Quick Tips, Exhausting Deponent’s Knowledge, DC Trial, Vol. XII, No. 4 (Winter 2014).

For the next two columns, I will be discussing two different aspects of depositions. This column concerns techniques for exhausting the knowledge of a deponent.

Occasionally, we depose witnesses who testify that they don’t have the information we seek, or don’t know the answers to our questions, when our instincts tell us that they should have this information. This can arise with corporate or entity deponents and other witnesses who favor our opponents. With such a witness, we want to maximize the potential for getting useful information while minimizing the ability of the witness to surprise us with different information at trial. For example, you represent a plaintiff who slipped and fell on a wet floor at an apartment complex. The plaintiff claims that there was no wet floor sign anywhere in the vicinity before he fell. The defendant management company claims that before plaintiff fell, its janitor placed a wet floor sign in the area where plaintiff fell in a location that was visible to plaintiff had he been paying attention. You depose the corporate designee for the management company and ask him if the management company had in effect a policy^[1] regarding the placement of wet floor signs. He states that he thinks there was a written policy, but he can’t locate it. Below are some questions you could ask to exhaust the topic and attempt to minimize any effort to effectively modify this answer at trial:

–Q: Did you ever know the answer?

–Q: Did you tell anyone?

–Q: Who might you have talked to about this?

–Q: Could you have written a memorandum or note about it?

–Q: Where would it be?

–Q: Who did you send it to?

–Q: Do you know if anyone else knows (or knew)?

–Q: What other writings or documents might contain this information?

–Q: Is it in writing…on a computer…in an e-mail?

–Q: What have you heard about it?

–Q: Where did you hear it?

–Q: Who might know where to find this information?

–Q: Where would that person be?

–Q: If your life depended on finding this information tomorrow morning, where would you look?

–Q: …who would you ask?

–Q: Do you understand that if you find the answer to this question or remember what it is, you should bring it to your lawyer’s attention so he can get the answer to me?

–Q: You understand that this is the only chance I get to question a representative of your company before trial?

–Q: So you can appreciate that it is important to me and Mr. Plaintiff to get your company’s best information today at this deposition?

–Q: That is why I sent your company’s attorney a deposition notice requesting testimony on this topic over a month ago.

–Q: And you understand that you are speaking for your company.

–Q: And that your answers may bind your company.

–Q: [Mark as exhibit] You reviewed that deposition notice, marked as deposition exhibit no. ~ before coming here?

–Q: And the best answer you can give me is…?

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If the key topic arises from an event or conversation and concerns an eyewitness or participant:

–Q: Did anything else happen?

–Q: Was anything else said?

–Q: Did you remember anything else?

–Q: Are you sure that’s all you remember/saw/heard?

–Q: Have you told me everything you know about X?

–Q: Regardless of the source – that is, from anything anyone has told you or anything you have read or anything from your own observations – have you told me everything you know about X?

–Q: Now that you have told me everything you know, regardless of the source of your knowledge about X, is there any person who could provide you with more information about X? If so, please identify that person?

–Q: Is there anything you could look at that would provide you with more information about X?

–Q: Is there any writing that would provide you with more information about X?

–Q: You understand that this is the only chance I get to question you before trial?

–Q: You understand that it is important to Mr. Plaintiff and me to get your best information today at this deposition?

* * *

Finally, reserve the right on the record to reopen the deposition if new information comes to light. Using this method, if the trial judge allows new testimony at trial over your objection, you can show that you were never provided with the new information and then impeach the witness using his deposition transcript. Then you can argue in closing that they have played “dirty pool” with this case.

* * *

If you have any ideas that you think would work in this space, please email me at eric@stravitzlawfirm.com. Although I cannot guarantee that your ideas will make it into the column, I’ll certainly appreciate hearing from you.

^[1] Also use: protocol, procedure, directive, instruction, rule and any other similar terms.