Emerson Electric Co. v. Superior Court

KENNARD, J., Dissenting.

At issue in this case is whether a witness at a deposition may be compelled to reenact an event relevant to the litigation. The majority holds that a deposition witness who refuses to reenact an event “fails to answer any question” (Code Civ. Proc., § 2025, subd. (o)) and therefore may be compelled to perform the reenactment.

I disagree. The Legislature has specified in detail the procedures by which parties to a lawsuit may seek discovery, yet has made no provision for compelling deposition witnesses to reenact events. Unlike the majority, I would not upset the Legislature’s careful balancing of interests in the field of civil discovery by judicially creating a new discovery procedure compelling deposition witnesses to perform reenactments.

I

Plaintiff was injured while using a radial arm saw manufactured by defendant Emerson Electric Co. and sold by defendant Sears, Roebuck & Co. (hereafter collectively defendants). Plaintiff sued defendants and others claiming they were legally responsible for his injuries. At plaintiff’s videotaped deposition, defendants’ counsel asked plaintiff’s counsel whether he would allow plaintiff to reenact the accident; plaintiff’s counsel replied he would not. Defendants then moved the trial court for an order precluding plaintiff from introducing at trial any “nonverbal testimony demonstrating the circumstances of the accident” or, in the alternative, for an order under subdivision (o) of Code of Civil Procedure 2025 compelling plaintiff at his deposition to reenact the accident. (Unattributed statutory references hereafter are to the Code of Civil Procedure.)

The trial court denied the order, relying on Stermer v. Superior Court (1993) 20 Cal.App.4th 777 [24 Cal.Rptr.2d 577], which held that the discovery statutes do not authorize a court to compel a deponent to perform a *1114reenactment. Defendants petitioned the Court of Appeal for a writ of mandate. The Court of Appeal granted the writ, disagreeing with Stermer and holding that a deposition witness can be compelled to reenact an event. It directed the trial court to reconsider the matter and to exercise its discretion to decide whether to compel plaintiff to reenact the accident. Plaintiff petitioned this court for review.

II

Nowhere in California’s detailed statutes addressing discovery and depositions has the Legislature explicitly authorized a party to compel a deposition witness to reenact an event. Subdivision (o) of section 2025 does provide that a party taking a deposition may seek an order “compelling [an] answer” if a “deponent fails to answer any question.” The majority holds that by using the phrase “answer any question” in subdivision (o) the Legislature implicitly intended to authorize a trial court to compel a deposition witness to reenact an event.

In my view, the ordinary understanding of the phrase “fails to answer any question,” considered in its statutory context, does not encompass the refusal to reenact an event. Such is the conclusion as well not only of the Court of Appeal in Stermer v. Superior Court, supra, 20 Cal.App.4th 777, but also of the authors of a prominent civil procedure practice treatise (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial 2 (The Rutter Group 1997) 18:708.1, pp. 8E-82.2 to 8E-82.3).

It would be an exceedingly strange locution to describe the refusal of someone to perform a requested physical action as the “fail[ure] to answer [a] question.” The following hypothetical conversation illustrates the implausibility of this construction. A: “I asked her to show me how she had picked up the ball.” B: “Did she?” A: “No. She failed to answer my question.” Instead, in the context of subdivision (o) of section 2025, the meaning an ordinary reader would ascribe to the term “answer” in the phrase “fail to answer any question” is the dictionary’s first definition: “to speak or write in reply . . . .” (Webster’s New Internat. Dict. (3d ed. 1961) p. 90, [definition la].) By contrast, the usage of “answer” to describe a physical action rather than a verbal response, the meaning the majority prefers, usually occurs in the absence of any question, such as in, “The Boston Tea Party was the colonists’ answer to the British tea tax.” The statute here, however, links “answer” to “question,” asking whether the deponent has “fail[ed] to answer any question.” The usual meaning of the phrase “answer [a] question” is narrower than the range of meanings of the term “answer” alone. When one thinks of answers to questions, one thinks of verbal (that is, oral or written) responses, not physical actions.

*1115Moreover, a request to reenact an event is ordinarily phrased as a command punctuated with a period (e.g., “Show us how you were using the saw at the time of injury.”), not as a question punctuated with a question mark. If there has been no question, there can be no failure to answer a question. If the request is phrased as a question (e.g., “Would you show us how you were using the saw at the time of the injury?”) and the deponent answers “no,” there also has been no failure to answer.

Even if one were to conclude, as the majority implicitly does, that considered in isolation the statutory phrase “fails to answer any question” is ambiguous and may mean either the failure to give a verbal response or the failure to perform a requested physical action, any potential ambiguity vanishes when the phrase is considered in the context of the statutory scheme governing depositions and the legislative history of subdivision (o) of section 2025. Those statutes and legislative history demonstrate the Legislature’s understanding of depositions as a procedure in which witnesses give verbal statements; they strongly support the conclusion that a deponent can be compelled only to give verbal responses to questions.

Section 2025 itself authorizes only “oral” depositions: “Any party may obtain discovery within the scope delimited by Section 2017, and subject to the restrictions set forth in Section 2019, by taking in California the oral deposition of any person, including any party to the action.” (§ 2025, subd. (a), italics added; see also id. at subd. (c).) In addition, sections 2020, 2026, and 2027 all describe section 2025 as authorizing “oral” depositions. The word “oral” refers in the most literal way possible to a verbal response spoken by the witness: one issuing from the witness’s mouth. The Legislature’s use of the word “oral” as a limitation on the word “deposition” in section 2025 is strong evidence that the Legislature intended to require of deponents only that they give verbal responses to questions.

Other statutes further reinforce this conclusion. Our statutes describe the response given by a deposition witness as a “statement,” a “declaration,” and “testimony.” (§§ 17, 1878, 2002, 2004, 2025, subd. (l).) These provisions reflect the Legislature’s understanding that a deponent’s obligation is only to provide a verbal response to questions. Section 17, for example, defines the term “depose” as embracing every written “statement,” a term describing a verbal response.1 (Accord, Civ. Code, § 14 [same definition].) Section 1878 defines a deposition witness as a person who makes a “declaration,” another *1116term encompassing only a verbal response.2 Section 2004 defines a deposition as a “written declaration” as well.3 Section 2002 describes a deposition as a form of “testimony,” another term describing a verbal response (section 17 in turn defines the term “testify” as the uttering of a “statement”).4 Likewise, subdivision (l) of section 2025, the provision authorizing the videotaping of depositions, describes the deponent as giving “testimony,” another word describing a verbal response, as well as providing that the deponent’s “testimony” may be recorded by videotape.5 (Italics added.)

The legislative history of subdivision (o) of section 2025 further supports the view that the Legislature intended the term “fails to answer any question” only to mean the failure to give a verbal response, and not the failure to perform a requested physical action. Subdivision (o) is in large measure a continuation of former section 2034, the predecessor provision for sanctioning a deponent for failing to answer a question that was enacted as part of the 1957 Civil Discovery Act. Subdivision (a) of former section 2034 used the identical term “answer any question” to describe the conduct subjecting a deponent to sanction: “If a party or other deponent refuses to answer any question propounded upon examination during the taking of a deposition, the examination shall be completed on other matters or adjourned, as the proponent of the question may prefer. . . . [S]uch proponent . . . may apply to the court ... for an order compelling an answer. . . .” (Stats. 1957, ch. 1904, § 3, p. 3334, italics added.)

Nothing in the 1957 Civil Discovery Act evidences any intent by the Legislature to use the phrase “answer any question” in former section 2034 to authorize courts to compel a deponent to reenact an event. The 1957 Civil Discovery Act included a provision (former section 2019) that, like present section 2025, defined a deposition as an “oral examination.” At the time of former section 2034’s enactment, the definitions of sections 17, 1878, 2002, and 2004 quoted above, which refer to the verbal nature of a deponent’s responses, were already law, having been enacted originally as part of the 1872 Code of Civil Procedure. In addition, the deposition procedure statute that preceded the 1957 Civil Discovery Act confirms that in 1957 the common understanding of a deposition was a series of questions followed by *1117verbal responses: “Depositions must be taken in the form of question and answer. The words of the witness must be written down, in the presence of the witness . . . .” (Former § 2006, enacted in 1872 and repealed by Stats. 1957, ch. 1904, § 1, p. 3321.) Nor does it appear that any case law or commentary regarding the 1957 Civil Discovery Act took the position that reenactments could be compelled under former section 2034, or that a deposition consisted of anything but the questions posed and the verbal responses of the deponent. (See, e.g., 2 DeMeo & DeMeo, Cal. Deposition and Discovery Practice (1986 ed.) ¶5.01(2), p. 5.01-3 [discussing 1957 Civil Discovery Act: “A deposition is a written declaration, under oath . . . . [<fl] ‘ “The term ‘deposition’ is now confined in meaning to testimony delivered in writing; testimony which in legal contemplation does not exist apart from a writing made or adopted by the witness.” ’ ” (Quoting People v. Hjelm (1964) 224 Cal.App.2d 649, 655 [37 Cal.Rptr. 36]).]; accord, Voorheis v. Hawthorne-Michaels Co. (1957) 151 Cal.App.2d 688, 692 [312 P.2d 51] [“In practice the witness usually does not write out the statements but testifies before a commissioner authorized by the court to receive and transmit [the testimony] and to act as transcriber of the oral utterance.”].)

There is no evidence that, in continuing to use the phrase “answer any question” in subdivision (o) of section 2025 in the 1986 Civil Discovery Act, the Legislature intended the phrase to have any different meaning than it had in former section 2034 in the 1957 Civil Discovery Act. The 1986 Civil Discovery Act was initially drafted by a Joint Commission on Discovery appointed by the State Bar and the Judicial Council. The notes to subdivision (o) by the Reporter of the Joint Commission focus exclusively on changes to the procedures for seeking sanctions for the failure to answer a question and suggest no purpose to expand the meaning of the preexisting phrase “answer any question.” (State Bar/Judicial Council Joint Commission on Discovery, Proposed California Civil Discovery Act of 1986, and Reporter’s Notes, reprinted in 2 Hogan & Weber, Cal. Civil Discovery (1997) appen. C, p. 404.)

Both the 1957 Civil Discovery Act and the 1986 Civil Discovery Act continue the Legislature’s practice of acting explicitly and with detail in defining the procedures for particular discovery methods, and for depositions in particular. (See, e.g., former §§ 2006, 2020-2021, 2023-2026, 2031-2032, and 2036-2038, all repealed by Stats. 1957, ch. 1904, § 1, p. 3321 [statutes governing depositions before enactment of the 1957 Civil Discovery Act].) In light of this history, it would have been extraordinary for the Legislature in the 1986 Civil Discovery Act to have created a duty to perform reenactments merely by attaching a new and unspoken implication to the recycled statutory phrase “answer any question.”

*1118Finally, there is a larger policy reason why this court should refrain from imposing discovery obligations that the Legislature has not explicitly set forth in the rules governing discovery procedure. Because discovery is a largely self-executing enterprise, in which the parties are expected to, and do, resolve most of their differences without judicial involvement, it is important that the rules governing it be clear. Uncertainty as to the rules increases the likelihood that the parties will be unable to resolve discovery disputes without the trial court’s intervention. Although it is important that discovery rules be clear, the normal method for the clarification of statutes and rules—appellate litigation—is less available than usual. Discovery issues comprise an important part of the trial courts’ business, and yet by their nature are rarely litigated on appeal. By the time of appeal, most discovery issues are moot; those that are not rarely amount to reversible error. Obtaining interlocutory review of discovery issues by petition for a writ of mandate is equally difficult. (See Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 169-170 [84 Cal.Rptr. 718, 465 P.2d 854].)

Because appellate review is less available to perform the role of statutory clarification, certainty is best served if the procedures for discovery are limited to those clearly set forth in the statute. We followed this policy in Bailey v. Superior Court (1977) 19 Cal.3d 970, 977-978 [140 Cal.Rptr. 669, 568 P.2d 394], in which we held that depositions could not be videotaped because the Legislature had not expressly authorized videotaping. We followed it again in Edmiston v. Superior Court (1978) 22 Cal.3d 699 [150 Cal.Rptr. 276, 586 P.2d 590], where we held that a court could not order the videotaping of a medical examination conducted for discovery purposes because the Legislature had not affirmatively authorized such videotaping. (Id. at p. 704 [“Videotaping is not affirmatively authorized in this case and, as in Bailey, whether it should be ‘is a matter for the Legislature to determine.’ ”].) I would adhere to this policy in this case as well.

Ill

The majority reaches a different conclusion than I do, holding instead that a deposition witness may be compelled to reenact events relevant to the litigation. In my view, the hodgepodge of reasons it puts forth in support of that conclusion is not persuasive. I shall address each of these reasons in turn.

The majority relies on a possible meaning of “answer” it finds in a dictionary: “to act in response to a request.” (Webster’s New Internat. Dict., supra, p. 90, italics added [definition 5].) The majority ignores that the statutory phrase we are construing is “answer any question” (§ 2025, subd. *1119(o), not “answer any request.” As discussed above, a request is not a question, and the phrase “answer any question” has a narrower meaning than the word “answer” considered in isolation. Moreover, as I have shown, when subdivision (o) is considered together with the rest of section 2025 and the other statutes bearing on depositions and witnesses (§§ 17, 1878, 2002, 2004), it is clear that the Legislature has authorized courts to compel only verbal responses from deposition witnesses.

Subdivision (l) of section 2025, on which the majority relies, does not advance the majority’s position. Subdivision (l) provides in part as follows: “Examination and cross-examination of the deponent shall proceed as permitted at trial under the provisions of the Evidence Code.” (§ 2025, subd. (l)(1).) There is nothing to suggest that the Legislature intended by this language to authorize compelled reenactments. The words of subdivision (l) themselves say nothing about reenactments, nor is there any “provision of the Evidence Code” compelling a witness to perform a reenactment. Instead, the Evidence Code provisions governing the examination and cross-examination of witnesses address such matters as the order of examination and the scope of direct examination, cross-examination, redirect examination, and recross-examination. (Evid. Code, §§ 760-778.) hi the absence of any Evidence Code provision providing that a trial witness may be compelled to perform a reenactment, there is no reason to believe that the Legislature understood subdivision (l) to implicitly authorize compelled reenactments.

The majority also asserts that our decision in Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 376-377 [15 Cal.Rptr. 90, 364 P.2d 266] supports its holding. To the contrary, there is no contradiction between Greyhound and my conclusion that the Legislature has not authorized compelled reenactments. At issue in Greyhound was the scope of a trial court’s discretion to deny discovery that was both substantively and procedurally authorized by the discovery statutes; this court held that in deciding whether to exercise its discretion to deny otherwise proper discovery a trial court must act “liberally in favor of disclosure.” (Id. at p. 377.) Unlike Greyhound, at issue here is whether the discovery sought has been procedurally authorized by the Legislature, not whether a court in its discretion should deny discovery that is procedurally authorized.

Whether information is relevant and discoverable in the abstract is a different question from whether the Legislature has authorized the particular procedure a party seeks to use to obtain the information. It is entirely consistent to acknowledge, as we did in Greyhound Corp. v. Superior Court, supra, 56 Cal.2d 355, the broad scope of relevance in discovery and the presumption that a trial court should not ordinarily prohibit procedurally *1120authorized, relevant discovery, and yet require parties to comply closely with the procedures established by the Legislature for obtaining relevant information. We drew this distinction in Bailey v. Superior Court, supra, 19 Cal.3d 970, and Edmiston v. Superior Court, supra, 22 Cal.3d 699, when we concluded that a trial court could not order the videotaping of depositions or of medical examinations for discovery purposes because, despite the relevance of the information sought, in neither case was videotaping expressly authorized by statute.

The majority also attempts to spin the Senate Judiciary Committee’s statement that “[i]n general, the revisions [of the 1986 Civil Discovery Act] would bring California law closer to the discovery provisions of the Federal Rules of Civil Procedure” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 169 (1985-1986 Reg. Sess.) p. 9) into an expression of specific intent by the Legislature to authorize compelled reenactments by deponents. In the majority’s view, the Legislature intended by this general and unfocused statement directed at the whole of the 1986 Civil Discovery Act to incorporate wholesale the state of federal law circa 1986 concerning compelled reenactments; in the majority’s view also, federal law at that time conclusively authorized compelled reenactments.

This argument ignores the actual text of section 2025, as well as that of the other relevant statutory provisions discussed above. As I have demonstrated, those provisions make clear that a deponent need only provide verbal responses. In addition, as noted above, the phrase “answer any question” of subdivision (o) of section 2025 had its origin in former section 2034 of the 1957 Civil Discovery Act and was retained unchanged in the 1986 Civil Discovery Act. Therefore, it was not one of “the revisions . . . bringing] California law closer to the discovery provisions of the Federal Rules of Civil Procedure” (italics added), and the duty imposed by the phrase on deponents remains unchanged as well.

Even considered in isolation, however, the majority’s reliance on the Senate Judiciary Committee’s statement is misplaced, for the statement cannot bear the weight the majority puts on it. The sentence immediately following the statement relied on by the majority specifically refers to depositions. It reads: “Several discovery tools—interrogatories, depositions, and requests for admissions—would be sharply limited.” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 169 (1985-1986 Reg. Sess.) p. 9, italics added.) The majority suggests that a legislator, reading the committee’s vague statement about bringing California law “closer” to federal law followed by its statement that the bill would “sharply limit” depositions, would have concluded that the bill would expand depositions by silently *1121adopting federal law governing compelled reenactments while continuing to use unchanged the preexisting phrase “answer any question” from the 1957 Discovery Act. This suggestion is farfetched, to say the least.

Nor in any event was it a settled question at the time whether under federal law deponents could be compelled to perform reenactments. Nothing in the Federal Rules of Civil Procedure expressly authorized compelling deponents to perform reenactments. When our Legislature enacted the 1986 Civil Discovery Act, only two federal trial courts had addressed whether a deponent could be compelled to perform a reenactment; both courts were outside California and one of these decisions was by a federal magistrate. (Roberts v. Homelite Div. of Textron, Inc. (N.D.Ind. 1986) 109 F.R.D. 664, 668 [concluding that deponent could be compelled to reenact event]; Carson v. Burlington Northern Inc. (D.Neb. 1971) 52 F.R.D. 492, 493 [same].) No federal appellate court had decided the question, and to this day none has. The notion that anyone in the Legislature even knew of these two federal trial court decisions is questionable; the notion that anyone in the Legislature considered the matter a settled question of federal law and considered the Senate Judiciary Committee’s vague and general statement about bringing California law “closer” to federal law to have the effect of adopting federal law as the rule of decision for California courts on this narrow issue is even harder to accept.

The majority also seeks support for its holding in the Legislature’s action in 1980 to authorize, in former section 2019, recording depositions on videotape. (Stats. 1980, ch. 970, § 1, p. 3074.) That provision does not assist the majority, for the Legislature’s purpose in permitting the videotaping of depositions was not to authorize compelled reenactments but only to expand the methods of recording depositions in response to our decision in Bailey v. Superior Court, supra, 19 Cal.3d 970. (See Assem. Com. on Judiciary, Digest of Assem. Bill No. 2473 (1979-1980 Reg. Sess.) p. 2 [noting that bill would respond to Bailey by expressly authorizing recording depositions by videotape]; Sen. Com. on Judiciary, Analysis of Assem. Bill No. 2473 (1979-1980 Reg. Sess.) p. 2 [same].) Bailey only decided that there was no statutory authority for recording depositions by videotape, and did not address whether a deponent could be compelled to reenact an event. Thus, the Legislature’s expansion of the authorized methods of deposition recording in response to Bailey does not suggest that the Legislature also intended to authorize compelled reenactments.

The legislative history of the 1980 enactment also makes clear that it was intended only to provide an alternative method for recording depositions, and does not suggest that the provision was intended to expand the scope of *1122a deponent’s obligations by authorizing compelled reenactments. The Senate Judiciary Committee analysis states: “This bill would provide that a party could, in addition to having the deposition transcribed, videotape it ... . m The purpose of this bill is to permit an additional method of preserving and presenting evidence taken at depositions.” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 2473 (1979-1980 Reg. Sess.) p. 1.) The Assembly Judiciary Committee described the bill as follows: “This bill is intended to permit an additional method of preserving and presenting evidence taken at depositions.” (Assem. Com. on Judiciary, Digest of Assem. Bill No. 2473 (1979-1980 Reg. Sess.) p. 1.) “The bill’s supporters state that the judicial system should have complete access to technological improvements that would enhance the fact-finding process and they cite video tape systems which permit the recording of both the spoken word and the gestures and demeanor of witnesses as an example of such improvements.” (Id. at p. 2.) The reference to recording the “gestures and demeanor of witnesses” refers to recording the familiar visual clues to credibility that a witness presents while testifying verbally, not to reenactments. (See, e.g., Anderson v. City of Bessemer City (1985) 470 U.S. 564, 575 [105 S.Ct. 1504, 1512, 84 L.Ed.2d 518] [noting “the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding of and belief in what is said”]; Dyer v. MacDougall (2d Cir. 1952) 201 F.2d 265, 268-269 (maj. opn. of L. Hand, J.) [“[T]he carriage, behavior, bearing, manner and appearance of a witness—in short, his ‘demeanor’—is a part of the evidence. The words used are by no means all that we rely on in making up our minds about the truth of a question that arises in our ordinary affairs, and it is abundantly settled that a jury is as little confined to them as we are. They may, and indeed they should, take into consideration the whole nexus of sense impressions which they get from a witness.”].)

Finally, my conclusion that the Legislature has not permitted parties to compel deponents to reenact events at depositions would not lead to unfairness in litigation. Deponents would be free to voluntarily perform such reenactments. In addition, my conclusion does not authorize a party who seeks to present a reenactment to spring it by surprise at trial. As the Court of Appeal noted here, trial courts have ample authority to condition the admission of reenactments, like the admission of other forms of demonstrative evidence, upon adequate pretrial disclosure of the contents of the reenactment, including an opportunity to videotape the reenactment. (See Peat, Marwick, Mitchell & Co. v. Superior Court (1988) 200 Cal.App.3d 272, 287-289 [245 Cal.Rptr. 873] [courts have inherent power to exclude evidence to preserve integrity and fairness of judicial proceedings].)

In sum, the majority fails to show that the Legislature has authorized courts to compel deposition witnesses to perform reenactments. Nor does the *1123majority acknowledge the policy considerations that weigh against its position. The majority’s discussion of the advantages of compelled reenactments discounts too much the potential compelled reenactments have for presenting a witness in a misleading light. In verbal testimony, a witness can make clear what he or she does or does not remember concerning an event. In reenacting an event, there is no easy way to present this, for a witness performing a reenactment impliedly asserts that he or she remembers the continuous sequence of his or her own relative location and movements as well as those of other persons and objects. It seems doubtful that most persons possess the detailed kinesthetic memory of body positions that a reenactment implies, and it is easier than the majority acknowledges to make a witness who has a clear and accurate memory of the series of crucial moments of an event to appear unconvincing because he or she cannot link up the memories of those moments by physically demonstrating what occurred in between those moments. In addition, a reenactment at trial can be closely controlled by the presiding judge to prevent harassment or abuse of the witness; because depositions are conducted outside the presence of a judge (typically in a lawyer’s office), a compelled reenactment at a deposition presents a greater potential for abuse and harassment than one at trial. In any event, however the advantages and disadvantages may be weighed, the important point is that whether to require witnesses to perform reenactments and other demonstrations is the sort of policy judgment that the Legislature has given very detailed consideration to in other aspects of the discovery statutes. It should be free to do so in this case as well.

IV

For the reasons stated above, I dissent, and would reverse the judgment of the Court of Appeal.

“[E]very mode of oral statement, under oath or affirmation, is embraced by the term ‘testify,’ and every written one in the term ‘depose.’ ” (§ 17.) An oral deposition results in a written statement, of course, when the court reporter transcribes the witness’s oral statements into writing.

“A witness is a person whose declaration under oath is received as evidence for any purpose, whether such declaration be made on oral examination, or by deposition or affidavit.” (§ 1878.)

“A deposition is a written declaration, under oath, made upon notice to the adverse party, for the purpose of enabling him to attend and cross-examine.” (§ 2004.)

“The testimony of witnesses is taken in three modes: [*][] 1. By affidavit; [f] 2. By deposition; [<¡0 3. By oral examination.” (§ 2002.)

“[T]he testimony . . . shall be taken stenographically. The party noticing the deposition may also record the testimony by audiotape or videotape . . . .” (§ 2025, subd. (l)(1).)