Deposition transcript v. errata sheet

In personal injury litigation, depositions serve as critical discovery tools where witnesses provide sworn testimony under oath. However, complications arise when a deponent later attempts to change their testimony through an errata sheet—a document that allows witnesses to correct errors in their deposition transcript. This creates a legal dilemma: which version should courts consider authoritative?

The tension between original deposition testimony and subsequent corrections presents unique challenges, particularly when defendants seek summary judgment motions. Courts must determine whether these conflicts can be resolved as a matter of law or whether they create genuine issues of material fact requiring jury determination.

When substantial discrepancies exist between a witness’s original sworn testimony and their errata sheet corrections, the credibility of both versions becomes questionable. This credibility determination is typically reserved for juries, not judges ruling on pre-trial motions. The legal system recognizes that factual disputes involving witness credibility cannot be properly evaluated without the benefit of a full trial where witnesses can be cross-examined and their demeanor observed.

Jason Tenenbaum’s Analysis:

Pollina v Oakland’s Rest., Inc., 2012 NY Slip Op 03991 (2d Dept. 2012)

“We note that the conflict between the plaintiff’s original deposition testimony and the correction sheet “raises an issue of credibility which may not be resolved on a motion for summary judgment” (Williams v O & Y Concord 60 Broad St. Co., 304 AD2d 570, 571; see Breco Envtl. [*2]Contrs., Inc. v Town of Smithtown, 31 AD3d 359, 360; Surdo v Albany Collision Supply, Inc., 8 AD3d 655).”

Key Takeaway

The Pollina decision establishes an important principle in New York civil litigation: when deposition testimony conflicts with errata sheet corrections, courts cannot resolve these credibility issues through summary judgment motions. Instead, these disputes must proceed to trial where a jury can evaluate the witness’s credibility and determine which version of the testimony to believe. This ruling protects the right to jury trial in cases involving disputed facts.

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