At the beginning of nearly every deposition, attorneys give witnesses a number of standard “ground rules” to ensure that a clear, accurate record is captured. One such instruction is that the witness should not guess or speculate in their answers.

A California man nearly found out the hard way just how important it is to heed that instruction. William J. Cannon was injured in a work-related accident on a Navy ship, the USS Coronado, in 2013. According to an incident report, Cannon’s injury took place in November, 2013; therefore, Cannon had until November 2015 to file a lawsuit under the statute of limitations.

Cannon filed suit on November 17, 2015, and was ultimately deposed in the case. During the deposition, Cannon testified that “the accident occurred a day or two after the vessel returned from sea trials,” which were in August, 2015, not November. If the accident truly took place in August, Cannon’s suit would be barred by the statute of limitations.

After the deposition Cannon filed a declaration stating that the accident occurred on November 25, 2013. Still, defense counsel pursued a Motion for Summary Judgment in the case, arguing that Cannon’s declaration should be excluded as a “sham affidavit.” U.S. District Court Judge Cathy Ann Bencivengo ruled in favor of Defendants and dismissed Cannon’s case.
Cannon appealed, and the Ninth Circuit Court of Appeals ruled last week that his case was dismissed in error.

“The district court abused its discretion in excluding Cannon’s post-deposition declaration under the ‘sham affidavit’ rule….Although the declaration was inconsistent with the portion of Cannon’s deposition testimony concerning the proximity of the accident to the return of the vessel from sea trials, Cannon never identified the date of the accident in his deposition, and Cannon presented evidence that the accident occurred in November. The incident report, which Cannon identified as ‘accurate’ during his deposition and claimed to have filled out on the date of the accident, contains the November date. The record does not thus present a ‘clear and unambiguous…inconsistency between a party’s deposition testimony and subsequent affidavit.’ ”

The complaint recites that the incident occurred “[o]n or about November 25, 2013.
Fortunately for Cannon he had other documents and facts on his side and can still pursue his action, but the incident highlights just how important it is that witnesses refrain from any type of speculative or non-specific answers in their depositions.