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“I don’t know/recall” may be the best interrogatory or deposition answer you can get

I lectured last week to recent law school graduates about family law discovery. Part of this lecture discussed Rule 37(a)(3), SCRCP which reads: “Evasive or Incomplete Answer. For purposes of this subdivision an evasive or incomplete answer is to be treated as a failure to answer.”

I remarked this rule meant that they should not accept incomplete answers to discovery. Even evasive answers that fail to answer the question should lead to a motion to compel. However there is one type of evasive answer that I informed them I will gladly accept: the “I don’t know” response or its close relatives, “I don’t remember” and “I don’t recall.”

I begin my depositions with a script. Part of that script involves getting the deponent to agree with the following:

Sometimes, when I ask a question, you will have partial knowledge but not absolutely certain or complete knowledge. For example, if I asked you the temperature right now you couldn’t necessarily tell me the exact degree but you could give me an approximate answer and even if you couldn’t you probably know whether its really hot or really cold or somewhere in between. In that circumstance an answer of “I don’t know” is not appropriate but an answer giving a range or estimate based on your knowledge with an explanation that it’s a range or estimate is appropriate. Do you understand this?

My interrogatories now include standard language:

In answering these questions if you have any knowledge available to answer the question, a response indicating a lack of knowledge is not appropriate. Instead, please provide all available information to answer the question. A response indicating lack of knowledge is only appropriate if you have absolutely no information on the question being asked.

Questions engendering an “I don’t know” response after such warnings are a litigation gift. An absolute lack of knowledge on an important issue in the case is rarely accurate. However the witness or party has now claimed to have absolutely no knowledge. This means that party cannot challenge any assertion the other party makes without being impeached on his or her “no knowledge” response.

For example, assume the question is “when did you last use cocaine?” If one last used cocaine in the distance past, an accurate answer might be “I don’t recall the exact date but it was at least twenty years ago.” However an “I don’t know” response means they could have last used moments before their deposition and are high while being deposed. If, at trial, the party denies the possibility that he could have been high during his deposition, one can note that his deposition response was clearly inaccurate. If the response to “when did you last beat your wife?” is “I don’t know,” that husband cannot impeach wife on any date she claims for his last beating. If the answer to “when did you last help your child with his homework?” is “I don’t know,” one can argue he never helps the child with homework.

When parties are confronted with their lack-of-knowledge response, they will often try to explain that they gave this answer because they weren’t certain. This is where the script at the beginning of the deposition or the instructions as the beginning of the interrogatories are vital.  One can confront the party with the deposition script or interrogatory instruction to shut this nonsense down.

“I don’t know” (and its kissing cousins) may strike the answering party as a clever response, but the saying “too clever by half” comes to mind. The other party can use that response to give that question any answer that party wishes, and the answering party has lost the ability to counter that claim without undermining his or her own credibility. It is often more valuable to accept the evasive “I don’t know” response for exhumation at trial, than to force the answering party to provide an accurate answer.

Put Mr. Forman’s experience, knowledge, and dedication to your service for any of your South Carolina family law needs.

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