Privacy Rights & Depositions

In 2015 I was defending a commercial driver at his deposition concerning an accident in which he was involved. The plaintiff pled a negligent hiring claim. As part of that, opposing counsel spent a great deal of time in the deposition going through the driver’s employment history before joining the bus company. Eventually it led to this exchange, which I have shortened for readability. The Werner referenced in the deposition is a trucking company.

6 Q: And then at Werner?
7 A: Personal reasons.
8 Q: What kind of personal reasons?
9 A: Personal.
10 Q: So, I have a right to know what happened
11 there.
12 A: Nothing happened.· I quit.
13 Q: Why did you quit?
14 A: Personal reasons.
15 Q: Okay. And what were the personal
16 reasons? Are you refusing to answer the question?
17 A: No, I’m not refusing. I already
18 answered it once, personal reasons.
19 Q: And I’m asking you what the personal
20 reasons were.
21 A: And I told you, personal reasons.
22 Q: Is there a reason you’re not willing to
23 give this answer?
24 A: No.

This then led to a game of 20 Questions.

11 Q: Were you terminated from the program for
12 an incident occurring during your training?
13 A: No.
14 Q: Were you terminated or did you quit?
15 A: I quit.
16 Q: Do you believe that’s what your
17 employment file will represent?
18 A: I have no idea.
19 Q: Did the personal reasons that you left
20 the job for relate to your employment with somebody?
21 A: I don’t understand the question.
22 Q: I guess I don’t know how to proceed if I
23 can’t get an answer to this question as to what the
24 personal reasons were. I’ll ask you again, what were
25 the personal reasons why you left Werner in 2012?
1 A: I decided I don’t want to drive trucks
2 anymore. There you go.
3 Q: Why is that?
4 A: Personal reason.

At this point both opposing counsel and the driver are frustrated with each other. Some may be wondering why I did not assert any objections. Relevancy was borderline but that is rarely an appropriate deposition objection. Asked and answered did not apply because the driver had not answered the merits of the question. Even then, its not an appropriate deposition objection. The questions were not vague, ambiguous, or compound. There was nothing privileged about the question, so I could not instruct the driver not to answer. Basically there was nothing objectionable for deposition purposes. Trial might have been a different matter. Anyhow, Discovery Commissioner Bulla was called.

17:13 MR. LOWRY:· Commissioner, this is
14 Michael Lowry and you have John Shook also on the
15 phone. We have resumed the record. So, whatever we
16 say and your ruling in it, we have it preserved
17 somehow. I’ll let Mr. Shook explain where we are.
18 MR. SHOOK: So, we’re taking the
19 deposition of Defendant bus driver, this is a motor-
20 vehicle accident, and we’re going through the work
21 history with the bus driver.· The bus driver
22 previously had worked in a driving capacity at
23 another company and we asked why he decided to leave
24 that company and he said, “For personal reasons.”
25 And when asked what those personal reasons were as to
18:1 why he left, he said, “Because of those personal
2 reasons, I decided not to drive trucks anymore,” and
3 then, again, when asked what the personal reasons
4 were, he refused to answer, continuing to state,
5 “Personal reasons.”
6 MR. LOWRY: Commissioner, this is
7 Michael Lowry. That’s accurate. He’s indicated, I
8 believe, that the reasons he decided to leave did not
9 have anything to do with his job performance and this
10 is a prior employer from years before, so if he
11 answers “Personal reasons,” it does not relate to his
12 job performance, that seems all right.· Now, having
13 said that, I did not object to the question, I have
14 not instructed him not to answer.
15 DISCOVERY COMMISSIONER: How long ago
16 was the employment?
17 MR. SHOOK: 2012.
18 MR. LOWRY: The date of this accident
19 is April 7 of 2014, for the deposition that we’re
20 here today.
21 DISCOVERY COMMISSIONER: So, this was
22 the employer right before the current employer
23 involved in this particular–
24 MR. SHOOK:· Three, three prior. He’s
25 had several jobs since.
19:1 DISCOVERY COMMISSIONER: Have we
2 identified on the record any other reasons for
3 changing employment?
4 MR. SHOOK: With the other employers?
5 DISCOVERY COMMISSIONER: Yes.
6 MR. SHOOK: We are actually going
7 through that right now. We’re getting various
8 reasons, you know, no work, temporary employment,
9 that sort of thing.
10 DISCOVERY COMMISSIONER: That’s fine.
11 I don’t have a problem with those explanations.· Sir,
12 I completely understand why you would prefer not to
13 share a personal reason and I appreciate that. I
14 would like to figure out a way how to protect this,
15 but allow the answer to be given. I would like to
16 know, and I know you’ve indicated apparently on the
17 record that it was not related to business, but I
18 would very much like to know if there is some
19 additional information that you could provide that
20 would support that, your position, that you would
21 feel comfortable providing.
22 MR. LOWRY:· Commissioner, maybe I’ll
23 ask a couple of questions and see if that addresses
24 it, if you don’t mind, John?
25 MR. SHOOK:· Yeah.
20:1 DISCOVERY COMMISSIONER:· I don’t mind.
2 MR. SHOOK:· Go ahead.
3 MR. LOWRY:· Okay. Mr. [Driver], is it
4 the reason that you left Werner for personal reasons
5 have anything to do with your job performance?
6 A: No.
7 MR. LOWRY: Did it have anything to do
8 with a medical condition?
9 A: No.
10 MR. LOWRY: Were you terminated or did
11 you quit?
12 A: I quit.
13 MR. LOWRY: Did that help,
14 Commissioner?
15 DISCOVERY COMMISSIONER: I think it
16 does help. Mr. Shook, can we ask one more question
17 just to confirm that quitting had nothing to do with
18 any of his job responsibilities for…can we ask that
19 additional question?
20 MR. SHOOK: Yeah, sure, go ahead.
21 Q: Did it have anything to do with your job
22 responsibilities?
23 A: No.
24 MR. SHOOK: You know, can I ask one
25 more question here?
21:1 DISCOVERY COMMISSIONER: Yes.
2 Q: Did the personal reasons, you’ve stated
3 that you decided not to drive a truck anymore because
4 of these personal reasons, did these personal reasons
5 preclude you from doing anything else besides driving
6 a truck?
7 DISCOVERY COMMISSIONER: I think that’s
8 a fair question.
9 A: No.
10 Q: So, it only precluded, these personal
11 reasons only precluded you from driving a truck?
12 A: Yes.
13 DISCOVERY COMMISSIONER: I think the
14 next question has to be, “You indicated, it was
15 personal reasons, but was there any legal reason that
16 you could not drive a truck?”
17 A: No.
18 DISCOVERY COMMISSIONER: Was your
19 license restricted in any way after–
20 A: I wear glasses as a restriction.
21 DISCOVERY COMMISSIONER: –after
22 quitting this job?
23 A: No.
24 COMMISSIONER: And so, you would have
25 had the ability to continue to drive a truck should
22:1 you have desired to do so?
2 A: Yes.
3 MR. SHOOK: Your Honor, he mentioned
4 that he had started to wear glasses.
5 Q: I’m sorry. What were you saying?
6 A: I’ve always worn glasses.
7 Q: Okay.
8 DISCOVERY COMMISSIONER: All right. I
9 think that’s sufficient information on the record.
10 If something develops in the future, either in this
11 deposition or during the course of discovery that
12 requires us to revisit this issue, I’ll be happy to
13 revisit it. So, for now, I’m not going to require
14 the witness to disclose any specifics of his personal
15 reasons. I’m satisfied that it didn’t have anything
16 to do with his job performance or his ability to
17 drive a vehicle. Again, Mr. Shook, if you do find
18 out otherwise in the future or something arises, I’ll
19· be happy to revisit the issue at that time.

At the end the record had been developed sufficiently that if the driver had left for something other than personal reasons there would have been problems for him. The lesson for me was a reminder that if you encounter a roadblock at a deposition like this, dance around it as much as possible with questions like were asked and then either seek a ruling on it or see if you can impeach the deponent later.