Is it really safe to testify “I don’t recall” at a deposition?Jan 19, 2023
Many deponents think they can avoid having to admit to certain negative facts or avoid liability by answering “I don’t remember” or “I don’t recall” at a deposition. Whether or not these answers are appropriate depends on the facts of the particular case. Specifically, it will likely depend on whether the deponent (1) should know the answer; and (2) if NOT knowing the answer will harm their case.
Here is an example: An HR professional is deposed about the reason for terminating an employee. The HR professional believes if she responds “I don’t recall” that the company won’t be liable.
Here is the problem. If she is the HR professional responsible for terminations, or she was the person who had knowledge of the performance issues or made the decision to terminate, she SHOULD know the answer to the question. Also, the if the reason for the termination is a legitimate non-discriminatory reason, such as poor performance, violation of company policies, then this is a defense the company can assert to the claim.
Here is how the lawsuit is effected by the “I don’t recall testimony” if improperly asserted:
(1) “I don’t recall” testimony can decrease the credibility of a witness if it’s something he/she should have known or should be able to remember. If a deponent is constantly giving this response, the jury may not believe him/her relative to the rest of their testimony.
(2) If the attorney needs the testimony in order to form the defense for the case, it will be a challenge for the witness to explain why he/she can subsequently “remember” the reason at trial 2 years later if the attorney tries to rehabilitate the witness at a later date.
If you are a deponent or witness in a deposition, retain an attorney to prepare you for the potential deposition questions. Of course it is important for witnesses to answer truthfully to the best of their ability and not to lie under oath. However, an experienced employment law attorney can discuss the potential questions and prepare you for certain “traps” by the other side.
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