Deposition errata is often the source of mild-moderate disagreements. It's not uncommon to see complaints that an errata is really just an attempt to reform otherwise damaging testimony, rather than a mere correction of a misheard word. Occasionally the issue will be large enough to warrant a discovery dispute.
Less common, but not unheard of, is a dispute over the accuracy of a transcript of a Court hearing. To begin, unlike in depositions, the Court reporter normally does not formally request errata except in the case of trials. You get what you get and anything after that is in something of a procedural gray area. To the extent the parties do have errata disputes, there is no clear route to resolution. You can ask the reporter to review a recording (which they may or may not have depending on the proceeding and reporter), but if there is no recording or its unclear, you are in procedurally uncharted lands.
Indeed, although I've speculated about how one might raise transcript errata with the Court, I'd never seen it done -- Until this week!
The parties in Ecolab Inc. v. Reckitt Benckiser LLC, C.A. No. 23-519-GBW-SRF (D. Del. Oct. 28, 2024), attended a Markman hearing which was apparently unremarkable. Upon receiving the transcript however, the plaintiff found several alleged substantive mistakes, mostly consisting of changing "could" to "couldn't" and the like as in the below:
Id. at D.I. 89, Att. 1.
The parties apparently brought the issue to the reporter in the first instance who responded that the original transcript was correct (the defendant maintained that the original transcript was correct as well).
Luckily for the plaintiff, the parties were due to submit a joint status report in the time between the Markman hearing and ruling. There, the plaintiff raised the issue arguing that their errata was correct by comparing the current transcript to the their Markman presentation and briefing and submitting the proposed errata as an exhibit. The whole thing took about a page. The defendant responded that the status report was not the appropriate mechanism and noting that the reporter had rejected the errata as incorrect.
In her Markman R&R, Judge Fallon addressed the dispute:
The court has not relied on the four passages of the Markman transcript identified by Ecolab in issuing this Report and Recommendation. In preparing the Report and Recommendation, the court cross-referenced the joint claim construction brief, the joint appendices, the Markman hearing transcript, and the slide presentations proffered by the parties during the Markman hearing to achieve an accurate understanding of each side's respective position on the disputed issues. The court did not rely exclusively on the Markman hearing transcript. Therefore, the issue is moot.
Id. at 7.
Honestly, this is about how I would expect any such motion to go, especially since its unclear how the Court could possibly decide the issue in the absence of a clear recording to the contrary. It's worth noting, however, that the Court did not complain about the mechanism for raising the dispute, or about the argument generally, which should give some hope to those who might need to raise the issue in the future. It would be interesting to see how this could play out in a situation where the errata changes were to fact witness testimony as opposed to mere attorney argument, and thus more crucial to disputed issues. We'll let you know if it comes up.
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