Construction Law

Simple Copy Machine Question Turns Into A Deposition Debacle

By John P. Ahlers

For you contractors who thought about going to law school before you went into construction or for those few of you who went to law school and are now contractors, this is an example of real life "litigation." This is what depositions are all too frequently like. No wonder litigation costs are skyrocketing.

The story was reported in the Cleveland Plain Dealer. The case involves a public records dispute in Ohio and, specifically, whether deeds and other records at the County Recorder's Office that were collected and maintained with taxpayers' money should be readily available at a reasonable cost.

After reading this exchange I wanted to bash my head against the wall. The question was straight forward, but that is not how the exchange between the lawyer and the County official (the acting head of information technology) went. Here is how the deposition went down:

The question revolved around whether the County office had a copy machine at the time.

Plaintiff's Lawyer: During your tenure in the computer department at the Recorder's office, has the Recorder's office had photocopying machines?

County's Lawyer: Objection.

Plaintiff's Lawyer: Any photocopying machine?

County Official: When you say "photocopying machine," what do you mean?

Plaintiff's Lawyer: Let me be, let me make sure I understand your question. You don't have an understanding of what a photocopying machine is?

County Official: No. I want to make sure that I answer your question correctly.

This is where things go down hill and slide into the bizarre.

County's Lawyer: Dave, I'll object to the tone of the question. You make it sound like it's unbelievable to you that he wouldn't know what the definition of a photocopy machine is.

Plaintiff's Lawyer: I didn't ask him to define it. I asked him if he had any.

County Official: When you say "photocopying machine," what do you mean?

Plaintiff's Lawyer: Let me be clear. The term "photocopying machine" is so ambiguous that you can't picture in your mind what a photocopying machine is in an office setting?

County Official: I just want to make sure I answer your question correctly.

Plaintiff's Lawyer: Well, we'll find out. If you can say yes or no, I can do follow-ups, but it seems -- if you really don't know in an office setting what a photocopying machine is, I'd like the Ohio Supreme Court to hear you say so.

County Official: I just want to make sure I answer your question correctly.

County's Lawyer: There's different types of photocopiers, Dave.

At this point, you should be reaching for you cursor to click out of this post and take your blood pressure medication.

Plaintiff's Lawyer: You're speaking instead of, you're not under oath. This guy is.

County's Lawyer: I understand that, but I understand what his objection is. You want him to answer the question, but I don't think it's fair.

Plaintiff's Lawyer: It's not fair?

County's Lawyer: It's not a fair question. A photocopy machine can be a machine that uses photostatic technology, that uses xerographic technology, that uses scanning technology.

Plaintiff's Lawyer: I don't care what kind of technology it uses. Has your offices, we don't have technocrats on the Ohio Supreme Court. We've got people like me, general guys

County's Lawyer: Objection.

Plaintiff's Lawyer: ... or gals. I'm not really very interested in what the technology element of it is. I want to know ...

County's Lawyer: That's what's at issue in the case, Dave.

Plaintiff's Lawyer: Not in my judgment. Do you have photocopying machines at the Recorder's office? If you don't know what that means in an office setting, please tell the court you don't know what it means in an office setting to have a photocopying machine.

County Official: I would like to answer your question to the best of my ability.

Plaintiff's Lawyer: I'm asking you to answer that.

County Official: So if you could explain to me what you mean by ...

Plaintiff's Lawyer: I'm not going to do that because I want you, I want to establish on the record that you really don't know what it is. I want to establish that.

Now, do you know what it is or do you not know what it is? Do you understand what that term means in common parlance or not?

County Official: Common parlance?

Plaintiff's Lawyer: Common language.

County Official: I'm sorry. I didn't know what that meant. I understand that there are photocopying machines, and there are different types of them just like

You are likely by now asking yourself: Please tell me this is a made up example, no one can be this obtuse!

Plaintiff's Lawyer: Are there any in the Recorder's office?

County Official: there are different cars. Some of them run under gas power, some of them under electric power, and I'm asking if you could help me out by explaining what you mean by "photocopying machines"

Plaintiff's Lawyer: That's a great point.

County Official: instead of trying to make me feel stupid.

Plaintiff's Lawyer: If you feel stupid, it's not because I'm making you feel that way.

County's Lawyer: Objection.

County Official: I have self-confidence and I have no problem.

Plaintiff's Lawyer: I don't think you're stupid.

County Official: I think, I don't have any problem answering the question.

Plaintiff's Lawyer: I think you're playing games with me.

Is this beginning to sound like the Abbott & Costello routine as to "Whose" on First, "What's His Name" is on Second, and "I Don't Know" is on Third?

County's Lawyer: Dave, the word "photocopying" is at issue in this case, and you're asking him whether something is or isn't a photocopy machine, which is a legal conclusion --

Plaintiff's Lawyer: This isn't a patent case. There's no statute that defines, where I'm asking him to define technology for me. I'm asking -- I want to find out from a layperson's perspective, not an engineer's perspective, not a technician's perspective, but from, I have an idea.

Plaintiff's Lawyer: How about this: Have you ever heard the term "photocopier" or "photocopy" used in the Recorder's office by anybody?

County Official: Photocopy? I'm sure in the time I've been there someone has used the term.

Plaintiff's Lawyer: And have you ever heard them use it in referencing a particular device or machine within the Recorder's office? By way of example, "can you photocopy that for me?" That's an example of office parlance.

County Official: That particular terminology I've not witnessed.

Plaintiff's Lawyer: What was the context that you've heard the term "photocopy" used in the Recorder's office?

County Official: I'm sure it's been used. I didn't say I remembered a specific instance.

Plaintiff's Lawyer: All right. But you have a general understanding that people have used the term "photocopy" within the Recorder's office in terms of something that could be done there; is that true?

County Official: I'm sure it's been used. I don't remember a specific instance or how it was used. I'm sure it's been used.

Plaintiff's Lawyer: And is it fair to say that it's been used in terms of being able to copy one piece of paper onto another piece of paper using a machine? No? Not sure of that?

County Official: I'm sure it's been used. I don't recall a specific instance in which it was.

If you think this is finally over, no, there is regrettably more to this fiasco.

Plaintiff's Lawyer: Do you have a secretary?

County Official: No.

Plaintiff's Lawyer: Does anybody there have a secretary?

County Official: Yes.

Plaintiff's Lawyer: Have you ever heard a secretary use the term "photocopy"?

County Official: No.

Plaintiff's Lawyer: Have you ever, do you have machines there where I can put in a paper document, push a button or two, and out will come copies of that paper document also on paper? Do you have such a machine?

County Official: Yes, sir.

Plaintiff's Lawyer: What do you call that machine?

County Official: Xerox.

Plaintiff's Lawyer: Xerox. Is the machine made by the Xerox Company? Is that why it's called Xerox?

County Official: No.

Plaintiff's Lawyer: So Xerox, in the parlance that you've described, the language that you've described, is being used generically as opposed to describing a particular brand; is that right?

County Official: All of my life I've just known people to say Xerox. It's not commonplace to use the terminology that you're using.

Plaintiff's Lawyer: You mean it's more, people say Xerox instead of photocopy?

County Official: If you're referring to a type of machine where you place a piece of paper on the top and press a button and out comes copies of it, they usually refer to it as a Xerox.

Plaintiff's Lawyer: Have you ever heard it referred to as photocopying?

County Official: Not with my generation, no.

By now I think you have the picture, but the deposition goes on from here. Some of it is reprinted in the Plain Dealer story and, apparently the exchange as to "what is a copy machine" goes on for 10 pages of transcript. This is obviously an extreme example of deposition misconduct but reinforces my jaded view that the return on dollars spent in deposition discovery in a construction dispute is rarely worth the cost.

 

Full post as published by Construction Law Blog on March 28, 2011 (boomark / email).