September 04, 2022

Episode 103 -Lessons From The Front Lines: What Will 317 “Don’t Knows,” and 196 “Don’t Remembers,” Earn Your Client? (Hint: It Involves Jurors.)

20 minutes

In this episode, Jim Garrity spotlights a 107-page ruling, issued just three days ago, that offers a sharp reminder about the consequences to deponents who claim memory failure and who then follow up, at summary judgment time, with affidavits or errata sheets containing fantastically-improved recollections of key details. Garrity also discusses another brand-new ruling, likewise issued three days ago, that makes the same point. As always, he offers practical tips and insights - here, to help you avoid the fate suffered by litigants in those cases, which was to have their post-deposition affidavits, errata sheets, and declarations stricken.

As always, the case citations that are mentioned in the episodes or that support the topic appear below in the show notes.

Don't forget to check out the book on which this podcast is based, 10,000 Depositions Later: The Premier Litigation Guide for Superior Deposition Practice, 3d Ed. (470 pages), available everywhere you get your books

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SHOW NOTES

Luman v. Diaz, et al., 2022 WL 4001063, No. H-19-4920 (S. D. Tex. Sept. 1, 2022) (rejecting key portions of defendant’s declaration on summary judgment, where declaration appeared to be sham effort to fill in purported memory gaps of defendant at deposition; further rejecting purported defense expert report, which attempted to offer substantive testimony about defendant’s motive that defendant himself could not remember during deposition)

King v. Kings County Sheriff’s Office, 2022 WL 3999485, No. 1:20-CV-00943 (E. D. Calif. Sept. 1, 2022) (rejecting errata sheet from plaintiff’s expert, where entries changed some answers from yes to no, no to yes, added new information, and qualified prior answers)

Sinclair Wyoming Refining Company v. A & B Builders, Ltd, 989 F. 3d 747 (10th Cir. 2021) (rejecting changes to errata sheet, in part because (a) deponent could have been crossed-examined by his own lawyer to correct error during deposition and wasn’t, (b) witness did not appear confused in giving original answers during deposition, and (c) it did not matter, at the end of the day, whether the corrected testimony aligns with objectively-correct information or subjective evidence - what matters is what the deponent testified he or she believed was true)

https://en.wikipedia.org/wiki/Gordian_Knot

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