Demonstrations and Nonverbal Responses in a Deposition?

Some attorneys are under the misconception that in a deposition a deponent only has to answer questions and does not have to comply with any requests for physical demonstrations.  That was the law under Stermer v. Superior Court, 20 Cal. App. 4th 777 (1993).  However, the California Supreme Court decision Emerson Electric Co. overruled that holding.  Emerson Electric Co. v. Sup. Ct. (Grayson), 16 Cal.4^th 1101 (1997).  In Emerson Electric Co., the plaintiff was injured while using the defendant’s radial saw.  During a videotaped deposition, the plaintiff deponent was asked to reenact how the injury occurred, and his attorney refused to allow him to do so.  The California Supreme Court established that a court’s power to order a deponent “to answer any question” (CCP § 2025.480(a)) includes the power to order nonverbal responses.  Emerson Elec. Co. v. Sup. Ct. (Grayson), 16 Cal.4^th 1101, 1111-1112 (1997).  So, a deponent may be asked to draw a diagram, demonstrate how he used the defective product, reenact the event in question, or possibly even furnish a handwriting sample.  Id., at 1111-1112.  A refusal to do so, and a subsequent refusal to obey a court order to do so, may subject the deponent to sanctions including evidence preclusion and terminating sanctions.  Id., at 1112.