A short, snappy decision issued on March 30 by the Appellate Division, Second Department, stimulated this article. The appellate panel, in 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 review.
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