GEORGE BERLEME,
Plaintiff,
v.
TANIELU MATAGIESE, OLOSEPU TUILETOA,
PETER MILLER, individually, and NATIONAL PACIFIC INSURANCE LIMITED,
jointly and severally, Defendants.
High Court of
Trial Division
CA No. 38-98
[3ASR3d119] [1] Although pre-trial discovery is broad, deposition
testimony is limited to a factual examination, and may not be used to examine
as to argumentative matters, or to elicit conclusions, opinions, or opinion
evidence and must not require an expert opinion, or require inferences which
may be drawn from facts.
[2] An evasive or incomplete answer is treated as a failure to answer,
and a motion to compel will be granted in such instance.
[3] A defendant is entitled to have the plaintiff’s attorney deposed to
answer any question relating to anything contained in the complaint which the
defendant does not understand and wants amplified, and is entitled to be told
what proof the plaintiff has to support such charges.
[4] A motion to compel will not be granted as to a question which is
argumentative and serves no purpose in providing additional discovery
information.
[5] Opposing counsel may be deposed when no other means exists to
obtain the desired information, and the information sought is relevant and
nonprivileged, and the information is crucial to case preparation.
[6] Objections to the form of the question are proper objections for
deposition, especially if it presumes a predicate.
[7] Where an objection to a
question is based on attorney-client privilege, the basic rationale for
asserting the privilege must be elicited for the court to make a meaningful
evaluation of the privilege claim.
[8] A party is not required to
answer questions which are not within his knowledge, and limits exist as to what
a witness should be required to do in order to prepare to answer oral
questions.
Before KRUSE, Chief Justice, LOGOAI, Associate Judge, and SAGAPOLUTELE,
Associate Judge.
Counsel: For
Plaintiff, Roy J.D. Hall, Jr.
For Defendants, Jennifer L. Joneson
ORDER DENYING IN PART AND GRANTING IN PART DEFENDANTS
MOTION TO COMPEL
On
The purpose of pre-trial discovery is to (1) narrow and clarify the
basic issues between the parties and (2) to ascertain facts or information
relating to those issues in advance of trial. Hickman v. Taylor, 329
[1] Although discovery is broad, deposition testimony is “usually limited
to a factual examination, and may not be used to examine as to argumentative
matters, or to elicit conclusions, opinions, or opinion evidence and must not
require an expert opinion, or require inferences which may be drawn from
facts.” 27 C.J.S. Discovery § 32(1) (1959 & Supp. 1985). Objections are also proper as to the form of
a question, especially if it assumes a predicate. See T.C.R.C.P.
32(d)(3)(B) (objections to the form of the question which “might be obviated,
removed, or cured if promptly presented” are waived if not seasonably made
before or during the deposition).
[2] The motion to compel is granted as to questions 3, 4, 7, 8, 9, and 10.
Under T.C.R.C.P. 37(a)(3), an evasive or incomplete answer is treated as a
failure to answer. For question 3, Berleme failed to provide what factual basis
he has, if any, to support his allegation that defendant Peter Miller, the
Branch Manager of defendant National Pacific Insurance Limited (“NPI”), was
unfit to perform his job and should be removed. Berleme claimed that the facts
are “legal facts that I have no knowledge of.” (Berleme Depo. 38:3-4). Berleme is compelled to answer the facts
underlying the legal basis of his claim.
Similarly, Berleme was evasive as to question 4. Defendants provided a
clear question in asking, “Are there any other false statements that you
believe are the basis for [your] complaint for fraud.” The response in this
instance was “You have to be more specific” and “You’ll have to see my lawyer
because if I say no, you’d go with—if I say yes, you’d say what are they so see
my lawyer, please. Jennifer, you must remember –.” As the purpose of the
discovery is to ascertain the underlying facts relating to the claims alleged,
Berleme was clearly being evasive, and reluctant to provide the facts of his
claim. Berleme is compelled to answer this question and any follow-up questions
related to the answers given in response. [3ASR3d121]
As to
questions 7, 8, 9, and 10, the objection was that the question called for a
legal conclusion. However, Defendants’ attorney specifically requested the
facts supporting the legal claim. Facts upon which the general allegations of a
complaint are found and the claimed relationship between such facts are not
properly objectionable on the ground that they call for legal conclusions. See B-H Transp. Co. v. Atlantic &
Pacific Tea Co., 44 F.R.D. 436, 438-9 (N.D.N.Y. 1968). In addition, a defendant is generally
entitled to discover information that clarifies allegations of a complaint and
to determine what proof supports those allegations. Brown v. Waco Fire & Casualty Co.,
73 F.R.D. 297 (S.D.
[3] In certain situations, Berleme requested that Defendants’ attorney ask
or see his attorney. The court in Brown v.
[4-5] The motion to compel is denied as to the following questions: 1, 2, 5,
6, 11, 12, 13. In question 1, Defendants request the court compel Berleme to
answer the question, “Because you don’t trust anybody to make a kind gesture,
you’re calling him a liar?” This question is clearly an argumentative question
which serves no purpose in providing additional discovery information.[1]
The motion
to compel is also denied as to question 2. Despite Defendants’ assertion that
Berleme failed to answer the question as to what led him to believe that he had
a right to challenge defendant NPI’s decisions about hiring and firing
employees, Berleme did in fact provide information regarding the basis for
these claims. Rather than saying “see my lawyer” or refusing to answer the
question as asserted by Defendants, Berleme responded forthrightly by stating:
He showed me, in his second meeting, that he was doing
something which wasn’t quite legal by offering me to pay me, which he didn’t
have to do, and out of what he called a [3ASR3d122]
dummy account which I don’t know the law. But I do know—I have a feeling
when something is right or wrong. And
that was the reason why I took—I did not accept his two thousand, but I took it
to my solicitor.
(Berleme Depo. 34:14-15). In
addition to the above, Berleme also based his belief, that he could challenge
NPI’s decision, on the advice of his attorney. (Berleme Depo. 36:7).
[6] As to
question 5, Defendants asked, “With that information, you didn’t give up
anything, you didn’t settle the case, you didn’t go out and commit to a certain
court of action at the hospital or incur expenses as a result of your
conversations with them; isn’t that true?” (Berleme Depo. 41:7-10). Berleme’s counsel objected to the form of the
question. Objections to the form of the question are proper objections for
deposition, especially if it presumes a predicate. See T.C.R.C.P. 32(d)(3)(B).
Rather than filing a motion to compel, counsel could have easily
rephrased the question to elicit the information desired.
[7] For question 11,
Berleme’s attorney objected to the question based on the attorney-client
privilege. Defendants’ attorney, however, failed to elicit information from
Berleme’s attorney articulating the basic rationale for asserting the
privilege. The court, therefore, is without a record to permit a meaningful
evaluation of the privilege claim. The motion to compel for this question,
therefore, is denied.
[8] In regards to question 12
on Exhibit 2, Berleme is not required to answer questions which are not within
his knowledge. See Besly-Welles Corp. v. Balax, Inc., 43 F.R.D. 368, 371
(E.D. Wis. 1968) (limits exist as to what a witness should be required to do in
order to prepare to answer oral questions). Berleme admitted forthrightly that
he had not seen Exhibit 2 before. Berleme, therefore, rightfully refused to
answer any questions on Exhibit 2 posed by Defendants’ persistent attorney.
Lastly, the court notes that
resolving discovery disputes is viewed as an unfortunate use of the court’s
resources. In future, this court expects a good faith effort by both parties in
resolving discovery disputes before court action.
The parties will bear the burden of
their own costs.
It is so Ordered.
**********
[1] Under