Written by Ryan B. Luther, Attorney At Law SMTD Law LLP

California Code of Civil Procedure section 2025.230 permits a party to notice the deposition of a business entity, requiring that that entity designate the person “most qualified to testify on its behalf” as to matters specifically described in the deposition notice.  Section 2025.230 requires the designated “Person Most Qualified” or “PMQ” to testify based upon information “known or reasonably available to” the deponent.  Courts have construed this provision to require a PMQ designee to educate himself or herself as to information available to the entity on a given subject.  Even so, what happens when a PMQ designee is not sufficiently prepared and, as a result, answers “I don’t know,” to a question regarding a topic for which the witness has been designated as the PMQ? Can the entity be barred from providing testimony on the issue at a subsequent trial or arbitration?

While there is certainly room for argument that an “I don’t know” answer from a PMQ deponent should bar another witness from providing substantive testimony on the issue at trial or arbitration, waiting to seek to preclude the evidence at trial or arbitration is not advisable.  For example, the decision in Maldonado v. Superior Court (2002) 94 Cal. App. 4th 1390, 1398 suggests that more should be done.  Specifically, the Maldonado court held that barring such testimony is inappropriate, at least absent additional evidence of egregious conduct, unless the party seeking the testimony has “gone to court for relief,” in the form of a motion to compel, obtained an order compelling the testimony, and the deponent nonetheless subsequently failed to provide it.   Indeed, Code of Civil Procedure section 2025.480(k) expressly authorizes an evidence sanction only in the event the deponent “fails to obey” such an order.

Accordingly, when a deponent is unable to provide an answer to a question on a topic for which that deponent has been designated as PMQ, the entity designating the deponent may nonetheless be able to provide trial or arbitration testimony on the subject, at least absent a previously disobeyed order compelling the response.  Of course, counsel will be able to comment on the conflicting or arguably inconsistent testimony.