Episode 114 - Opting NOT to Reword an Allegedly Ambiguous Question

Ever run into deponents who pretend they don't understand even the simplest questions? Of course you have. (Who hasn't?) Today, Jim Garrity explains why you might not want to continue rewording questions for such slippery deponents, instead using their sham "confusion" against them to attack their credibility (or even to seek sanctions).SHOW NOTESSkyline Advanced Tech. Servs. v. Shafer, No. 18-CV-06641-CRB-RMI, 2020 WL 13093877, at *4 (N. D. Cal. July 14, 2020), report and recommendation adopted, No. 18-CV-06641-CRB, 2020 WL 13093878 (N. D. Cal. July 30, 2020) (“Shafer responded to a strikingly large number of questions posed to her by stating that she did not understand the question (some of which were so clear and simply phrased that it strains credulity to imagine that she in fact did not understand the question”; further recommending dismissal as a sanction because “Shafer's willful destruction of evidence combined with her unfortunate behavior at her deposition have effectively frustrated the public's interest in the expeditious resolution of this case, as well as the court's need to effectively manage its docket, thus, these factors weigh in favor of granting the requested sanction of dismissal”)Donelson v. Hardy, 931 F.3d 565, 568 (7th Cir. 2019) (affirming dismissal of lawsuit based in part on plaintiff’s unjustified claims that he did not understand deposition questions; court described Donelson's responses as “evasive and argumentative answers” enhanced by “dishonesty and false obtuseness”)Mewborn v. Abbott Lab'ys, No. CV-188732-DSF-PLAX, 2019 WL 8060095, at *1 (C. D. Cal. Oct. 7, 2019) (Additionally, plaintiff, “[a]ided by and taking cues from her attorney, ... repeatedly pretended not to understand simple questions, refused to provide straightforward responses, and/or feigned an inability to read documents throughout her deposition”)Xiaobin Song v. Ming Ying Wu, No. B-202427, 2008 WL 4140833, at *4 (Cal. Ct. App. Sept. 9, 2008) (describing as credibility issue defendant’s prior claim that she did not understand English, while in trial answering questions even before they were interpreted, even though questions sometimes contained sophisticated English terms)Johnson & Johnston Assocs., Inc. v. R.E. Serv. Co., No. C 97-04382 CRB`, 1998 WL 908925, at *5 (N.D. Cal. Dec. 23, 1998), rev'd, 285 F.3d 1046 (Fed. Cir. 2002) (describing at “litigation misconduct” differences in the witnesses answers - and ability to understand simple questions - in deposition and then at trial, and listing many examples)Vagenos v. LDG Fin. Servs., LLC, No. 09-CV-2672 (BMC), 2010 WL 1608877, at *2 (E.D.N.Y. Apr. 15, 2010) (rejecting claim deponent’s credibility should be questioned where examiner used technical terms that were likely confusing to the deponent; “This often-confusing line of inquiry at his deposition, in which plaintiff was ultimately entirely forthcoming about his past indiscretions, is not probative of his character for veracity”)Skyline Advanced Tech. Servs. v. Shafer, No. 18CV06641CRBRMI, 2020 WL 13093877, at *6 (N.D. Cal. July 14, 2020), report and recommendation adopted, No. 18-CV-06641-CRB, 2020 WL 13093878 (N.D. Cal. July 30, 2020) (“Shafer's response in opposition to Skyline's motion contains a surprisingly candid concession (which is surprising in light of the fact that she took such care to be remarkably evasive and highly uncooperative during her deposition)”)Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence; (b) Scope of Cross-Examination (which provides in part that “Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness's credibility”)Fed. R. Civ. P. 32 (“Using Depositions in Court Proceedings (a) Using Depositions. (2) Impeachment and Other Uses. Any party may use a deposition to contradict or impeach the testimony given by the deponent as a witness, or for any other purpose allowed by the Federal Rules of Evidence”)