703.01(n) Correction of Errors in Trial Testimony Deposition
37 C.F.R. § 2.125(c) 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. [ Note 1.]
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. [ Note 2.]
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. [ Note 3.]
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.
NOTES:
1. 37 C.F.R. § 2.125(c) (formerly 37 C.F.R. § 2.125(b)); Hewlett-Packard Co. v. Human Performance Measurement, Inc., 23 USPQ2d 1390, 1392 n.6 (TTAB 1991) (objection to corrections served four days after filing and less than two weeks prior to due date for reply brief overruled since remedy lies in requesting extension of briefing period rather than having Board exclude the evidence).
2. See Marshall Field & Co. v. Mrs. Fields Cookies, 25 USPQ2d 1321, 1325 (TTAB 1992) (any substantive changes made to testimony deposition on written questions would not be considered); Cadence Industries Corp. v. Kerr, 225 USPQ 331, 333 n.4 (TTAB 1985) (Board gave no consideration to response or corrected response when the correction, which changed the percentage of opposer's business income derived from licensing, was substantive); and Entex Industries, Inc. v. Milton Bradley Co., 213 USPQ 1116, 1117 n.2 (TTAB 1982) (change in testimony from "...designing that type of game..." to "...designing that Simon Says type of game..." was substantive in nature and not permitted). Cf. Hollywood Casino LLC v. Chateau Celeste, Inc., 116 USPQ2d 1988, 1996 (TTAB 2015) (on summary judgment, Board gave no consideration to a Fed. R. Civ. P. 30(b)(6) discovery deposition errata sheet because it resulted in substantive changes to witness’ testimony).
3. See 37 C.F.R. § 2.125(c) (formerly 37 C.F.R. § 2.125(b)). See also Hewlett-Packard Co. v. Human Performance Measurement, Inc., 23 USPQ2d 1390, 1392 n.6 (TTAB 1991).