The Successor Agency to The Former Emeryville Redevelopment Agency and The City…

Background

The plaintiffs, referred to collectively as “Emeryville,” and remaining defendant Hanson Building Materials, Limited filed a joint letter describing a discovery dispute. The dispute concerned the approximately five-hour deposition of Professor Steven Solomon, who prepared an expert report and rebuttal for Emeryville concerning corporate governance and whether corporations are legally separate from related entities.

Hanson asserted that Solomon refused to answer eleven questions. It requested an order requiring Solomon to appear for another deposition at the plaintiffs’ expense, or an order preventing him from testifying about the subjects of the allegedly unanswered questions. Emeryville responded that Solomon had answered the questions and that Hanson had not followed up during the deposition, stated that Solomon refused to respond, challenged any answer as nonresponsive, or reserved time to address the issue at the end of the deposition.

Legal standard

Under Federal Rule of Civil Procedure 30, a party generally must obtain court permission to depose again someone who has already been deposed. The court must apply the discovery limits in Rule 26, which allow discovery of nonprivileged information relevant to the claims or defenses and proportional to the needs of the case. Rule 26 also requires courts to limit discovery when the requesting party has already had enough opportunity to obtain the information. Under Rule 37, a party may ask the court to compel an answer when a deponent fails to answer a deposition question, and evasive or incomplete answers are treated as failures to respond.

The court reviewed cases addressing whether a deponent refused to answer questions. Those cases included situations where deponents refused even basic questions, repeatedly changed answers, refused to continue, or failed to answer substantive questions. The court also considered a case in which a deponent’s statements that she did not know or could not recall an answer, or could not answer a hypothetical, were not treated as refusals to answer.

Court’s analysis

The court found that Hanson sufficiently showed that the requested testimony was relevant. But based on the examples in the parties’ letter, the court found that Professor Solomon did not appear to have refused to answer any questions.

In one example, Solomon answered a question about whether parties seeking to establish corporate separateness sometimes do not obtain valuations by stating that obtaining valuations is customary. In two other examples, he was asked whether corporations and subsidiaries “always” or “never” take particular actions. Solomon treated those questions as hypotheticals and said he had answered them based on the facts of the case, which the court found he had done.

The court distinguished the examples from the more obvious failures in the cases Hanson cited. It also noted that defense counsel did not state on the record that Solomon was refusing to answer, Solomon did not explicitly refuse to answer, and the deposition lasted five hours. The court stated that the excerpts did not clearly show that the hypotheticals supplied enough facts, but it nevertheless found no refusal to answer. The court further stated that the complete transcript might show otherwise, but the provided excerpts did not demonstrate that a second deposition was warranted.

Disposition

Judge William H. Orrick denied Hanson’s request to compel Professor Solomon to appear for another deposition and denied Hanson’s request to prevent Solomon from testifying about the subjects of the disputed questions. The order did not decide the parties’ underlying claims; it resolved the discovery dispute.