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FAQ: What happens if the deposition transcript is wrong?

During a deposition, the attorney for the party being deposed will typically ask for a review of the transcript under Rule 30. This is a technical requirement of the Federal Rules of Civil Procedure that allows the party deposed to review the transcript and make a statement of the “changes in form or substance” to be made to the transcript. Here’s how you go about making sure that your transcript is an accurate representation of your deposition testimony.

Preserving the Right to Make Corrections

During the deposition, the attorney defending the witness must request that the witness has the opportunity to review the transcript and submit an errata sheet. If the attorney does not make this request before the conclusion of the deposition, then the right to submit an errata sheet is waived.

There is some debate among the courts as to whether it is enough to preserve this right at one of multiple depositions, or if the right as to be preserved at each deposition. Best practice is to make the reservation at every deposition as a matter of course.

Preparation of an Errata Sheet

If there are changes to be made to the transfer, an errata sheet must be prepared and submitted to the court reporter with the “changes in form or substance.” An errata sheet is a sworn list of corrections that a witness makes to his or her deposition testimony. Typically the attorney prepares the errata sheet and the witness signs the errata sheet in front of a notary public.

An errata sheet is usually prepared as a table in the following format:

Page/Line

Corrected Testimony

Reason for Correction

Page [##], line [##]

The [word/sentence/phrase] “[INCORRECT WORD/SENTENCE/PHRASE]” should be corrected to read “[CORRECTED WORD/SENTENCE/PHRASE]”

[Typographical Error / Transcription error / Clarification of Testimony / Correction of Misstatement / Other Reason]

Here, the corrected testimony must include the original testimony in quotation marks and brackets, and the testimony it should be correct to also in quotes and brackets.

Each correction must also have a permissible reason for the correction. If there is not a supporting reason, the court might strike your corrections, which means that the original reading of the transcript is what goes. The attorney is responsible to research the case law to determine if the case law supports the proposed correction.

Permissible Corrections

The Federal Rule permits corrections “in form or substance” (FRCP 30(e)(1)(B)). The extent of this phrase is debated depending on the circuit in which the case is filed. Some courts broadly interpret this phrase to include changes that directly contradict the original testimony. Other courts take contradictory corrections on a case-by-case basis and require “convincing explanations.” The majority courts only permit corrections of transcription errors and not corrections of what the witness said under oath.

Kathrine Leach

Kathrine is a writer, editor, and lawyer. She is a licensed attorney in New Jersey and Pennsylvania and she helps business owners, attorneys, and experts to excel in their "paper appearances."

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