Depo & Discovery Responses/Response to Cross Examination/5th Amend/Alt Suspect

Cain v. Abel (2015) 

Interrogatories are written questions and answers exchanged by the parties during the discovery stage of a civil case. One party sends a list of questions, and the other party answers them. Since such discovery responses are statements that “the party manifested that it adopted or believed to be true” (MRE 801(d)(2)(B)), those answers are not hearsay if offered by the opposing party, though other evidentiary objections may still apply. 

Snead v. Stone (2016) 

Because interrogatory responses are created and exchanged during discovery, they are not automatically part of the trial record. Instead, as with a substantive stipulation, a party wishing to make an interrogatory answer part of the trial record must seek the court’s leave to read that interrogatory question and response (or part of question and response) onto the record. 

Midlands Television Studios v. Kosack (2019) 

In lieu of submitting an entire deposition into evidence, a party may instead elect to read excerpts of a deposition onto the record. The excerpt must include the full question(s) asked and the full answer(s) given, unless both sides agree to specific redactions. Any excerpt read onto the record is still subject to the Midlands Rules of Evidence. Should a party elect to read excerpts of a deposition onto the record, that party cannot also submit the deposition itself into evidence. 

Rosen v. Groff (2020) 

In Midlands, substantive objections are not appropriate during a deposition. As a result, failure to object to a question during a deposition does not preclude a party from objecting to the deposition (or an excerpt under Midlands Television Studios v. Kosack) being offered at trial. 

Pathan v. White (2024) 

Depositions are distinct from affidavits. Whereas witnesses are required to include all relevant and pertinent information in an affidavit, the only obligation a witness has during a deposition (other than telling the truth) is to answer the questions posed to the witness. If a deposing attorney fails to ask a relevant question during the deposition, it is not the witness’s obligation to provide that information. 

Moore v. Campbell (2014) 

Civil case arising from alleged assault. The plaintiff was called as a witness and testified fully on direct examination. On cross examination, however, the plaintiff failed to respond to some questions, purportedly because of a condition arising from the assault. Held: The judgment for the plaintiff must be reversed. The reason why the witness failed to respond to the questions on cross examination is immaterial. If a witness becomes unable or unwilling to respond to otherwise proper questions on cross examination, the trial court must strike the witness’s testimony in its entirety. 

McDonald v. Tiamiyu (2015) 

The privilege against compulsory self-incrimination protected by both the United States and Midlands Constitutions is inapplicable to civil cases, including Slayer Statute proceedings. A party who is still subject to a risk of prosecution may, of course, decline to testify. But, unlike in criminal cases, the fact finder in a civil case is permitted to draw an adverse inference from a person’s decision not to testify or refusal to do so, and the opposing party is likewise free to comment on such failure. 

Borealis Industries v. Ellen Nora Hobbs (2001) 

Plaintiff sued defendant for computer fraud, claiming that she initiated a malware attack that ultimately resulted in the loss of millions of dollars. At trial, defendant argued that she was not liable because someone else conducted the malware attack. Plaintiff argues that defendant should have been precluded from raising an alternative suspect argument because defendant did not plead any affirmative defenses. Held: Defendant does not need to plead an affirmative defense to argue an alternative suspect theory. Defenses and affirmative defenses are different. Whereas affirmative defenses involve admitting the acts in question but claiming a legal justification for those acts, pure defenses deny committing the acts entirely. An alternative suspect theory is a pure defense, not an affirmative defense. As a consequence, defendant is free to argue an alternative suspect theory when disputing a claim without needing to raise an affirmative defense.