Emerson Electric v. Superior Court

| by Heather Duncan, Esq.

This month’s post focuses on the little-known but very important case of Emerson Electric v. Superior Court (1977) 16 Cal.4th 1101. In Emerson, the California Supreme court held that a deposition is to be conducted as if the proceeding were a trial; therefore, in a videotaped deposition one is allowed to ask a deponent to reenact how an accident occurred, demonstrate a matter, or draw pictures or diagrams at a deposition.

In Emerson, the plaintiff in the underlying action bought a radial arm saw at Sears and suffered an injury while using it. At his deposition the plaintiff was asked to diagram his position at the time of the accident and the location of the saw. His attorney refused to allow him to do so.

The California Supreme Court ruled that adequately answering a deposition question includes a requirement “to act in response to a request.” Thus, an answer to a question includes a verbal as well as non-verbal response in a videotaped deposition.  The case opinion includes a great discussion of the legislative intent behind the purpose of videotaped depositions.  Additionally, the court held that a court’s power to order a deponent “to answer any question” (CCP Section 2025.480(a)) includes the power to order nonverbal responses.

The next time you videotape a deposition, you just might want to remember to make the witness reenact how the alleged incident occurred.

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