Errata Changes to Deposition Testimony

Site Admin
Posts: 11757
Joined: Tue Jul 26, 2005 4:15 am

Errata Changes to Deposition Testimony

Postby Administrator » Mon Sep 29, 2014 11:22 pm

FN3. More than three months after receiving a copy of her deposition transcript, and only two weeks before the dispositive motion deadline of June 15, 2007 in this case, Plaintiff submitted an errata sheet in an effort to change approximately 193 instances of testimony in her deposition. See February 26, 2008 Order [Docket Item 39]. In her February 26, 2008 Order, Magistrate Judge Donio granted Defendant's motion to strike Plaintiff's errata sheet. The Court does consider the contents of Plaintiff's stricken errata in deciding the instant motion.Plaintiff also submitted as evidence in opposition to Defendant's motion numerous handwritten pages of what Plaintiff's counsel states are Plaintiff's personal notes that she took over the course of her employment. (Pl.'s Br. Ex. I.) Plaintiff seeks to use these notes as evidence that the events referenced in the notes took place. To the extent that Plaintiff relies on the notes “to prove the truth of the matter[s they] assert[ ],” Fed.R.Evid. 801(c), the Court agrees with Defendant that the notes are hearsay. Because “hearsay statement[s] ... not capable of being admissible at trial” cannot “be considered on a motion for summary judgment,” the Court likewise does not consider the contents of Plaintiff's notes on this motion. Philbin v. Trans Union Corp., 101 F.3d 957, 961 n. 1 (3d Cir.1996) (internal quotations and citations omitted).

Gilmore v. Federated Dept. Stores, Inc.
Slip Copy, 2008 WL 687260
March 11, 2008


Hence, plaintiff should have introduced an affidavit, sworn, under oath, on personal knowledge, signed and Notarized. See form affidavits; use detailed statements of facts and attach supporting documents.


However, this hearsay statement cannot be admitted for the purpose of establishing the truth of the Commissioners' alleged hostility. See Philbin v. Trans Union Corp., 101 F.3d 957, 961 n. 1 (3d Cir.1996) (inadmissible hearsay cannot be considered at summary judgment).

Tranter v. Crescent Tp., Slip Copy, 2007 WL 3274158, 183 L.R.R.M. (BNA) 2119, W.D.Pa., November 05, 2007 (NO. 2:06-CV-355)


An affidavit “shall set forth such facts as would be admissible in evidence.” Fed. R. Civ. P. 56(e). Hearsay statements that would be inadmissible in court, therefore, cannot be considered in deciding a motion for summary judgment unless the out-of-court declarant could later present that evidence through direct testimony. E.g., Philbin v. Trans Union Corp., 101 F.3d 957, 961 n. 1 (3d Cir.1996); Williams v. Borough of West Chester, Pa., 891 F.2d 458, 466 n. 12 (3d Cir.1989). Defendants argue that the statement of the unidentified dispatcher to Defendant Cerski that Arthur Breese's car was not the one reported as stolen, which is included in paragraph twelve (12) of Mr. Brese's affidavit (Exhibit A) is inadmissible hearsay. Plaintiff responds that the statement is not hearsay because it is not offered to prove the truth of the matter asserted, but rather to demonstrate that the statement was made, in an affidavit to which Defendant Ashley Borough had access at the time it chose to promote Defendant Cerski to police chief. The statement is relevant for this purpose because it tends to show that Cerski was promoted despite allegations that he had engaged in unconstitutional behavior by stopping a car without probable cause or reasonable suspicion. Therefore, as evidence that the city of Ashley was made aware of the allegations of Defendant Cerski's unconstitutional conduct prior to promoting him, the statement in Arthur Breese's affidavit will not be stricken from the record for purposes of deciding the motion for summary judgment.

Coleman v. Cerski
Slip Copy, 2007 WL 2908266
October 04, 2007

David A. Szwak
Bodenheimer, Jones & Szwak, LLC
416 Travis Street, Suite 1404, Mid South Tower
Shreveport, Louisiana 71101
318-424-1400 / Fax 221-6555
President, Bossier Little League
Chairman, Consumer Protection Section, Louisiana State Bar Association

Return to “Evidentiary Issues in FCRA Cases”

Who is online

Users browsing this forum: No registered users and 3 guests