of errata sheet changes was extensively discussed in
Karpenski v. American General Life Cos.,17 a
lawsuit by a physical therapist claiming that her disability
policy was wrongfully terminated by the defendant insurance
company. Plaintiff urged that the errata sheets of three defense
witnesses should be stricken. One witness made 29 changes,
another 45 changes and the third, 16 changes. After discussing
the 'sham affidavit" rule, the court concluded that the three
witnesses' errata sheets were "contradictory rather than
corrective testimony and exceed the scope of changes permitted
to deposition testimony under Rule 30(e)." Accordingly, the
errata/jurats were stricken.18
A rather extreme case of deposition corrections is found in
Norelus v. Amlong,19 where the attorneys for a
plaintiff employee claiming extreme sexual abuse at a Denny's
restaurant workplace were sanctioned for improper litigation
conduct. Among the claimed misdeeds was the submission of 868
errata changes to the alleged victim's deposition testimony. The
plaintiff was an immigrant whose English was poor and an
interpreter was needed.
The reason for 500 of the 868 changes was stated to be that the deponent
"did not understand what was being asked." The others were
classified into three broad classifications: "poor translation
by interpreter," "clarification of response," and "refreshed
recollection."20 The appellate court majority called
it a "novella-length errata sheet." The attorneys' creation and
submission of this document and their continued pursuit of
plaintiff's claims multiplied proceedings in the case
"unreasonably and vexatiously" justifying the award of
Correcting depositions may appear to be a routine, almost clerical-like
procedural practice. Yet, significant dangers may lurk for the
inattentive lawyer when errata sheets are proffered to correct
transcripts of sworn testimony. Thus, vigilance is needed, not
disinterest. The attentive lawyer will find, in the procedural
rules and case law, potential avenues of redress to strike
material, substantive changes to deposition transcripts.
Alternatively, he can seek other relief such as reopening of
depositions at the adverse party's expense to probe the basis
for all changes.
1. 2016 NY Slip Op 02350 (2d Dept. March 30, 2016).
2.Norelus v. Denny's, 628 F.3d 1270, 1273 (11th Cir.
3. See generally, J.W. Stempel, "Review of Transcript By
Deponent," in 7-30 Moore's Federal Practice—Civil, §30.60 (2015)
4. "Ethical Preparation of Witnesses for Deposition and Trial,"
25 ABA, Verdict, No. 3, p. 12 (Summer 2011) (available from the
American Bar Association, Section of Litigation, Trial
5. Id., citing
In re Eldridge, 82 N.Y. 161 (1880).
7. Supra n. 1.
8. 123 A.D.3d 768 (2d Dept. 2014).
9. 108 A.D.3d 735 (2d Dept. 2013).
10. See also Shell v. Kone Elevator Co., 90 A.D.3d 890
(2d Dept. 2011) ("numerous significant, substantive changes" to
deposition testimony on errata sheet without providing a reason;
changes struck); Kelley v. Empire Roller Skating Rink, 34
A.D.3d 533 (2d Dept. 2006) ("affidavit of correction" struck as
it was untimely and without a "sufficient explanation" for the
substantive change in deposition testimony).
11. See generally, S. Baicker-McGee and others, Federal Civil
Rules Handbook, "Rule 30(e)—Review By The Witness; Changes," pp.
887-888 (2016); J.W. Stempel, "Review of Transcript By
Deponent," §30.60 (in Moore's Federal Practice), supra n. 3.
12. J.W. Stempel, supra n. 3, at fn. 5 (citingFoutz v. Town
of Vinton, Virginia, 211 F.R.D. 293, 295-296 (W.D. Va.
13. See cases cited in J.W. Stempel, supra n. 3, at footnote 8.
15. See Id. at fn. 9 (citing cases).
16. See Id. at fn. 11—fn. 11.3 (citing cases).
17. 999 F.Supp.2d 1218 (W.D. Wash. 2014).
18. Id. at 1224-1225.
19. 628 F.3d 1270 (11th Cir. 2010).
20. Id. at 1285.
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