Deposition transcript v. errata sheet

An errata sheet is the document a witness uses to record changes to a deposition transcript after the deposition is over. In New York, CPLR 3116(a) governs the procedure: the witness has 60 days to read the transcript, list any changes “in form or substance,” state the reason for each change, and sign before a notary. Substantive changes that contradict prior testimony are scrutinized.

Key Takeaways

• CPLR 3116(a) is the controlling rule in New York. Changes must be entered at the end of the deposition with a written reason for each one, and the transcript must then be signed before an officer authorized to administer an oath.
• The witness has 60 days from when the transcript is submitted to sign and return it. If the deadline lapses, the transcript may be used as fully as if signed.
• Typographical and clerical fixes are routine and rarely controversial. Substantive changes that contradict prior sworn testimony are routinely challenged.
• Under the New York “sham affidavit” / contradictory-testimony line of cases, courts treat post-deposition errata-sheet edits skeptically when they appear designed to manufacture a fact issue and defeat summary judgment.
• When original testimony and errata-sheet changes squarely conflict, the issue is one of credibility — and credibility cannot be resolved on summary judgment (Pollina v Oakland’s Rest., Inc., 2012 NY Slip Op 03991 (2d Dept.)).
• The errata sheet does not replace the transcript. The original transcript remains the official record; the errata sheet is appended to it as the witness’s permitted corrections, and both are available to opposing counsel.

What is an errata sheet?

An errata sheet is a written list of corrections a deposition witness submits after reviewing the transcript of their testimony. The word “errata” comes from the Latin errata — meaning “errors” — and the legal use of the term traces back to the same publishing tradition that produced the errata page in printed books.

In a deposition, the witness testifies under oath while a court reporter creates a verbatim transcript. After the deposition concludes, the transcript is sent to the witness for review. The witness reads it, marks any changes they want to make, signs it before a notary, and returns it. The errata sheet is the standardized form (or, in many cases, a free-form attachment) on which those corrections are recorded.

Errata sheets are part of the regular discovery workflow in New York personal injury litigation, no-fault actions, employment cases, and commercial litigation. They are not optional add-ons — the right and the procedure are built into the CPLR.

CPLR 3116(a) — the New York rule

CPLR 3116(a) is the statute that governs the signing of a New York deposition transcript. The rule provides that:

• The deposition shall be submitted to the witness for examination and shall be read to or by the witness.
• Any changes in form or substance that the witness desires to make shall be entered at the end of the deposition, accompanied by a statement of the reasons the witness gives for making them.
• The deposition shall then be signed by the witness before any officer authorized to administer an oath (a notary, in practice).
• If the witness fails to sign and return the deposition within 60 days of submission, the deposition may be used as fully as though it had been signed.

A few practical points flow directly from the text of the statute:

• The 60-day window runs from when the transcript is submitted to the witness for review, not from the date of the deposition itself.
• The errata sheet must include the witness’s stated reason for each change. A bare list of edits with no explanation is procedurally defective and gives the other side an immediate target.
• The errata sheet must be executed before a notary. An unnotarized errata sheet does not satisfy CPLR 3116(a).
• The 60-day default rule is a safety valve for the discovery process. If a witness sits on the transcript and never returns it, the unsigned transcript still comes into evidence.

For background on the broader civil-procedure framework, see our legal encyclopedia, which catalogs the CPLR rules that govern New York discovery practice.

What changes can a witness make on an errata sheet?

The text of CPLR 3116(a) allows changes “in form or substance,” which on its face is broad. In practice, courts and litigators sort errata-sheet changes into three categories.

1. Typographical and transcription fixes. Misspelled names, transposed numbers, obvious court-reporter errors. These are routine and almost never contested. A witness who changes “Route 109” to “Route 110” because the reporter misheard the answer is correcting an error in the record, not in the testimony.

2. Clarifying changes. The witness’s testimony as transcribed is technically accurate but ambiguous, and the errata sheet adds context or sharpens what was meant. These are usually accepted, especially when the witness gives a coherent reason — for example, “I said ‘we’ but meant ‘my employer,’ not me personally.”

3. Substantive changes that contradict prior testimony. The witness testified one way at the deposition and now wants the record to say something else. This is where errata-sheet practice gets contested. Courts in New York and elsewhere routinely scrutinize substantive contradictions, especially when:

• The change appears to respond to a pending or anticipated summary judgment motion.
• The change reverses a damaging admission.
• The change has no plausible explanation other than litigation strategy.

Litigators sometimes call this the “errata-sheet cleanup” problem: a witness who said something harmful at deposition tries to rewrite the record after the fact. Opposing counsel can — and almost always will — use both versions of the testimony to attack the witness’s credibility at trial.

Can errata-sheet changes be used to avoid summary judgment?

This is the practitioner question. The general answer in New York is no — at least not reliably, and not without a real reason for the change.

Two doctrines collide here. On one hand, the sham affidavit doctrine bars a party from defeating summary judgment by submitting a self-serving statement that contradicts the party’s own prior sworn deposition testimony, where the contradiction is unexplained and appears designed solely to manufacture a fact issue. New York courts apply the same skepticism to post-deposition errata-sheet changes that operate as a “second affidavit.”

On the other hand, where the original testimony and the errata-sheet correction both remain in the record and the conflict between them is genuine, the dispute is one of credibility, and credibility issues are reserved for the jury. They cannot be resolved on a summary judgment motion.

The Second Department applied that second principle in Pollina v Oakland’s Rest., Inc., 2012 NY Slip Op 03991 (2d Dept. 2012), holding:

“[T]he 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’” (quoting Williams v O & Y Concord 60 Broad St. Co., 304 AD2d 570, 571; see Breco Envtl. Contrs., Inc. v Town of Smithtown, 31 AD3d 359, 360; Surdo v Albany Collision Supply, Inc., 8 AD3d 655).

Two takeaways for litigators:

• A defendant moving for summary judgment generally cannot rely on the original deposition testimony alone when the plaintiff has filed an errata sheet that contradicts it. The conflict itself defeats the motion under Pollina.
• A plaintiff who submits a contradictory errata sheet gets to trial, but does not “win” — the inconsistent testimony will be exposed on cross, and the credibility hit is often severe.

The practical lesson is that errata sheets are a powerful tool for preserving fact issues, but a costly one. The witness whose testimony swung 180 degrees between the deposition and the correction sheet has a credibility problem that no jury argument can fully repair.

Deposition transcript vs. errata sheet — what’s the difference?

These are two different documents that serve two different functions in the same proceeding.

• The deposition transcript is the verbatim record of what was said at the deposition, prepared by a court reporter. It includes every question, every answer, all objections, and any colloquy. It is the official record of the testimony.
• The errata sheet is the witness’s appendix — a list of changes the witness wants the record to reflect, each accompanied by the witness’s stated reason, all signed before a notary.

The errata sheet does not replace the transcript. The transcript stays in the file as originally prepared by the reporter. The errata sheet is appended to it. Both documents are produced together, and opposing counsel sees both.

At trial, either side can read both versions to the jury and ask the witness to explain the change. This is why an errata sheet is not a “do-over.” The original answer never goes away.

Practical guidance — reviewing your transcript and signing the errata sheet

For witnesses going through this process for the first time, the procedure is straightforward but the stakes are real. A few practical points:

• Read the transcript carefully and within the 60-day window. The clock starts when the transcript is submitted, not when you happen to open the envelope.
• Mark transcription errors as you go. Spelling of names, place names, dates, numbers — anything where the reporter could plausibly have misheard.
• Distinguish “I misspoke” from “I want to say something different now.” The first is what an errata sheet is for. The second is a different problem and almost always creates a credibility issue.
• Give a real reason for each change. “Misstatement” or “to clarify” is acceptable for genuine slips. A change with no explanation, or with a hand-wave reason, will be challenged.
• Sign before a notary. An unnotarized errata sheet is procedurally defective and does not satisfy CPLR 3116(a).
• Talk to your lawyer before signing. This is especially important if any change is substantive or relates to liability, damages, or a known disputed fact in the case.

In a personal injury case, the errata-sheet review is often the last meaningful chance the witness gets to influence the discovery record before motion practice begins. Treat it accordingly.

Frequently Asked Questions

What is an errata sheet in a deposition?

An errata sheet is the written list of corrections a deposition witness submits after reviewing their transcript. Under New York CPLR 3116(a), the witness can record changes “in form or substance,” must give a reason for each change, and must sign the sheet before a notary. The errata sheet is appended to the original transcript; it does not replace it.

How long do I have to submit an errata sheet in New York?

CPLR 3116(a) gives the witness 60 days from the date the transcript is submitted to read it, mark any changes, state the reason for each change, and sign and return it before a notary. If the witness fails to sign and return the deposition within 60 days, it may be used at trial and on motion practice as fully as though it had been signed.

Can I change my deposition testimony with an errata sheet?

Yes, but with limits. Typographical and transcription fixes are routine. Clarifying changes are usually accepted when the reason is coherent. Substantive changes that contradict prior sworn testimony are scrutinized — opposing counsel will use both the original answer and the errata-sheet change at trial to attack credibility, and courts apply the sham-affidavit doctrine to changes that appear designed solely to manufacture a fact issue and defeat summary judgment.

What happens if I don’t return the errata sheet?

Under CPLR 3116(a), if the witness fails to sign and return the deposition within 60 days of submission, the deposition may be used as fully as though it had been signed. Refusing to sign does not erase the testimony — it locks in the transcript exactly as the court reporter prepared it, with no corrections.

Can the other side use my errata sheet against me?

Yes. The errata sheet is part of the discovery record. Opposing counsel sees every change and every stated reason. At trial, the other side can read the original deposition answer to the jury, then read the errata-sheet change, and ask the witness to explain the difference. Inconsistencies between the two are a standard cross-examination tool.

Is the errata sheet part of the official deposition transcript?

The errata sheet is appended to the official transcript but does not replace it. The original verbatim record stays in the file as the court reporter prepared it. The errata sheet sits with it as the witness’s permitted corrections under CPLR 3116(a). When the deposition is offered into evidence or used on a motion, both documents come in together.

Talk to a Long Island attorney about your deposition or errata sheet

The 60-day window under CPLR 3116(a) is unforgiving, and a substantive errata-sheet change in a personal injury case can shape the rest of the litigation. The Law Office of Jason Tenenbaum, P.C. handles discovery disputes, deposition strategy, and motion practice across Long Island and New York City courts. For broader background on New York civil procedure and discovery rules, see our legal encyclopedia.

Initial consultations are free. Call (516) 750-0595 to talk to an attorney before you sign an errata sheet that could affect your case.

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