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Bronson v. Samsung Electronics America, Inc.

United States District Court, N.D. California

July 3, 2019

ALEXIS BRONSON and CRYSTAL HARDIN, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
SAMSUNG ELECTRONICS AMERICA, INC. and SAMSUNG ELECTRONICS CO., LTD., Defendants.

          ORDER DENYING MOTION TO STRIKE AND VACATING HEARING

          WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

         For twenty years on the bench, I have tried to inform lawyers about the inherent ambiguity in a leading question premised on a negative, then ending in the word “correct?” or “right?” This motion perfectly illustrates the problem. At issue is the following question and answer during deposition testimony (Dkt. No. 142-5, Exh. 3, 162:5-7):

Q: Because you didn't intend to have it fixed, right?
A: No.

         Does the answer mean “No, that is not right” or does it mean “No, I did not intend to have it fixed”? Both answers - entirely opposite in meaning - are equally plausible. It is impossible to be sure. The response is inherently ambiguous. This ambiguity is not the fault of the witness. It is entirely the fault of counsel and the form of the question.

         We all understand that counsel on adverse examination prefer leading questions. But the unambiguous way to ask a leading question anchored in a negative is in this form: “You didn't intend to have it fixed, did you?” When, by contrast, the negative leading question ends with “correct?” or “right?” a “yes” or “no” answer will always be hopelessly ambiguous - always and forever, period.

         When “correct?” or “right?” ends an affirmative leading question, no ambiguity occurs, as in “You intended to have it fixed, correct?” It's the negative form that leads to trouble. The entrenched and recurring problem arises from the confluence of (i) the negative leading question, (ii) ending in “correct?” or “right?” and (iii) answered “yes” or “no.”

         For twenty years as a trial judge, I have seen this error time and again. During many trials, out of the presence of the jury, I have alerted counsel to the problem. This unfortunate error spans the continent from big firms to small firms and even to the United States Attorney's office. Some lawyers get the point and improve their form of question. Others, however, just cannot reform. Sometimes, summary judgment motions must be denied on this very ground.

         * * *

         With this in mind, let's turn to the mundane issue at hand, namely whether to allow a correction made by a deponent. The deponent seeks to change an answer as follows. For clarity, the prior answer is lined through and the change is underlined (Dkt. No. 142-5, Exh. 2; Exh. 3, 162:5-7):

Q: Because you didn't intend to have it fixed, right?
A: No. I first wanted to see if they had the part.

         It is unnecessary to recite the chronology relating to the correction at issue, for no issue is raised of timeliness or procedural entitlement of the witness to make a correction. The only issue raised is whether the particular change so reverses the meaning of the original testimony that the change should not be allowed under Hambleton Bros. Lumber Co. v. Balkin Enterprises, Inc., 397 F.3d 1217, 1224-1226 (9th Cir. 2005). Unlike in Hambleton, however, the modifications here were not “changes offered solely to create a material factual dispute in a tactical attempt to evade an unfavorable summary judgment.” Id. at 1225. Here, the question itself injected ambiguity, so it's hard to say the clarification radically alters the original answer. The corrected clarification will be allowed.

         It would have been helpful, perhaps, if defending counsel had objected to the form of the question as ambiguous, but we are not concerned with admissibility at trial. We are merely concerned with the viability of a modification. The fault was ...


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