Remedies for the evasive deposition witness

Posted Thursday, September 18th, 2014 by Gregory Forman
Filed under Litigation Strategy, Not South Carolina Specific, Of Interest to Family Law Attorneys

Few areas of litigation practice are more frustrating than deposing an evasive, hostile or obnoxious witness. In the courtroom setting, a witness who acts these ways will be admonished by a judge to stop. If the witness continues that behavior, criminal contempt–sending the witness briefly to jail until he or she behaves–is an available sanction. Further, since the factfinder is witnessing such behavior firsthand, it will act to the litigants’s detriment if the witness is a litigant.  A deposition setting–taking place outside of the courtroom and outside of a judge’s supervision–lacks these safeguards. A witness who wants to evade questions and attack the deposing attorney can do so without that attorney having any ability to stop the behavior immediately.

However there is a remedy–actually a surprisingly powerful remedy: the motion to compel. Typically these are used when an opposing party will not answer paper discovery (interrogatories; requests for production; requests for admissions) or when a witness flat-out refuses to answer questions at a deposition. However Rule 37, SCRCP, which governs motions to compel, states at subsection (a)(3), “an evasive or incomplete answer is to be treated as a failure to answer.” Further Rule 37(b) allows the depositing attorney to adjourn the deposition in order to file a motion to compel.

I recently took the deposition of an opposing party. Over five hours he refused to answer questions, evaded answering my questions, argued with my questions, demanded to know why I was asking these questions, and insulted me for asking them. After enduring hours of his evasive and rude treatment we adjourned the deposition and I filed a motion to compel. Initially I had only intended to file a motion to compel him to answer the questions he refused to answer, but a review of Rule 37 and some Federal case law indicated I could also seek sanctions for his evasive and argumentative responses.

As a result of that motion, this party was not only ordered to pay my fees and costs for the motion but also my fees and costs (including court reporter and transcription costs) for his deposition. He was also ordered to provide non-evasive, non-argumentative answers to my questions when his deposition resumes.

Having such an order in place when his deposition resumes is an extremely powerful tool. If he continues to be argumentative and evasive he can be held in contempt of court. Rule 37(b)(2)(D). The court can also strike his pleadings, prevent him from testifying, or deem certain facts to be taken to be established. Rule 37(b)(2)(A-C). Now, if he evades or argues with my questions, I only need to remind him of the court’s order and the available sanctions for his continued violation. If he persists in such behavior I can file a second motion to compel and seek the sanctions noted above.

Too often depositions of recalcitrant witnesses are the metaphorical equivalent of nailing jell-O to the wall.  It is frustrating to see one’s time and one’s client’s money being wasted while a witness smugly evades answering questions.  Deposing uncivil witnesses is even worse–especially when attorneys are subject to discipline for meeting incivility with incivility. However, one does not have to put up with such deposition behavior. When witnesses become evasive or insulting, it is simply better to adjourn the deposition and file a motion to compel.

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