1. Recognize nonresponsive answers. A nonresponsive answer may have nothing to do with the question or may skirt the question. For example,
Q: How old are you? A: The light was red.
Q: Did you see the defendant run into the plaintiff? A: I was there.
2. Object or move to strike the nonresponsive answer if it’s admissible or could be cured. You must object to preserve your objection and motion to strike at trial if the answer is otherwise admissible or has defects that could be cured at the deposition. For example, if you ask: “how old are you?” and the deponent answers “the light was red” and you don’t object, the opposing party may be able to introduce deponent’s answer at trial if deponent is unavailable, even though it was nonresponsive.
3. Don’t bother to object if the answer is not otherwise admissible. See CCP §2025.460(c).
4. Ask again. In addition to, or instead of, objecting consider taking these actions:
- Explain that you need a response to your question;
- Refocus the deponent’s attention by asking him or her to listen to the question; and
- Rephrase the question to try to get an answer.
5. If all else fails, move to compel. If you’re unsuccessful in eliciting a responsive answer, consider either proceeding and later moving to compel (CCP §§2025.460(e), 2025.480) or adjourning and moving to compel, if you need the answer to continue examination. If you go with the latter route, make sure to state on the record something like: “The deposition is adjourned to bring a motion to compel, and it is not completed on other matters,” to avoid any dispute over which areas of inquiry you may go into when deposition resumes. But unless the unanswered question is so important that it’s unproductive to continue the deposition, the best practice is to complete the deposition on as many matters as possible. Not only is it risky to choose to adjourn (if the court denies the motion to compel, the deposition could be over due to the one-deposition rule (CCP §2025.610)), but it’s also more economical to seek one motion to compel answers for all inquiries the deponent failed to answer.
If you’re in a deposition with obstreperous, obstructionist opposing counsel, you can seek appointment of a discovery referee (usually a retired judge) who can make rulings during the deposition itself. The presence of a referee has a tendency to change an atmosphere of confrontation to one of evidence gathering.
For more on dealing with nonresponsive deposition answers, turn to CEB’s California Civil Discovery Practice §§6.75-6.82. And get step-by-step guidance on handling the entire deposition process in CEB’s Handling Depositions (Action Guide).
Other CEBblog™ posts on handling depositions:
- 4 Tips for Handling Exhibits at Deposition
- Handling Nonverbal Depo Responses
- How to Handle Abusive Deposition Tactics
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