I've been a Delaware lawyer for a while now, but today is the first time I've seen a case where a party submitted video evidence of a deponent acting suspicious.
I gather from the briefing that the case was already quite contentious, as the plaintiff in Inpria Corporation v. Lam Research Corporation, C.A. No. 22-1359-CJB, D.I 506 (D. Del. Apr. 28, 2025) had requested a deposition "focused solely on document creation, retention and storage." Id. at D.I. 293. According to the briefing, the deponent "referenced another screen, positioned to his left, after questions were asked but before providing an answer," but when asked about what was on the screen, he testified that he "didn't really consult the notes." Id. In an apparent effort to contradict this assertion, the plaintiff actually produced video files of the deposition which allegedly showed the defendant looking shifty.
Accordingly, plaintiff moved to compel production of the notes. Judge Burke, however, denied the motion finding that the evidence that the deponent relied on the notes was insufficient:
[I]n the cited portions of Mr. Trussell's deposition . . . he says he did not review them substantively at all. No other portion of the deposition transcript provided to the Court indicates otherwise. And though Plaintiff submitted videotaped excerpts of the deposition to attempt to show that Mr. Trussell was in fact using the notes to craft his testimony, the Court has reviewed those excerpts along with others provided by Defendant, and it cannot clearly determine that this is what was happening (especially in light of Mr. Trussell's statements to the contrary). If Plaintiff's counsel thought that Mr. Trussell was looking over and utilizing the notes during different points in the deposition, it could have tried to make a better record to confirm this . . . .
Id., D.I. 506 (internal citations omitted).
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