Emerson Electric Co. v. Superior Court , 16 Cal. 4th 1101 ( 1997 )

Opinion

MOSK, J.

Code of Civil Procedure section 2025, enacted by the Civil Discovery Act of 1986, permits a party to record testimony at an oral deposition by videotape as well as stenographically. (Id., subd. (l).) It also provides that if a deponent “fails to answer any question,” the court has discretion to order that the answer be given. (Id., subd. (o).)

In this matter, defendants sought to compel plaintiff, who allegedly was injured while using their product, to demonstrate how the injury occurred. We granted review to resolve a conflict in our Courts of Appeal concerning the authority of the trial court to order such a nonverbal response, pursuant to Code of Civil Procedure section 2025, subdivision (o). We address two related questions: first, whether “answer,” as used in Code of Civil Procedure section 2025, subdivision (o), includes nonverbal as well as verbal responses at a videotaped deposition; and second, whether the trial court may impose a sanction, including evidence preclusion, if a deponent refuses to comply with an order compelling that a nonverbal “answer” be given.

We conclude that the answer to each question is affirmative. Accordingly, we affirm the judgment of the Court of Appeal in this matter and disapprove Stermer v. Superior Court (1993) 20 Cal.App.4th 777 [24 Cal.Rptr.2d 577], to the extent it holds to the contrary.

I.

Real party in interest William S. Grayson (hereafter Grayson) brought this action against petitioners Emerson Electric Co. and Sears, Roebuck & Co. (hereafter Emerson) after he was allegedly injured while using their product, a radial arm saw. His complaint includes causes of action for strict liability, breach of warranty, and negligence.

Emerson noticed a videotaped deposition of Grayson. At the deposition, Grayson was asked to diagram the location of the saw and his position at the time of the accident. His attorney instructed him to refuse, based on the objection that he could not be required to give a nonverbal response at a deposition. On the same ground, counsel refused to permit him to reenact the accident.

Emerson moved for an order precluding Grayson from reenacting the accident at trial; in the alternative, it moved for an order compelling him to provide nonverbal testimony, including a reenactment, at his videotaped deposition. Grayson opposed the motions.

At the hearing, although expressing strong disagreement with Stermer v. Superior Court, supra, 20 Cal.App.4th 777, the superior court concluded that it was bound by the holding therein that a trial court has no authority to order a deponent to give nonverbal testimony: “The appellate case certainly says clearly to me that I don’t have the right to order your client to demonstrate how the accident occurred. ... I think that should be the law, that an examining attorney would have the right to say at a deposition, please show what you were doing when the accident occurred. And act it out. Reenact it, you know. And I don’t know why that shouldn’t be possible.” Although stating that Grayson’s refusal was “ridiculous and not fair,” it ruled that Stermer also precluded a discovery sanction: “I can’t penalize a man because he did what the law permits him to do or not to do.” It denied both motions “without prejudice.”

Emerson petitioned for a writ of mandate in the Court of Appeal. The Court of Appeal expressly disagreed with Stermer, holding that a deponent could be required to give nonverbal as well as verbal responses at a videotaped deposition. It ordered that a peremptory writ of mandate issue, commanding the superior court to vacate its original order and hold a new hearing to “exercise its discretion and, based thereon, make such further order as is appropriate.” We granted review.

II.

A.

Code of Civil Procedure section 2025 governs oral depositions, including videotaped depositions. Enacted as part of the Civil Discovery of Act of 1986 (id., § 2016 et seq.), it provides, in relevant part: “Unless the parties agree or the court orders otherwise, the testimony, as well as any stated objections, shall be taken stenographically. The party noticing the deposition may also record the testimony by . . . videotape if the notice of deposition stated an intention also to record the testimony by [that] method[], or if all the parties agree that the testimony may also be recorded by [that] . . . method[]. . . . Examination and cross-examination of the deponent shall proceed as permitted at trial under the provisions of the Evidence Code.” (Code Civ. Proc., § 2025, subd. (l)(1).)

Code of Civil Procedure section 2025 also permits a party to enforce the discovery right. It thus provides: “If a deponent fails to answer any question . . . , the party seeking discovery may move the court for an order compelling that answer . . . .” (Id., subd. (o).) If a party deponent fails to obey an order to do so, the court may “make those orders that are just against the disobedient party.” (Ibid.)

B.

Grayson contends that the Code of Civil Procedure section 2025, subdivision (o)—in referring to a deponent’s failure to “answer any question”—“clearly and unambiguously” applies only to a verbal answer. He relies on Stermer v. Superior Court, supra, 20 Cal.App.4th 777, which so holds.¹

The reliance is misplaced. Stermer concluded that requiring a nonverbal response was “beyond the pale of the discovery act.” (Stermer v. Superior Court, supra, 20 Cal.App.4th at p. 781.) It reasons as follows. “The term ‘question’ is defined as ‘an interrogative expression often used to test knowledge.’ [Citation.] To ‘answer’ a question is simply ‘to speak or write in reply’ thereto. [Citation.] However, a reenactment at a deposition requires something more than a mere answer—it requires that the deponent perform a host of nonverbal actions that go well beyond answering questions. In other words, the reenactment necessarily includes a series of acts by the deponent which are not of a verbal nature.” (Ibid.)

The reasoning is unpersuasive. The language, context, and legislative history of Code of Civil Procedure section 2025, subdivision (o), compel a different conclusion.

To “answer” a question is, as Stermer observed, “ ‘to speak or write in reply’ thereto” (20 Cal.App.4th at p. 781); but it is not simply that. To “answer” is also “to act in response to a request” (Webster’s New Internat. Dict. (3d ed. 1961) p. 90); it is a “general term . . . and is used without especial suggestion for any action of saying, writing, or doing something called for in return.” (Ibid., italics added.) Construing “answer” in Code of Civil Procedure section 2025, subdivision (o), to include nonverbal as well as verbal responses at a videotaped deposition is thus in accord with the “usual, ordinary” meaning of the word. (Selma Auto Mall II v. Appellate Department (1996) 44 Cal.App.4th 1672, 1685 [52 Cal.Rptr.2d 599] [“In construing a statute . . . [w]e look first to the language of the statute and accord the words their usual, ordinary . . . meaning in light of the purpose for which the statute was enacted.”].)

Construing “answer” in Code of Civil Procedure section 2025, subdivision (o), to include nonverbal as well as verbal responses at a videotaped deposition also harmonizes the provision with the requirement of Code of Civil Procedure section 2025, subdivision (l)(1) that “[e]xamination and cross-examination of the deponent shall proceed as permitted at trial under the provisions of the Evidence Code.” It is undisputed that at trial evidence may include a nonverbal answer to a question, including a physical demonstration or reenactment of an incident. (People v. Buttles (1990) 223 Cal.App.3d 1631, 1639 [273 Cal.Rptr. 397]; DiRosario v. Havens (1987) 196 Cal.App.3d 1224, 1230-1233 [242 Cal.Rptr. 423].)

Construing “answer” in Code of Civil Procedure section 2025, subdivision (o), to include nonverbal as well as verbal responses at a videotaped deposition also serves what we have previously recognized as one of the legislative purposes of the discovery statutes: principally, to educate the parties concerning their claims and defenses so as to encourage settlements and to expedite and facilitate trial. (Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 376 [15 Cal.Rptr. 90, 364 P.2d 266].) “Certainly, it can be said, that the Legislature intended to take the ‘game’ element out of trial preparation while yet retaining the adversary nature of the trial itself. One of the principal purposes of discovery was to do away ‘with the sporting theory of litigation—namely, surprise at trial.’ ” (Ibid.)

As we explained in Greyhound, in order to accomplish this purpose, the discovery statutes “must be construed liberally in favor of disclosure.” (56 Cal.2d at p. 377.) We observed that the discovery statutes “vest . . . wide discretion in the trial court in granting or denying discovery” (id. at p. 378), but emphasized that “appellate courts in passing on orders granting or denying discovery should not use the trial court’s discretion argument to defeat the liberal policies of the statute” (id. at p. 379). We also acknowledged the broad scope of the discovery right, permitting a deponent to be examined “ ‘regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action’ ”—even if the testimony will not be admissible at trial—so long as it “ ‘appears reasonably calculated to lead to the discovery of admissible evidence.’ ” (Id. at p. 370, quoting former Code Civ. Proc., § 2016, subd. (b), as amended by Stats. 1959, ch. 1590, § 1, p. 3920.)

Our conclusions in Greyhound apply equally to the new discovery statutes enacted by the Civil Discovery Act of 1986, which retain the expansive scope of discovery. (See Code Civ. Proc., § 2017, subd. (a) [“Unless otherwise limited by order of the court in accordance with this article, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.”].)

Construing “answer” in Code of Civil Procedure section 2025, subdivision (o), to include nonverbal as well as verbal responses at a videotaped deposition is also supported by the legislative history of the statute. The Civil Discovery Act of 1986 was enacted as a “comprehensive revision of the statutes governing discovery” intended to “bring California law closer to the discovery provisions of the Federal Rules of Civil Procedure.” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 169 (1985-1986 Reg. Sess.) p. 10.) Among the discovery tools available under the Federal Rules of Civil Procedure (28 U.S.C.) at that time, as now, were videotaped depositions. Thus, as rule 30(b)(4) of the Federal Rules of Civil Procedure then stood, the parties could stipulate, or, upon motion, the court could order, that a deposition be recorded by videotape. As then construed by the federal courts, the rule encompassed nonverbal as well as verbal responses, including reenactments. (See Roberts v. Homelite Div. of Textron, Inc. (N.D.Ind. 1986) 109 F.R.D. 664, 668 [reenactment of a lawn mower injury]; Carson v. Burlington Northern Inc. (D.Neb. 1971) 52 F.R.D. 492, 493 [reenactment of a steel press injury]; see also Kiraly v. Berkel, Inc. (E.D.Pa. 1988) 122 F.R.D. 186, 188 [reenactment of meat slicer injury]; Rice’s Toyota World v. S.E. Toyota Dist. (M.D.N.C. 1987) 114 F.R.D. 647, 650 [“Video depositions have also been authorized in order to permit the witness to reconstruct an accident. Aside from its use at trial, such a deposition has discovery value by making a record of the description of the event that cannot possibly be made by a mere stenographic deposition.”].)²

It appears, moreover, that a legislative purpose for initially authorizing videotaping of depositions, under former Code of Civil Procedure section 2019, was precisely to allow the recording of nonverbal as well as verbal responses by a deponent. A report by the Assembly Committee on Judiciary thus refers to the “improvements” in the discovery procedures under that provision—which were continued under the Civil Discovery Act of 1986 (see Code Civ. Proc. § 2025, subd. (l))—as including the use of videotaping to “permit the recording of both the spoken word and gestures and demeanor of witnesses.” (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 2473 (1979-1980 Reg. Sess.) p. 2.) The same legislative history also indicates .that such authorization of videotaped depositions was intended to supersede our decision in Bailey v. Superior Court (1977) 19 Cal.3d 970 [140 Cal.Rptr. 669, 568 P.2d 394], which involved a request by the defendant for an order compelling the reenactment of an accident—as here, involving a radial arm saw—at a videotaped deposition. (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 2473 (1980 Reg. Sess.) p. 2.) In Bailey, we noted the disparity between the California and the federal rules governing depositions. (Bailey v. Superior Court, supra, 19 Cal.3d at pp. 974-975, fn. 5.) We concluded that the Code of Civil Procedure did not permit videotaped depositions without the mutual consent of the parties. (Id. at p. 978.) We emphasized that “[w]hether this court believes videotaping is as reliable as, or more advantageous than, the traditional means of recording a deposition is not the issue.” (Id. at p. 977.) We explained that it was for the Legislature to determine whether methods of recording and reporting depositions other than stenographic and written transcriptions should be authorized. (Id. at p. 978.) By amending the discovery statutes to permit videotaped depositions, the Legislature expressly so determined.

Grayson warns that construing “answer” in Code of Civil Procedure section 2025, subdivision (o), to include nonverbal as well as verbal responses at a videotaped deposition will inevitably result in discovery abuse because demonstrations and reenactments are “inherently misleading.”

He is unpersuasive. Far from “inherently misleading,” a demonstration or reenactment of an incident may well provide a more direct and accurate description than a verbal description of the same ³

Grayson also argues that construing “answer” in Code of Civil Procedure section 2025, subdivision (o), to include nonverbal as well as verbal responses at a videotaped deposition will create undue risks and burdens for the deponent because, unlike trials, depositions are not subject to control by a judge.

Again he is unpersuasive. Code of Civil Procedure section 2025 provides extensive safeguards against discovery abuse that do not require judicial intervention, including procedural requirements concerning who may operate the recording equipment, the nature of the area used for recording the testimony, and proscriptions against distorting the appearance or demeanor of participants in the deposition by the use of camera or sound recording techniques. (Id., subd. (l)(2)(A)-(I).) A deponent may also interpose, on the stenographic and videotaped record, objections concerning any errors or irregularities in response to a request for a demonstration or reenactment. (Id., subd. (m).)

Code of Civil Procedure section 2025 also permits judicial intervention. It provides that any party, any deponent, or any other affected natural person or organization may promptly move the court for a protective order, whether “[bjefore, during, or after a deposition.” (Id., subd. (i).) The court retains broad discretion to order limitations or conditions on the party seeking to carry out a videotaped reenactment to protect against “unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Ibid.; see also id., subd. (n).) The court may also appoint a referee to preside over the deposition and rule on any objections. (Id., § 639.)

Generally, a deponent seeking a protective order will be required to show that the burden, expense, or intrusiveness involved in the videotaped deposition clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017, subd. (c).) It is also grounds for relief that a reenactment at a videotaped deposition would be unreasonably cumulative or duplicative, or unduly burdensome or expensive. (Id., § 2019, subd. (b).) In the appropriate case, the court may limit or preclude the request for a reenactment altogether, on safety, feasibility, or other grounds. (Id., § 2025, subd. (i).) The need for, and nature of, such a protective order will, of course, depend on the circumstances of the individual case.⁴

Finally, Grayson urges that construing “answer” in Code of Civil Procedure section 2025, subdivision (o), to include nonverbal as well as verbal responses at a videotaped deposition would be inconsistent with our admonition in People v. Dabb (1948) 32 Cal.2d 491 [197 P.2d 1] concerning the potential misuse of motion picture evidence. We observed: “A motion picture of the artificial recreation of an event may unduly accentuate certain phases of the happening, and because of the forceful impression made upon the minds of the jurors by this kind of evidence, it should be received with caution.” (Id. at p. 498)

Dabb is inapposite; it involved the admissibility of motion picture reenactments at a criminal trial, not their availability for discovery purposes. The use of a videotaped reenactment at trial is a separate question, not raised here. Notably, however, Code of Civil Procedure section 2025 makes extensive provision for the trial court to receive videotaped depositions, for use at trial or any other hearing in the action, with appropriate caution. Thus, a party intending to offer any part of a videotaped deposition at a trial or hearing must provide written notice of such intent in sufficient time for objections to be made and ruled on by the judge, and for any editing of the tape. (Code Civ. Proc., § 2025, subd. (l)(2)(I).) The court also has broad discretion to exclude videotaped demonstrations or reenactments at trial. (Ehrhardt v. Brunswick, Inc. (1986) 186 Cal.App.3d 734, 741 [231 Cal.Rptr. 60].)⁵

For all these reasons, we conclude that Code of Civil Procedure section 2025, subdivision (o), should be construed to include nonverbal as well as verbal responses at a videotaped deposition—which may require a deponent to perform a demonstration or reenactment at the request of a party.

C.

Code of Civil Procedure section 2025, subdivision (o), in relevant part provides: “If a deponent fails to obey an order entered under this subdivision, the failure may be considered a contempt of court. In addition, if the disobedient deponent is a party to the action ... the court may make those orders that are just against the disobedient party . . . , including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Section 2023.”

It follows from the foregoing that a deponent refusing to comply with an order by the trial court requiring him to perform a demonstration or reenactment may be subject to discovery sanctions, at the discretion of the court. Disobeying a court order to reenact an accident at a videotaped deposition may constitute a misuse of the discovery process. (Code Civ. Proc., § 2023, subd. (a)(7).) As in the case of any discovery abuse, “the court, after notice to any affected party, person, or attorney, and after opportunity for hearing,” may impose a sanction “against anyone engaging in conduct that is a misuse of the discovery process.” (Id.., subd. (b).) Among the authorized sanctions, a court may require the deponent to pay reasonable expenses, including attorney fees (id., subd. (b)(1)); it may also impose an issue sanction (id., subd. (b)(2)), or an evidence sanction, prohibiting the offending party from introducing designated matters in evidence (id., subd. (b)(3).) In the extreme case, it may also impose a terminating sanction. (Id., subd. (b)(4).)

III.

In this matter, Grayson refused at his videotaped deposition to diagram his position in relation to the radial arm saw that caused his injury; he also refused to demonstrate, using the saw, how the injury occurred. His only grounds were that he had no obligation to do so at an “oral deposition” and that it would deprive him of the advantage of “surprise” if he performed a reenactment at trial.

The record indicates that the superior court denied Emerson’s motion to compel only reluctantly, in deference to the then controlling authority of Stermer v. Superior Court, supra, 20 Cal.App.4th 777. Because Stermer is disapproved for the reasons stated herein, the matter must be remanded to the superior court for a new hearing, so that it may exercise its discretion and make such further order as is appropriate.

For these reasons, we affirm the judgment of the Court of Appeal.

George, C. J., Baxter, J., Werdegar, J., Chin, J., and Brown, J., concurred.

1 In Stermer, as here, the nonverbal testimony at issue was a “physical reenactment.” (Stermer v. Superior Court, supra, 20 Cal.App.4th at p. 779.) In that case, the defendants—the manufacturer and the seller of an infant car seat—were sued by the parents of a child killed in an automobile accident. At a videotaped deposition of the mother, defendants’ counsel asked her to “perform, before the camera, the manner in which she placed and secured the infant into the car seat.” (Ibid.) The Court of Appeal concluded that she could not be compelled to do so. (Id. at p. 782.)

2 Grayson urges that, unlike Code of Civil Procedure section 2025, the then current federal rule did not permit a party to obtain a videotaped deposition as of right, but only by stipulation or court order. We find the distinction of no significance. Indeed, the federal rule was subsequently amended, in 1993, to permit a party to notice a videotaped deposition without either stipulation of counsel or court order. (See Fed. Rules Civ .Proc., rule 30, 28 U.S.C., advisory com. note to 1993 amendments to subd. (b).) It has been liberally construed to permit a party to obtain a nonverbal response to a question, including a reenactment. (See, e.g., Gillen v. Nissan Motor Corp. in U.S.A. (E.D.Pa. 1994) 156 F.R.D. 120, 122 [compelling “demonstration” of seatbelt defect].)

3 One practice guide, Weil and Brown, California Practice Guide: Civil Procedure Before Trial 2 (The Rutter Group 1996) paragraph 8:659, at pages 8E-72 to 8E-73, indicates that initial concerns about abusive use of videotaped depositions have proven unfounded: “In the past, lawyers worried that the witness might be distracted by the video camera; or that opposing counsel might engage in unnecessary theatrics. But experience with videotape generally proves otherwise. [‘JO First of all, videotaping usually cuts down on abuses by counsel during the deposition . . . . [f¡ It also tends to make the witness more candid. . . . [<]D It also provides a far better record of the examination than any transcript or audiotape. . . . HD The deponent can be requested to demonstrate or ‘act out’ what happened. For example, in product liability cases, the plaintiff can be asked to show how he or she used the product (often providing invaluable evidence where misuse is claimed).” (Original italics.)

4 Federal precedents offer numerous examples of orders permitting videotaped demonstrations but imposing conditions, for safety or other reasons. (See, e.g., Roberts v. Homelite Div. of Textron, Inc., supra, 109 F.R.D. at p. 668 [compelling videotaped reenactment of accident with a lawn mower, provided that “the re-enactment must be conducted so that the safety of the parties is in no way jeopardized”]; Carotenuto v. Emerson Electric Company (E.D.Pa. 1990) 1990 WL 198820, p; *1 [compelling reenactment of accident with a radial arm saw, provided that the plaintiff “will not be compelled to demonstrate what happened to him on an operating machine”]; Carson v. Burlington Northern Inc., supra, 52 F.R.D. at p. 493 [compelling reenactment of a steel press injury, provided that the “plaintiff shall not be requested to actually touch or operate the machine in question”]; see also Brown v. Bridges (Fla.Dist.Ct.App. 1976) 327 So.2d 874, 876 [compelling demonstration of karate maneuvers, subject to “imposition of additional safeguards, if any, which the trial court may find to be necessary and proper”].)

5 Although a deponent may be compelled to reenact an accident at a videotaped deposition, it does not follow that the recording will be admissible at trial. It may be excluded, for example, based on problems of hearsay, authenticity, relevance, probative value as weighed against prejudice, or undue consumption of time. (See DiRosario v. Havens, supra, 196 Cal.App.3d at p. 1231; Evid. Code, §§ 1220, 1401, 210, 351, 352.) Dabb emphasized: “Protection against falsification or misrepresentation lies in the requirement of preliminary proof that the picture is an accurate reproduction of the scene or event which it depicts, and in the opportunity for cross-examination of the witnesses making such proof.” (People v. Dabb, supra, 32 Cal.2d at p. 498.) Several recent articles have discussed the admissibility of videotaped evidence at trial. (See Note, Roll Tape—Admissibility of Videotape Evidence in the Courtroom (1996) 26 U. Mem. L.Rev. 1445, 1452 [“The video’s use to depict reenactments of crimes and accidents is considered one of the most powerful uses of videotape evidence. . . . [T]he video reconstruction or reenactment is among the most difficult to get admitted into evidence . . . .”]; Comment, Truth, Lies, and Videotape: Are Current Federal Rules of Evidence Adequate? (1992) 21 Sw. U. L.Rev. 1199, 1205-1214).]