In a recent deposition, opposing counsel was pressing my client to make a drawing by hand of the position of a horse lying in a roadway over which his client had allegedly driven her Ford Explorer. I did not want my client to draw because I thought that the result would be inaccurate in scale and would only prove confusing or misleading. I instructed my client not to draw contending that a deponent had no duty to provide a nonverbal response and was only required to respond orally under Civil Rule 30 (“Depositions Upon Oral Examination”).
Thereafter, counsel moved the court to resume the deposition and to compel my client to draw. In opposition, I made the above-referenced arguments and cited a Florida case, Udkoff v. Hiett, 676 So.2d 522 (Fla.App. 1996). In Udkoff, the Florida Court of Appeals held that the trial court could not order the defendant to draw a diagram of an accident scene because the applicable rule of discovery (one very similar if not exactly the same as Washington’s rule) did not impose a duty upon a party to draw at a deposition. The Udkoff court stated that: “Although a witness may choose to draw something to help explain his or her testimony, a trial court is without any authority to compel the deponent to create a drawing.”
The court in my case ruled in a similar fashion denying the motion to compel citing Civil Rule 30, as well as the Udkoff case. The judge in so ruling pondered out loud whether a witness at trial might be required to draw noting that drawing by trial witnesses was a common occurrence in his courtroom. In cases where liability can hinge upon a precise location of objects or other facts, counsel should give some thought to whether a drawing might be helpful or not. Cf. Emerson Electric Co. v. Superior Court, 16 Cal.4th 1101 (1997) [deponent required to provide nonverbal as well as verbal ‘answers’ at videotaped deposition under former Cal.Civ.Pro.Code 2025(o)]. See also, State v. Koontz, 145 Wn.2d 650 (2002) (re: replay of videotaped testimony during trial); Emerson Elec. Co. v. Superior Court, 16 Cal.4th 1101, 946 P.2d 841 (1997); Western Gas Const. v. Danner, 97 F. 882 (9th Cir. 1899).