An Examination of
Examinations Under Oath - Part 1
The peculiarities of Examinations Under Oath and how they differ from depositions are important concepts for Public Adjusters to appreciate.
An Examination Under Oath and a deposition taken in a lawsuit are both question and answer sessions that are recorded and can later be used as evidence or for cross-examination. Important differences distinguish them and favor the EUO as an investigative tool in the insurer's arsenal. The EUO also provides a Public Adjuster with an opportunity to resolve seemingly problematic issues and get the adjustment back on track.
The EUO covers a wider range of facts and issues. A deposition is limited to relevant evidence or the quest for admissible evidence in a proceeding defined by a set of pleadings. The questioner at an EUO determines the relevance of a question, and as it is an aspect of an on-going investigation, the issues are not defined and hence relevance is difficult to define. The questioner at an EUO does not have to defend, define or disclose the basis for a question. A lawyer at a deposition may have to defend the right to inquire into any subject that is not readily apparent from the pleadings.
Personal Identifying Information
At an EUO, the insured is usually requested or required to answer questions as to identity. Name, age, date of birth, address, telephone number, Social Security Number, driver's license number, passport number, marital status, names and ages of children, prior residences, schools and dates attended, degrees obtained, employment and prior employment are among the disclosures routinely made at EUOs. Depositions, conversely, usually short-circuit the process since minimal identifying information is contained in the Complaint (name, address or other jurisdictional requisites), and the issues are joined on matters usually not germane to identity.
Tax returns, bank records and financial statements/information are usually also demanded at an EUO. Document production in a lawsuit is constrained by the Rules of Court (usually phrased in some form of non-privileged relevant material or material reasonably likely to lead to the discovery of admissible evidence) and counsel routinely battle over production of anything considered to be potentially harmful. An insured, on the other hand, runs the risk of having the claim denied for non-cooperation if the requested documents are not produced and has no neutral party [i.e. Judge] overseeing the proceeding to determine questions of privilege, confidentiality or relevance.
One word of caution. Documents containing personal identifying information (including the transcript of the EUO) are subject to federal privacy laws. You, as Public Adjuster, should so advise your insured and suggest that the insurer agree on the record of the EUO to appropriate privacy protections and proper destruction of those records after the matter is concluded.
Lawyers routinely interpose objections to questions at depositions and spend pages arguing over them. In New Jersey, the Rules have been amended in an attempt to minimize the interruption by limiting the grounds for objection to 4 categories: (1) form of the question; (2) claim of privilege; (3) claimed right to confidentiality; and (4) a previously entered protective order. Note that relevance is not a ground for objection.
No similar provisions govern an EUO. Indeed, technically, objections are not allowed at all. The questioner can proceed without interruption, subject only to the subsequent inability to use the answer effectively or at all, if it is later determined that the question was improper, poorly framed, misleading or misunderstood. Despite this, it is always appropriate for counsel (and in the absence of counsel, a Public Adjuster) to interrupt to prevent the participants from speaking at cross-purposes, without actually communicating, and thereby creating an erroneous record. While help is usually welcomed, hindrance is not.
An insured who is properly prepared for an EUO should be able to tell the examiner if he/she does not understand the question, or is confused by the question, or if the question does not make sense. An insured should also be advised not to offer a guess as an answer, not to speculate, and not to testify to a logical deduction as a fact. Lack of knowledge ("I don't know") or failure of memory ("I don't remember"), if truthful, are always appropriate responses.
As always, if you have questions or if we can assist you in dealing with a demand for an EUO, please feel free to contact us at 973-538-4100 or at email@example.com. We are here to help!