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May I establish "Foundation" of exhibits about which I have personal knowledge or some expertise as I depose the opposition?

Roseville, CA |

When I deposed a Homeowner Association Officer , Opposing Attorney stated 3 - 5 objections for nearly every one of my questions . " Lacks Foundation " was a popular refrain when showing the HOS Officers photos of homes and Architectural Modifications within the HOS . 1 . If I know a photograph is of a certain address , even though not readily apparent in the photograph , may I establish the Foundation of the address by my personal knowledge ? 2 . 1 . If I know a photograph depicts a window of a certain size , even though the size may not be readily apparent in the photograph , may I establish the size of the window for the record by my personal knowledge or expertise ? In some photos I can tell exact size . In other photos I can tell approximate size .

Attorney Answers 4


  1. Best answer

    There is a difference between you personally testifying (whether at a deposition or at trial) to get a photograph to be admissible for evidence purposes, and what has to be done with another witness to accomplish the goal of "admissibility". The "foundation" objection, when it comes to questioning a witness (whether yours or the adversary" is that, generally speaking, the witness has to be asked and state if he/she is familiar with what is depicted in the photograph , and if the answer is "yes", proceed with further questions. (of course, there are many different ways to ask a question, which is why an experienced trial attorney will know how to approach the particulars of the subject). If the answer is "no", then you can be stopped from asking further questions about the picture; unless you know how to get around that denial. Obviously, if the attorney is preventing you from asking questions, or allowing a witness to answer, based upon a technicality, he is attempting to take advantage of his knowledge of the rules of evidence and your lack thereof.


  2. When you depose a witness, you must establish foundation via that witness's personal knowledge, not your personal knowledge. The witness must be able to recognize the depiction in the photograph before you can ask specific questions about the contents of the photograph. Your own personal knowledge is completely irrelevant for purposes of establishing a proper foundation.

    Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This Avvo.com posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.


  3. At trial you can establish the foundation by testifying what the picture shows. However, your estimate of size isnt strong evidence. Id suggest you actually measure the sizes of what is depicted if the size makes any difference. Once you have testified and laid the foundation, then you can ask later witnesses questions. Sometimes this can be done in advance of trial by stipulation with opposing counsel .


  4. I disagree with my colleagues. Establishing foundation is necessary when introducing evidence, not when seeking discovery. In fact, generally at a deposition you first ask what the deponent thinks he knows and only then ask how he knows it. That is, the foundation follows the more substantive evidence. Many attorneys do in fact ask foundational questions when asking about documents or photographs, but only so that disputes about its authenticity do not later arise.

    If the opposing attorney objects on the grounds of lack of foundation, you may want to rephrase the question, but you can, as you state, establish foundation at trial yourself. Otherwise, ignore him and demand an answer.

    The only objection that gives a deponent cause to refuse to answer is privilege. If your questioning is abusive or if you persist in asking irrelevant questions, the deponent's attorney may suspend the deposition and seek a restraining order.

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