By Kevin A. Adams
*Updated from the original publication in the Litigation Journal, The Journal of the Section of Litigation of the American Bar Association, Vol. 45, No. 1 (Fall 2018).
It is unrealistic for any of us to remember all the minutiae from an event or series of events that took place several years ago. Still, some witnesses – often with the guidance of counsel – seem to have trouble recalling even the most obvious facts at deposition.
The phrases “I don’t recall” and “I can’t remember” become the go-to answers to any potentially challenging question. Incredibly, the mound of emails, contracts, and other exhibits shown to the witness does nothing to refresh her recollection. This gamesmanship can frustrate even the most seasoned of trial attorneys.
Don’t fret; this article explores several litigation tools and techniques that, if used properly, can help you overcome a witness’s selective recall at deposition.
Ask Proper Follow-up Questions
A deposition is a critical part of the discovery process in legal proceedings, and preparation is key to handling an evasive or forgetful witness effectively. The questioning attorney should come prepared with clear and direct questions, as poorly worded questions could leave the door open for the witness to offer different or “refreshed” testimony at a later time.
When dealing with a forgetful witness, the attorney should first try to refresh the witness’s memory through the use of exhibits and related questions. This will make subsequent impeachment efforts more effective, and show the trier-of-fact that the attorney made every effort to revive the witness’s memory during the deposition. Attempting to refresh the witness’s memory through relevant exhibits also prevents the witness from later claiming that these same documents were used to refresh their memory after the deposition.
If efforts to refresh the witness’s memory are not fruitful, the attorney should lock in the witness’s answer. This can be done through a series of follow-up questions designed to neutralize the witness and eliminate them, as much as possible, from being a factor at trial or summary judgment. Examples of such questions include asking the witness why they don’t remember, if there are any documents that can help them remember, or if they know of anyone who might know the answer.
These follow-up questions may prompt some follow-up of their own. For instance, if the witness identifies something that may refresh her recollection, explore what it is and why it was not reviewed before the deposition. If the item was not – but should have been – identified or produced in discovery, have the witness explain the omission. If the omission concerns a critical area of the witness’s testimony, it may be prudent to continue the deposition to give you an opportunity to flush out this new information before going forward.
Continuing to push the forgetful witness until all avenues have been exhausted is generally advisable. The memory should let the witness’s answers confirm there is nothing left to pursue before moving on. If the attorney is able to jar the witness’s memory, it is always better to hear the answer first at deposition than to be blindsided at trial.
Use the Witness’s Inability to Recall to Your Client’s Benefit
Now that you have locked-in a witness’s lack of knowledge on a topic, it’s time to use that admitted ignorance to your client’s benefit. The most obvious opportunities to do this are in connection with a motion for summary judgment and during cross-examination at trial.
Summary judgment is a critical stage in litigation where the moving party must demonstrate the absence of a genuine issue of fact, and if successful, the opposing party must prove the existence of a genuine issue of material fact. However, it is not uncommon for attorneys to use a witness who previously exhibited an utter lack of knowledge during deposition to create a triable issue of fact through a subsequent declaration or affidavit. To prevent this type of conduct, most courts enforce the “sham affidavit rule.”
Under this rule, a party cannot use an affidavit that contradicts prior deposition testimony to create an issue of fact. The Ninth Circuit in Yeager v. Bowlin explained that the rule applies to instances where a witness testifies at deposition that they cannot recall certain facts, but later recalls those facts in a declaration. The witness is still contradicting their prior testimony by changing it from “I don’t recall” to “now I remember.” In Yeager, the plaintiff’s inability to recall facts at deposition was seen as a “total refusal to provide substantive answers,” but the subsequent declaration recalled those same events with “perfect clarity.” The court found the plaintiff’s explanation for the newfound clarity to be “weak,” and the contrasting testimony led to the plaintiff’s declaration being struck from the record.
Enforcing the sham affidavit rule ensures that parties cannot use subsequent testimony to create a triable issue of fact and preserves the integrity of summary judgment as a screening tool for identifying sham issues of fact.
In a federal court, the moving party on summary judgment bears the initial burden of demonstrating the absence of a genuine issue of fact. If this initial burden is satisfied, it is then up to the opposing party to show that a genuine issue of material fact does exist. However, it is not uncommon for an attorney to attempt to create a triable issue of fact by using the same witness through a declaration or affidavit, even though the witness could not recall the same subject matter at the deposition. This conduct is generally prohibited by the “sham affidavit rule.”
Under this rule, a party cannot create an issue of fact by submitting an affidavit that contradicts their prior deposition testimony in a federal court. In Yeager v. Bowlin, 693 F.3d 1076, 1080 (9th Cir. 2012), the Ninth Circuit clarified that the sham affidavit rule extends to situations where a witness testifies at deposition that they cannot recall certain facts, but later recalls them in a declaration. This is because the witness is still contradicting their prior testimony by changing it from “I don’t recall” to “now I remember.”
In the Yeager case, the court found that the plaintiff’s inability to recall facts at deposition amounted to a “total refusal to provide substantive answers,” while their subsequent declaration recalled the same events with “perfect clarity.” The court also found the plaintiff’s explanation for their newfound clarity to be “weak,” which did not help their case. The Ninth Circuit explained that the sham affidavit rule exists to prevent a party from raising an issue of fact by submitting an affidavit that contradicts their own prior testimony, as this would greatly reduce the utility of summary judgment in screening out sham issues of fact. In this particular case, the court ultimately struck the plaintiff’s declaration from the record due to the contrasting testimony provided.
Although the sham affidavit rule had a significant impact in Yeager, it is important to note that the rule is limited and does not necessarily apply to every case involving a contradictory affidavit that seeks to clarify earlier deposition testimony. Instead, for the rule to be applicable, the court must make a factual determination that the contradiction is actually a sham and conclude that the inconsistency is clear and unambiguous. Declarations that merely elaborate upon, explain, or clarify prior testimony should not be excluded under the sham affidavit rule.
Many state courts, including California, have adopted a sham affidavit rule similar to the one discussed in Yeager. In California, this rule is commonly referred to as the D’Amico rule, originating from the California Supreme Court’s decision in D’Amico v. Board of Medical Examiners, 11 Cal.3d 1, 20–22 (1974). Similarly to federal court practice, California courts have demonstrated reluctance to apply the D’Amico rule strictly to exclude declaration testimony when other evidence is presented that credibly explains or contradicts the inconsistent statements made by the deponent.
Savvy attorneys often try to circumvent the sham affidavit rule by pinpointing documents that were used to refresh the witness’s memory in support of a declaration. To preempt this tactic, it is essential to utilize all relevant documents at your disposal during the deposition in your attempts to refresh the witness’s memory. If you are unable to refresh the witness’s memory using the same exhibits, it can weaken opposing counsel’s contrary argument and potentially justify the application of the sham affidavit rule.
Impeachment at Trial
The witness’s selective memory loss during the deposition can also serve as a means to impeach their inconsistent trial testimony. Impeachment through prior inconsistent statements typically involves three essential steps commonly known as the “three Cs” – confirm, credit, and confront.
First, it is important to obtain confirmation from the witness regarding the inconsistent testimony that you intend to impeach. This initial step brings the inconsistent testimony to the forefront for the trier of fact, setting the stage for highlighting the contrast. Utilizing questions such as “Today you stated…” or “Earlier in your testimony, you testified that…” should be effective in achieving this confirmation.
Next, it is crucial to establish credibility for the deposition testimony that will be presented. It is important to create the impression that the witness was truthful during the deposition, rather than solely during direct examination. This step serves two main objectives: (1) demonstrating the reliability and accuracy of the deposition testimony, and (2) laying the groundwork for introducing the deposition testimony as extrinsic evidence of the prior inconsistent statement.
To accomplish this second step, it is important to highlight several key details. These include specifying the date and location of the deposition, emphasizing the presence of a court reporter and the witness’s counsel during the deposition, underscoring the witness’s awareness that the testimony was given under oath and subject to the penalty of perjury, noting that the witness had the opportunity to review and verify the accuracy of the testimony after the deposition, and mentioning that either no changes were made or if changes were made, the rest of the deposition remained unchanged. These factors contribute to establishing the credibility of the deposition testimony.
Lastly, it is crucial to confront the witness by reading the inconsistent deposition testimony aloud. Prior to reading from the transcript, it is advisable to seek the court’s permission to read the specific section of the witness’s deposition testimony that includes both the relevant question and answer. Requesting permission with a statement such as “Your Honor, I respectfully request permission to read from page 56, lines 10-15 of the witness’s deposition testimony” should help secure the court’s approval for reading the transcript into the record. Once granted, proceed to read the testimony and then transition to the next line on questioning.
If you find yourself needing to call the witness on direct examination, the approach to highlighting the witness’s lack of recall at deposition requires a slightly different procedure.
In such situations, your goal is to elicit a response from the witness that aligns with her deposition testimony. For example, you may ask, “You don’t recall any discussions with ABC Corp. before signing the contract, correct?” If the witness unequivocally affirms this statement, there is no need to proceed further. However, if the witness provides a response that falls short of complete agreement, you should request permission from the judge to read the witness’s inconsistent deposition testimony, including both the question and answer, in court (as previously described). It is also advisable to establish credibility for the deposition testimony by employing similar techniques outlined earlier.
It is crucial to note that the question used to impeach the witness at trial should closely mirror the question asked during the deposition that resulted in the “I cannot recall” response. Even a slight variation in the wording may lead to a different response and can give rise to objections from opposing counsel, claiming improper impeachment. By utilizing the same question in both proceedings, you can mitigate these issues and ensure consistency throughout.
Having the knowledge and skill to impeach the direct testimony of an adverse witness by systematically presenting the witness’s prior lack of knowledge on the same subject matter can be an immensely powerful tool. When executed effectively, this technique has the potential to significantly impact the outcome of a case in favor of your client.
Motion to Compel and Request for Monetary Sanctions
In situations where the witness is intentionally refusing to recall even fundamental facts, it may be crucial to promptly raise this discovery abuse to the court’s attention. This becomes particularly significant when the witness’s expected testimony, if properly obtained, is essential for advancing your client’s position in the case. In such circumstances, it is advisable to contemplate filing a motion to compel, accompanied by a request for monetary sanctions.
If your questions were appropriate in both form and substance, and you made a sincere attempt to refresh the witness’s memory, while it is evident from the transcript that the witness was intentionally avoiding answering the questions, obtaining a favorable ruling on a motion to compel should be relatively straightforward. This would enable you to resume the deposition at a later date, with the witness and their attorney receiving a reprimand from the court for their evasive responses.
In cases where it is provided for in the court’s rules, seeking monetary sanctions to cover the costs incurred in filing the motion to compel is a common practice. Evasive discovery responses, such as repeatedly stating “I don’t recall,” have been regarded by the courts as a clear invitation for imposing sanctions. Therefore, it is reasonable to expect that additional relief in the form of monetary sanctions will be granted, ensuring that the party responsible for the evasive tactics bears the financial burden associated with the motion. Quoting Deyo v. Kilbourne, 84 Cal. App. 3d 771, 783 (1978); Stein v. Hassen, 34 Cal.App.3d 294, 300, fn 6 (1973).
Request for Evidentiary and/or Terminating Sanctions
Unlike an award of monetary sanctions, evidentiary and terminating sanctions are far more difficult to achieve, and typically require a history of discovery abuse by the other side.
In California, for example, terminating sanctions can only be granted if there is a willful violation of a court order along with a history of abuse. While a prior violation of a discovery order is not mandatory for issuing evidentiary sanctions in California, the moving party still needs to establish a consistent pattern of willful discovery abuse that ultimately results in the unavailability of crucial evidence.
The evasive responses of a witness at a single deposition would not likely give rise to these heightened sanctions.
Motion in Limine
Another litigation tool that is not likely to deliver the desired result is in this area is the motion in limine.
Before the trial, some attorneys employ motions in limine to request that the court prevent a witness from providing testimony that contradicts their deposition testimony. These motions are typically based on the argument that allowing such testimony would prejudice the moving party since it was not disclosed during the discovery process, or that it would impermissibly contradict a party admission. While filing such a motion can be a useful strategy to inform the judge about these concerns before the trial, it is unlikely to be granted. Instead, a pretrial report or statement would be a more suitable method to bring these anticipated issues to the court’s attention and highlight them for trial.
As succinctly stated by the court in W.R. Grace & Co. v. Viskase Corp., No. 90 C 5383, 1991 WL 211647, at *2 (N.D. Ill. Oct. 15, 1991), a corporation is indeed “bound” by its Rule 30(b)(6) testimony, much like any individual deposed under Rule 30(b)(1) is bound by their testimony. However, this simply means that the witness has taken a particular position at a specific moment in time. It does not imply that the witness has made a definitive judicial admission that conclusively decides an issue. Deposition testimony serves as evidence, and like any evidence, it can be explained or contradicted as necessary.
The court in W.R. Grace & Co. v. Viskase Corp., went on to clarify that any trial testimony that contradicts the earlier deposition testimony is susceptible to impeachment, rather than being addressed through a motion in limine. Consequently, a motion in limine is not typically an effective means of preventing a witness from modifying their testimony at trial if it differs from their earlier deposition.
It is unrealistic to expect a witness to remember every single detail of a business relationship or all the specifics of related conversations. Nevertheless, the “I don’t recall” response should only be given after the witness has made a sincere and genuine effort to recollect the information. If the witness conveniently claims a lack of memory in order to avoid crucial questions during a deposition, it is your responsibility to counteract and undermine such responses.
Utilize the strategies discussed in this article to effectively capture and leverage the witness’s responses. When executed correctly, evasive deposition testimony can actually strengthen your client’s position in the case. So, the next time your questioning elicits the familiar refrain of “I don’t recall,” view it as an opportunity rather than a setback, and harness it to your client’s advantage. With the right approach, these seemingly unhelpful responses can prove to be a valuable gift.
* * *
This article was prepared by Kevin A. Adams, a Partner at Mortenson Taggart Adams LLP and head of the firm’s Franchise and Distribution practice group. He represents and counsels franchisors, licensors, manufacturers, and distributors on their business litigation needs, including state and federal franchise laws, intellectual property rights, California employment laws, unfair competition, and related trade regulation matters.
Disclaimer: While every effort has been made to ensure the accuracy of this article, it is not intended to provide legal advice as individual situations will differ and should be discussed with an experienced franchise lawyer. For specific technical or legal advice on the information provided and related topics, please contact Mr. Adams at email@example.com.