One of the more frustrating aspects of defending power tool cases occurs during the deposition of the plaintiff – at the point where he attempts to describe in minute detail how his accident happened. Then, at trial, just when you think you have the plaintiff “nailed down” to a specific accident scenario, his testimony seems to describe a completely different event. With enough wiggle room in his testimony, a well-coached plaintiff can describe his accident almost any way he wants to support his overall claim of product defect.
Enter the accident demonstration video recorded during the plaintiff’s deposition!!
The Federal Rules explicitly provide for video (audiovisual) recording of the plaintiff’s deposition [Fed. R. Civ. P. 30(b)(3)], but are silent as to whether a defendant may require a plaintiff to demonstrate during the deposition how his accident occurred. Nevertheless, a strong argument can be made that the broad scope of discovery allowed by the Rules indisputably permits accident demonstrations during the video-recorded deposition of the plaintiff.