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No substantive changes to testimony via errata sheet

No substantive changes to testimony via errata sheet

Virginia Lawyers Weekly//May 2, 2023//

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Where a plaintiff attempted to substantively change her deposition testimony via an errata sheet, the errata sheet was stricken. The changes constituted improper substantive revisions that materially altered her testimony.


This class action litigation centers on the scope of International Service Assessment, or ISA, fees charged by Navy Federal Credit Union for transactions made outside of the United States. Plaintiffs, a class of Navy Federal accountholders, allege that defendant breached its contractual obligations by charging ISA fees for transactions made while the accountholder was in the United States. Thus, at the heart of the dispute is the scope and meaning of a transaction that is made “outside of the United States.”

Defendant moves to strike the errata sheet from the Feb. 8, 2023, deposition of plaintiff Maria Hart. Hart’s errata sheet consists of three changes to her deposition testimony, each of which defendant seeks to strike. Defendant argues the three changes on Ms. Hart’s deposition errata sheet constitute improper substantive revisions that materially alter her testimony and are not permitted under Federal Rule of Civil Procedure 30 and relevant caselaw. Plaintiffs assert that the proposed changes are permissible clarifications of incomplete and confusing responses that do not accurately reflect Ms. Hart’s recollection.


Each of the three proposed changes in Hart’s errata sheet is plainly substantive and changes the meaning of her original testimony. With respect to all three changes, plaintiffs do not assert that the errata sheet seeks to correct typographical or transcription errors, and their claim that the three changes are “minor” is unavailing.

In altering the first two responses, the errata sheet introduces the word “abroad,” a term that Hart did not use in either of her original responses. As discussed above, at the crux of this litigation is the scope and meaning of when a transaction is made “outside of the United States.” Seemingly at issue in the first two responses addressed by the errata sheet is Hart’s understanding of what constitutes an international transaction. While the undersigned doubts that this testimony is dispositive to the litigation, the proposed changes on the errata sheet nevertheless impermissibly alter Hart’s original responses.

Hart’s third proposed change, if allowed, also would materially alter her response. Indeed, she seeks to change her answer entirely – from testifying that she learned about the litigation from “an email that I received” to the errata sheet version of “I saw an ad online, and I responded to the ad.” The proposed change is a completely different answer and plaintiffs’ argument that the new response corrects a mistake of fact is unpersuasive.

Further, while the errata sheet seeks to change Hart’s response in line 1 of page 134 of her original testimony (“It was in an email that I received”), the rest of the testimony on the remaining lines of page 134 continues to discuss “email” – using the term at least eight times – with Hart responding “Yes” four times.

Hart did not seek to change any of the other references to “email” on page 134. Thus, if Hart’s response in line 1 on page 134 was changed to instead state that she learned about the litigation by seeing an ad online and responding to that ad, the rest of the discussion about “email” on page 134 would not make sense.

The changes on Hart’s proposed errata sheet go beyond correcting typographical or transcription errors and veer into impermissibly altering her original testimony. Because the errata sheet consists only of the three changes at issue all of which are impermissible, the court strikes the entire errata sheet.

Defendant’s motion to strike errata sheet granted.

Morrow v. Navy Federal Credit Union, Case No. 1:21-cv-0722, April 19, 2023. EDVA at Alexandria (Vaala). VLW 023-3-214. 6 pp.

VLW 023-3-214

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