Unexplained Errata Sheet Changes will not Stand
It has become common practice for attorneys to serve lengthy errata sheets after a client testifies in an attempt to alter the testimony. In Murillo v. The City of N.Y., after plaintiff’s deposition, he submitted an errata sheet listing forty-five correction. Plaintiff, who testified with the use of a Spanish interpreter failed to provide a translator’s affidavit for the errata sheet. The defendants moved to strike the errata sheet. Plaintiff cured the defect in his opposition to the motions by providing two sets of errata sheets, one in Spanish and one in English, together with an affidavit of a Spanish interpreter. However, the errata sheet was nonetheless found to be defective as it was not accompanied by explanations for some of the changes as required.
“[A] correction will be rejected where the proffered reason for the change is inadequate.” Id. Citing to Torres v. Bd. of Educ. of City of N.Y., 137 A.D.3d 1256, 1257 (2d Dep’t 2016). Plaintiff’s contention that the corrections were necessitated due to confusion in the translation of the testimony was found to be unsubstantiated by the record. The court noted that “that any confusion from the translation was cleared on the record — the questions were read back to plaintiff and there is no indication that he did not understand after the interpreter explained what was being asked. Moreover, there is no indication from the record that the adequacy of the interpreter was challenged by plaintiff’s counsel.” Id citing to Rodriguez v. Jones, 227 A.D.2d 220 (1st Dep’t 1996).
Litigants should not be afraid to contest errata sheets that do not explain the reason for the changes made. It is also important for the transcript to be clear in the instructions given to plaintiff that he should advise if he does not understand a question otherwise it will be deemed that the question was properly understood.
Thanks to Valeria Prizimenter for her contribution to this post.