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March 1, 2018 by Katrina CarrollDownload PDF


"I Don't Recall": Witness Memory Lapses and Contempt of CourtKatrina  Carroll

Testifying at a deposition can be a stressful experience. Witnesses must testify under oath before many lawyers, with a court reporter transcribing everything they say. Sometimes depositions are even videotaped. It is no wonder that witnesses can be nervous and want to be careful to make sure their testimony is not misinterpreted or later used against them.

What can be even more stressful for the witness are instructions from their own attorneys, who, along with many other details, will tell them not to “guess” or “speculate” on their answers. Lawyers may also tell witnesses that if they don’t remember certain events, they can simply say “I don’t recall.” In general, such instructions are not improper. A witness cannot, however, repeatedly answer “I don’t recall” to avoid truthfully answering questions. Being deliberately obstructive could result in a contempt finding, sanctions and even criminal punishment.

Any deponent is under an obligation to provide truthful and accurate testimony under oath. In civil cases, Federal Rule of Civil Procedure 37(a)(4) treats an evasive and incomplete answer in discovery as equivalent to no answer at all. Rule 37 authorizes courts to impose sanctions for such violations, and courts have routinely used this Rule to sanction witnesses suffering from extensive memory lapses. See In re Weiss, 703 F.2d 653, 662 (2d Cir. 1983) (finding that “testimonial obduracy” may come in several forms, including “respond[ing] in a way that avoids providing information, as, for example, by denying memory of the events under inquiry, denying acquaintance with targets of the inquiry, or denying knowledge of facts sought to be elicited” or “purport[ing] to state informative facts in response to the questions while in fact testifying falsely) (collecting cases); JFB Hart Coatings, Inc. v. AM Gen. LLC, 764 F. Supp. 2d 974, 988 (N.D. Ill. 2011) (stating “It is insulting to the Court to claim that Beedie could not remember any of the alterations he made to nearly 122 documents, except for possibly removing some price information, because nearly seven months had passed between the time he created Exhibit A and his deposition and he did not have the specific documents in front of him,” and ordering an evidentiary hearing on a motion for default); Gibbs v. Union Pac. R. Co., No. 08-CV-00355JPG, 2009 WL 2143772, at *6 (S.D. Ill. July 15, 2009) (ordering sanctions where deponent had, among other conduct, repeatedly said he had no recollection of events surrounding his complaint); Andrews v. Holloway, 256 F.R.D. 136, 141-45 (D.N.J. 2009) (finding deponent in contempt where he gave false and evasive answers).

Courts have also recognized that witnesses have a duty to prepare themselves for a deposition with reasonable diligence. A witness cannot simply decide not to familiarize themselves with relevant facts and then appear at a deposition and answer “I do not recall” repeatedly to counsel’s questions. Attorneys representing such witnesses need to be extraordinarily careful in these situations because of the ethical duty imposed on lawyers to ensure that witnesses are adequately prepared. In questionable cases, lawyers should, at the very least, speak with their witness during a break in the deposition to make an effort to correct the testimony. The failure to do so could be just as bad for the attorney as the witness. Both attorneys and witnesses need to recognize that they cannot frustrate the discovery process with feigned confusion and lack of memory.