Depose Witnesses Early or Risk Losing Their Testimony, Experts Say

Last week’s blog post on celebrity misbehavior during depositions made the point that deponents who answer uncomfortable questions with civility, humility, and honesty have the best chance for a successful outcome.

There was, however, another lesson that could have been drawn from those same cases. For any number of reasons, critical witnesses won’t necessarily be available when needed for pretrial discovery or trial.

Witnesses may die before trial. This occurred in the recent sexual assault lawsuit against comedian Bill Cosby in California, where Playboy Mansion owner Hugh Hefner died prior to trial and was thus unavailable to impeach the testimony of the plaintiff regarding security procedures in place at the mansion on the night the assault allegedly occurred. Hefner’s account was captured in a video deposition, which was played for the jury at a trial that took place nearly 5 years after his death.

Witnesses may plead the Fifth Amendment. At the same trial, Cosby refused to testify, asserting that a court order forcing him to do so would violate his Fifth Amendment right against compelled self-incrimination. Citing Pennsylvania’s successful criminal prosecution of Cosby for sexual assault in 2018 (later overturned), Cosby’s lawyers successfully argued that the possibility of future criminal proceedings against their client for other alleged assaults supported a well-founded belief that his testimony in a civil matter could be used to incriminate him. Cosby’s version of events was provided to the jury by way of a deposition he had given earlier in the case, before he had asserted his Fifth Amendment rights.

Witnesses may decline to give testimony. For any number of reasons, some good (e.g., outside the subpoena power of the court), some not-so-good. The “not so good” justification for declining to give deposition testimony appears to be in play in the conservatorship litigation between singer Britney Spears and her father, Jamie Spears. According to news media accounts, the elder Spears refuses to cooperate in scheduling a deposition and has been a no-show for several of them.

The Spears case points up another reason why taking a deposition at the earliest opportunity can be a wise decision. The litigation process itself can be stressful and not always conducive to good behavior. Witnesses who were once willing to give deposition testimony might be so forthcoming after experiencing one, or several, adverse outcomes during the course of the litigation.

Celebrity hijinks aside, there are other reasons why witnesses might not be available for pretrial deposition of trial. We live in a highly mobile society, where people move easily from state to state to pursue new employment, live closer to family, or retire. Unless a contract provides otherwise, there is no legal requirement to leave a forwarding address with an employer or anyone else for that matter.

For these reasons, employment law attorneys Anthony Argiropoulos and Maximilian D. Cadmus at Epstein Becker Green say it’s important to depose potentially important witnesses early and to treat those depositions as the last chance the client might have to obtain their testimony.

According to Argiropoulos and Cadmus, important business to be handled during those depositions might include:

• authenticating important documents for later use at trial
• nailing down testimony vital to proving legal claims
• obtaining testimony vital to defending claims against the client

They also advise taking a video deposition in every case. “Video depositions were once exotic expenses, reserved for complicated and well-funded lawsuits,” they write. “Today, they should be regarded as standard.”

To paraphrase the Chinese proverb about planting trees, if the best time to depose a witness is immediately after the relevant events, then the second-best time to depose that witness is now. The opportunity to take that deposition may not come again.