Depositions: How to Get Beyond I Don't Know and I Don't Remember

You are deposing a key witness on a potentially dispositive issue. When you ask a crucial question, the non-answer answer (NAA) is “I don’t know” or “I don’t remember.” What’s your strategy?

Before the Crucial Question, Obtain Related Admissions

If a deponent has already admitted knowledge of facts related to the crucial admission you need, it is less likely that the deponent will have the temerity to deny knowledge or memory of crucial facts. For example, assume you already established that the deponent attended a meeting at which a decision was made that affects the outcome of your case, and recalls certain details about it. The deponent will then be hard-pressed to give you an NAA when pressed about crucial facts pertaining to that meeting.

Be Skeptical

If that NAA is not credible, look incredulous. Pursue the point by asking follow-up questions, such as: “You already testified that you attended this meeting, and you recall where and when it was, and you recall who else attended, but now you’re telling me you don’t remember a thing about what was discussed?”

Use Documents

In this same hypothetical, assume that, through discovery, you have already obtained a copy of the meeting agenda and minutes. Confront the deponent with those documents to spark his or her “faulty” knowledge or recollection. You may even have a document the deponent authored, revealing knowledge that belies the NAA. Even the most recalcitrant deponent will feel so foolish when confronted with such documentation that repetition of NAAs is unlikely. Note: This is not the same as obtaining testimony via past recollection recorded in Federal Rule of Evidence 803(5). Even if you do not have such a document, you can ask the deponent if there is any document that may refresh his or her recollection, thereby seeking to obtain the testimony you need by that means.

Use Prior Testimony of Other Witnesses

If you have already taken depositions of other witnesses on the same subject for which your deponent testifies NAA, confront the deponent with deposition excerpts. When pressed, the evasive deponent will divulge the answer—and the admission you need.