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USTPO – When a Deposition Transcript has an Error, What Do You Do?

While reading the rules of the United States Patent and Trademark Office regarding depositions, I came across 37 CFR 2.125(b) and was very surprised to read that if there are typographical or spelling errors in a deposition transcript, the court reporter, aka deposition officer, is to redo the transcript with the corrections. Errata sheets are not accepted by the USTPO. If the corrections are voluminous, the witness may handwrite the correction on the transcript above the original text and initial the correction. BUT “material changes in the text are NOT permitted.”

37 CFR § 2.125(b) The party who takes testimony is responsible for having all typographical errors in the transcript and all errors of arrangement, indexing and form of the transcript corrected, on notice to each adverse party, prior to the filing of one certified transcript with the Trademark Trial and Appeal Board. The party who takes testimony is responsible for serving on each adverse party one copy of the corrected transcript or, if reasonably feasible, corrected pages to be inserted into the transcript previously served.

A party that takes testimony is responsible for having any errors in the transcript corrected, on notice to each adverse party, prior to the filing of the certified transcript with the Board.

If the witness, upon reading the transcript, discovers that typographical or transcription errors need to be corrected, or that other corrections are necessary to make the transcript an accurate record of what the witness actually said during the taking of his or her testimony, the witness should make a list of all such corrections and forward the list to the officer before whom the deposition was taken. The officer, in turn, should correct the transcript by redoing the involved pages.

Alternatively, if there are not many corrections to be made, the witness may correct the transcript by writing each correction above the original text that it corrects, and initialing the correction. Although parties sometimes attempt to correct errors in transcripts by simply inserting a list of corrections at the end of the transcript, this is not an effective method of correction. The Board does not enter corrections for litigants, and the list of corrections is likely to be overlooked and/or disregarded.

While corrections may be made in a transcript, to make the transcript an accurate record of what the witness said during the taking of his or her testimony, material changes in the text are not permitted — the transcript may not be altered to change the testimony of the witness after the fact.

If corrections are necessary, the party that took the deposition must serve on every adverse party a copy of the corrected transcript or, if reasonably feasible, corrected pages to be inserted into the transcript previously served.

If errors are discovered after the transcript has been filed with the Board, a list of corrections, signed by the witness, should be submitted to the Board (and served on every adverse party), together with a request for leave to correct the errors. Alternatively, the parties may stipulate that specified corrections may be made. If the request is granted, or if the parties so stipulate, the party that took the deposition should file a substitute, corrected transcript with the Board.

 

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