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Rule 30(b)(6) Corporate Depositions: Rule 30(b)(6) Corporate Depositions: Effective Defense StrategiesBest Practices for Responding to a Deposition Notice, Selecting and Preparing Witnesses

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WEDNESDAY, AUGUST 10, 2011

Today’s faculty features:

James C. Winton, Partner, Baker & Hostetler, Houston

Adam J. Blank, Wofsey, Rosen, Kweskin & Kuriansky, Stamford, Conn.

Bradley W. Petersen, Partner, Snell & Wilmer, Phoenix

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Rule 30(b)(6) Corporate D i i R di hDepositions: Responding to the

Deposition NoticeDeposition Notice J.C. Winton

Baker & Hostetler LLPBaker & Hostetler LLP1000 Louisiana, 20th FloorHouston, Texas 77002-5009

TEL: (713) 646-1304FAX: (713) 751 1717

© 2010 Baker & Hostetler LLP

FAX: (713) 751-1717jwinton@bakerlaw.com

Keys to 30(b)(6) Noticey ( )( )

• Deposition is of the Entity, not of a person;p y, p ;

6

Keys to 30(b)(6) Noticey ( )( )

• Deposition is of the Entity, not of a person;p y, p ;• Deposition is of Facts Reasonably Available to the

Entity, not of Facts Known to someone within the Entity b d P l K l dbased on Personal Knowledge

7

Keys to 30(b)(6) Noticey ( )( )

• Deposition is of the Entity, not of a person;p y, p ;• Deposition is of Facts Reasonably Available to the

Entity, not of Facts Known to someone within the Entity b d P l K l dbased on Personal Knowledge

• Notice should be for deposition of XYZ Corporation, on the subject matters designated in Exhibit Athe subject matters designated in Exhibit A

8

Keys to 30(b)(6) Noticey ( )( )

• Deposition is of the Entity, not of a person;p y, p ;• Deposition is of Facts Reasonably Available to the

Entity, not of Facts Known to someone within the Entity b d P l K l dbased on Personal Knowledge

• Notice should be for deposition of XYZ Corporation, on the subject matters designated in Exhibit Athe subject matters designated in Exhibit A

• Not a Deposition of Person Most Knowledgeable about . . . .

9

Keys to 30(b)(6) Noticey ( )( )

• Deposition is of the Entity, not of a person;p y p• Deposition is of Facts Reasonably Available to the

Entity, not of Facts Known to someone within the Entity based on Personal Knowledgebased on Personal Knowledge

• Notice should be for deposition of XYZ Corporation, on the subject matters designated in Exhibit AN t D iti f P M t K l d bl b t• Not a Deposition of Person Most Knowledgeable about . . . .

• Notice Must Identify the Subject Matters on which the y jWitness is to be deposed to Allow the Presenting Party to Conduct an Adequate Investigation of Facts Reasonably Available to the Entity

10

y y

Keys to 30(b)(6) Noticey ( )( )

• If Notice is Too Vague, You Cannot DoIf Notice is Too Vague, You Cannot Do Your Job of Investigating and Preparing the Witness to Respond to Questions;p

11

Keys to 30(b)(6) Noticey ( )( )

• If Notice is Too Vague, You Cannot DoIf Notice is Too Vague, You Cannot Do Your Job of Investigating and Preparing the Witness to Respond to Questions;p– It is in Your Client’s Best Interest that they be

Properly Prepared to Disclose all Facts that Y W t t P t t T i lYou may Want to Present at Trial;

12

Keys to 30(b)(6) Noticey ( )( )

• If Notice is Too Vague, You Cannot DoIf Notice is Too Vague, You Cannot Do Your Job of Investigating and Preparing the Witness to Respond to Questions;p– It is in Your Client’s Best Interest that they be

Properly Prepared to Disclose all Facts that Y W t t P t t T i lYou may Want to Present at Trial;

– Others will discuss the consequences of a failure properly to investigate;failure properly to investigate;

13

Keys to 30(b)(6) Noticey ( )( )

• If Notice is Too Vague, You Cannot DoIf Notice is Too Vague, You Cannot Do Your Job of Investigating and Preparing the Witness to Respond to Questions;p– It is in Your Client’s Best Interest that they be

Properly Prepared to Disclose all Facts that Y W t t P t t T i lYou may Want to Present at Trial;

– Others will discuss the consequences of a failure properly to investigate;failure properly to investigate;

14

Keys to 30(b)(6) Noticey ( )( )

• “PMK” Notice—what happens when youPMK Notice what happens when you don’t bring that witness to trial?

15

Negotiating With Opposing CounselCounsel

If You Receive a Notice that Violates any of theseIf You Receive a Notice that Violates any of these Principles:

16

Negotiating With Opposing CounselCounsel

If You Receive a Notice that Violates any of theseIf You Receive a Notice that Violates any of these Principles:• Call the Noticing Attorney and Talk to Him/Her;

17

Negotiating With Opposing CounselCounsel

If You Receive a Notice that Violates any of theseIf You Receive a Notice that Violates any of these Principles:• Call the Noticing Attorney and Talk to Him/Her;

– Try to Work Out an Agreed Resolution;

18

Negotiating With Opposing CounselCounsel

If You Receive a Notice that Violates any of theseIf You Receive a Notice that Violates any of these Principles:• Call the Noticing Attorney and Talk to Him/Her;

– Try to Work Out an Agreed Resolution;– These issues are too important to be allowed to drift into trial;

19

Negotiating With Opposing CounselCounsel

If You Receive a Notice that Violates any of theseIf You Receive a Notice that Violates any of these Principles:• Call the Noticing Attorney and Talk to Him/Her;

– Try to Work Out an Agreed Resolution;– These issues are too important to be allowed to drift into trial;– Offer to Identify Knowledgeable Fact Witness as an Alternative;

20

Negotiating With Opposing CounselCounsel

If You Receive a Notice that Violates any of theseIf You Receive a Notice that Violates any of these Principles:• Call the Noticing Attorney and Talk to Him/Her;

– Try to Work Out an Agreed Resolution;– These issues are too important to be allowed to drift into trial;– Offer to Identify Knowledgeable Fact Witness as an Alternative;– Otherwise, Produce a Corporate Representative per the Rules

21

Negotiating With Opposing CounselCounsel

If You Receive a Notice that Violates any of theseIf You Receive a Notice that Violates any of these Principles:• Call the Noticing Attorney and Talk to Him/Her;

– Try to Work Out an Agreed Resolution;– These issues are too important to be allowed to drift into trial;– Offer to Identify Knowledgeable Fact Witness as an Alternative;– Otherwise, Produce a Corporate Representative per the Rules

• Get Noticing Party to Issue a Revised Notice

22

Negotiating With Opposing CounselCounsel

If You Receive a Notice that Violates any of theseIf You Receive a Notice that Violates any of these Principles:• Call the Noticing Attorney and Talk to Him/Her;

– Try to Work Out an Agreed Resolution;– These issues are too important to be allowed to drift into trial;– Offer to Identify Knowledgeable Fact Witness as an Alternative;– Otherwise, Produce a Corporate Representative per the Rules

• Get Noticing Party to Issue a Revised Notice• Reduce your agreement to writingReduce your agreement to writing

23

Negotiating With Opposing CounselCounsel

If You Receive a Notice that Violates any of theseIf You Receive a Notice that Violates any of these Principles:• Call the Noticing Attorney and Talk to Him/Her;

– Try to Work Out an Agreed Resolution;– These issues are too important to be allowed to drift into trial;– Offer to Identify Knowledgeable Fact Witness as an Alternative;– Otherwise, Produce a Corporate Representative per the Rules

• Get Noticing Party to Issue a Revised Notice• Reduce your agreement to writingReduce your agreement to writing• Texas—“Rule 11 Agreement”

24

Negotiating With Opposing CounselCounsel

If You Receive a Notice that Violates any of theseIf You Receive a Notice that Violates any of these Principles:• Call the Noticing Attorney and Talk to Him/Her;

– Try to Work Out an Agreed Resolution;– These issues are too important to be allowed to drift into trial;– Offer to Identify Knowledgeable Fact Witness as an Alternative;– Otherwise, Produce a Corporate Representative per the Rules

• Get Noticing Party to Issue a Revised Notice• Reduce your agreement to writingReduce your agreement to writing• Texas—“Rule 11 Agreement”• Serve Objections

25

Negotiating With Opposing CounselCounsel

If You Receive a Notice that Violates any of theseIf You Receive a Notice that Violates any of these Principles:• Call the Noticing Attorney and Talk to Him/Her;

– Try to Work Out an Agreed Resolution;– These issues are too important to be allowed to drift into trial;– Offer to Identify Knowledgeable Fact Witness as an Alternative;– Otherwise, Produce a Corporate Representative per the Rules

• Get Noticing Party to Issue a Revised Notice• Reduce your agreement to writingReduce your agreement to writing• Texas—“Rule 11 Agreement”• Serve Objections

Move for Protective Order or to Quash

26

• Move for Protective Order or to Quash

Objectionsj

• File Objections With the Court?File Objections With the Court?

27

Objectionsj

• File Objections With the Court?File Objections With the Court?– Of No Value Unless you Get a Ruling

28

Objectionsj

• File Objections With the Court?File Objections With the Court?– Of No Value Unless you Get a Ruling

• Object on the Record j

29

Objectionsj

• File Objections With the Court?File Objections With the Court?– Of No Value Unless you Get a Ruling

• Object on the Record j– Vagueness of Notice

30

Objectionsj

• File Objections With the Court?File Objections With the Court?– Of No Value Unless you Get a Ruling

• Object on the Record j– Vagueness of Notice

• Really Too Late

31

Objectionsj

• File Objections With the Court?File Objections With the Court?– Of No Value Unless you Get a Ruling

• Object on the Record j– Vagueness of Notice

• Really Too Late

Att t t E d S f N ti– Attempts to Exceed Scope of Notice

32

Objectionsj

• File Objections With the Court?File Objections With the Court?– Of No Value Unless you Get a Ruling

• Object on the Record j– Vagueness of Notice

• Really Too Late

Att t t E d S f N ti– Attempts to Exceed Scope of Notice• Cannot Allow Witness to Testify as Corporate Rep About

Matters That Have Not Been Investigated

33

Objectionsj

• As to Personal Knowledge--

34

Objectionsj

• As to Personal Knowledge--– Split: Compare Paparelli with Smith v. Logansport Cmty. Sch.

Corp., 139 F.R.D. 637, 643 (N.D. Ind. 1991)

35

Objectionsj

• As to Personal Knowledge--– Split: Compare Paparelli with Smith v. Logansport Cmty. Sch.

Corp., 139 F.R.D. 637, 643 (N.D. Ind. 1991)– “Objection, exceeds the scope of the notice”

36

Objectionsj

• As to Personal Knowledge--– Split: Compare Paparelli with Smith v. Logansport Cmty. Sch.

Corp., 139 F.R.D. 637, 643 (N.D. Ind. 1991)– “Objection, exceeds the scope of the notice”

Then allow witness to answer on personal knowledge– Then allow witness to answer on personal knowledge

37

Objectionsj

• As to Personal Knowledge--– Split: Compare Paparelli with Smith v. Logansport Cmty. Sch.

Corp., 139 F.R.D. 637, 643 (N.D. Ind. 1991)– “Objection, exceeds the scope of the notice”

Then allow witness to answer on personal knowledge– Then allow witness to answer on personal knowledge– Prevents answer, if incorrect or incomplete, from “binding” the

Entity

38

Objectionsj

• As to Personal Knowledge--– Split: Compare Paparelli with Smith v. Logansport Cmty. Sch.

Corp., 139 F.R.D. 637, 643 (N.D. Ind. 1991)– “Objection, exceeds the scope of the notice”

Then allow witness to answer on personal knowledge– Then allow witness to answer on personal knowledge– Prevents answer, if incorrect or incomplete, from “binding” the

Entity

– Make Certain Witness is Prepared on How to– Make Certain Witness is Prepared on How to Handle Questions Outside of Notice

39

Objectionsj

• As to Personal Knowledge--– Split: Compare Paparelli with Smith v. Logansport Cmty. Sch.

Corp., 139 F.R.D. 637, 643 (N.D. Ind. 1991)– “Objection, exceeds the scope of the notice”

Then allow witness to answer on personal knowledge– Then allow witness to answer on personal knowledge– Prevents answer, if incorrect or incomplete, from “binding” the

Entity

– Make Certain Witness is Prepared on How to– Make Certain Witness is Prepared on How to Handle Questions Outside of Notice

• “I did not realize the notice covered that area and have not investigated it. However, I have some knowledge about it and can respond on my own behalf.”

40

Or Seek a Protective Order

• In Advance of Deposition as to Vagueness of Subject p g jMatters

41

Or Seek a Protective Order

• In Advance of Deposition as to Vagueness of Subject p g jMatters

• Suspend Deposition as to Ambiguity—Is Witness di C t R I di id lresponding as Corporate Rep or as Individual

42

Or Seek a Protective Order

• In Advance of Deposition as to Vagueness of Subject p g jMatters

• Suspend Deposition as to Ambiguity—Is Witness di C t R I di id lresponding as Corporate Rep or as Individual

• Corporation Lacks Knowledge or Information

43

Or Seek a Protective Order

• In Advance of Deposition as to Vagueness of Subject p g jMatters

• Suspend Deposition as to Ambiguity—Is Witness di C t R I di id lresponding as Corporate Rep or as Individual

• Corporation Lacks Knowledge or Information– If you intend to offer evidence at trial then you have– If you intend to offer evidence at trial, then you have

access to the information

44

Or Seek a Protective Order

• In Advance of Deposition as to Vagueness of Subject p g jMatters

• Suspend Deposition as to Ambiguity—Is Witness di C t R I di id lresponding as Corporate Rep or as Individual

• Corporation Lacks Knowledge or Information– If you intend to offer evidence at trial then you have– If you intend to offer evidence at trial, then you have

access to the information– Rainey v. American Forest and Paper Ass’n,

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Or Seek a Protective Order

– PrivilegePrivilege

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Or Seek a Protective Order

– PrivilegePrivilege– Demand for the “person with the most

knowledge” g

47

Or Seek a Protective Order

– PrivilegePrivilege– Demand for the “person with the most

knowledge” g– Duplicative Questioning or Deposition

48

Serving Reciprocal 30(b)(6) NoticeNotice

• When Justified by the Discovery Needs ofWhen Justified by the Discovery Needs of Your Case

49

Serving Reciprocal 30(b)(6) NoticeNotice

• When Justified by the Discovery Needs ofWhen Justified by the Discovery Needs of Your Case

• Avoid Mistakes Discussed Above• Avoid Mistakes Discussed Above

50

Serving Reciprocal 30(b)(6) NoticeNotice

• When Justified by the Discovery Needs ofWhen Justified by the Discovery Needs of Your Case

• Avoid Mistakes Discussed Above• Avoid Mistakes Discussed Above• Remember the Number One Rule of

Liti tiLitigation

51

Serving Reciprocal 30(b)(6) NoticeNotice

• When Justified by the Discovery Needs ofWhen Justified by the Discovery Needs of Your Case

• Avoid Mistakes Discussed Above• Avoid Mistakes Discussed Above• Remember the Number One Rule of

Liti tiLitigation– What Goes Around, Comes Around

52

More Information

James C. Winton, Corporate Representative Depositions in , p p pTexas--Often Used but Rarely Appreciated, 55 Baylor L. Rev. 651 (2003).

53

Chicago • Cincinnati • Cleveland • Columbus • Costa Mesa • DenverHouston • Los Angeles • New York • Orlando • Washington DCHouston Los Angeles New York Orlando Washington, DC

www.bakerlaw.com

© 2010 Baker & Hostetler LLP

Selecting Rule 30(b)(6) Witnesses

Bradley W. Petersen602.382.6202

bpetersen@swlaw.comwww.swlaw.com/attorneys/brad petersenwww.swlaw.com/attorneys/brad_petersen

August 10, 2011

TopicsTopics

• Who gets to pick?• Who to consider for selection?• What to consider when selecting?• Final thoughts when selecting

56

Selecting the 30(b)(6) Witness:Selecting the 30(b)(6) Witness:Who gets to pick?Who gets to pick?

Generally, Rule 30(b)(6) provides that the i ti i korganization may pick:“… designate one or more officers,directors or managing agents or otherdirectors, or managing agents, or otherperson who consent to testify on itsbehalf, and may set forth, for each persondesignated, the matters on which theperson will testify.” (emphasis added)

57

Selecting the 30(b)(6) Witness:Selecting the 30(b)(6) Witness:Who to consider for selection?Who to consider for selection?

Who to Consider?

Current Employee Former Employee Former Employee Expert Others Multiple Witnesses Multiple Witnesses

58

Selecting the 30(b)(6) Witness:Selecting the 30(b)(6) Witness:What to consider when selecting?What to consider when selecting?gg

Consider the treatment of 30(b)(6) testimony:• The testimony given by a Rule 30(b)(6) representative

is treated as an evidentiary, not a judicial, admission;consequently, it may by explained or rebutted by theconsequently, it may by explained or rebutted by theparty. Media Services Group, Inc. v. Lesso, Inc., 45 F.Supp. 2d 626, 638-39 (D. Kan. 1999).H th i ti b hibit d f• However, the organization may be prohibited fromusing information not disclosed during the Rule30(b)(6) deposition if it was available at that time.( )( ) pRainey v. Amer. Forest and Paper Assoc., 26 F. Supp. 2d82, 94 (D.D.C. 1998).

59

Selecting the 30(b)(6) Witness:Selecting the 30(b)(6) Witness:What to consider when selecting?What to consider when selecting?gg

Consider the duties under 30(b)(6):• An organization from which a Rule 30(b)(6) has been

requested, whether that be by notice or subpoena, hasseveral duties: be knowledgeable to prepare toseveral duties: be knowledgeable, to prepare, todesignate more, and to supplement.

• Courts generally view these burdens as the“concomitant obligation from the privilege of beingable to use the corporate form in order to conductbusiness.” United States v. Taylor, 166 F.R.D. 356, 362,business. United States v. Taylor, 166 F.R.D. 356, 362,affirmed, 166 F.R.D. 367 (M.D.N.C. 1996).

60

Selecting the 30(b)(6) Witness:Selecting the 30(b)(6) Witness:What to consider when selecting?What to consider when selecting?gg

Consider the duties under 30(b)(6):• The representative(s) has (have) a duty to be

knowledgeable regarding the subject matter identifiedas the area of inquiry. Alexander v. FBI, 186 F.R.D. 148,151 (D.D.C. 1999).

• An organization is not required to designate someonewith “personal knowledge” to appear on its behalf;p g pp ;rather, Rule 30(b)(6) requires only that designatedpersons testify as to matters “known or reasonablyavailable to the organization.” Reed v. Bennett, 193a a ab e to t e o ga at o eed e ett, 93F.R.D. 689 (D. Kan. 2000).

• That makes a Rule 30(b)(6) deposition much differentthan a “PMK” deposition

61

than a PMK deposition.

Selecting the 30(b)(6) Witness:Selecting the 30(b)(6) Witness:What to consider when selecting?What to consider when selecting?gg

Consider the use of testimony at trial:• While the testimony may be used against the

organization at trial, Fed. R. Evid. 801(d)(2); theconverse is not true: an organization may notconverse is not true: an organization may notnecessarily be able to use the testimony of the Rule30(b)(6) representative at trial unless the witness has

l k l d f th tt ff tpersonal knowledge of the matter or offers experttestimony. Fed. R. Civ. P. 32; Fed. Rs. Evid. 602, 702.

62

Selecting the 30(b)(6) Witness:Selecting the 30(b)(6) Witness:What to consider when selecting?What to consider when selecting?gg

Consider the scope of the deposition:• The party taking the deposition may ask questions

beyond the list of topics; however, the testimony maynot have a binding effect and it is the examiningnot have a binding effect and it is the examiningparty’s problem if a deponent does not know theanswer to a question. King v. Pratt & Whitney, 161F R D 475 476 (S D Fl 1995)F.R.D. 475, 476 (S.D. Fla. 1995).

63

Selecting the 30(b)(6) Witness:Selecting the 30(b)(6) Witness:What to consider when selecting?What to consider when selecting?gg

Practical and Strategic Considerations:• Does the witness have prior experience testifying, at

all and as a company representative?• Does the witness have personal knowledge?p g• While Rule 30(b)(6) does not require a witness with

personal knowledge, will the organization be bestserved by someone who does not?served by someone who does not?

• How much time and resources does counsel and thewitness have to become knowledgeable throughpreparation?preparation?

• Does the witness have access to company resourcesincluding present and former employees who may

64

have unique knowledge?

Selecting the 30(b)(6) Witness:Selecting the 30(b)(6) Witness:What to consider when selecting?What to consider when selecting?gg

Practical and Strategic Considerations:• Is this witness who the organization wants as “the

face of the company”?Does the witness have the temperament and patience• Does the witness have the temperament and patiencefor a rule 30(b)(6) deposition, particularly given thecharacteristics of the taking attorney?

65

Kaufman FU Deposition (YouTube)Kaufman FU Deposition (YouTube)

66

Selecting the 30(b)(6) Witness:Selecting the 30(b)(6) Witness:What to consider when selecting?What to consider when selecting?gg

Practical and Strategic Considerations:• What else does the witness know that could be the

subject of the deposition?Is the witness tied to any “bad company documents”• Is the witness tied to any “bad company documents”that may have been produced in this or other litigationthat the opposing parties may have access to?

• Is there a reason that the witness may be deposedlater anyway?

More efficient and less risk to ha e itness◦ More efficient and less risk to have witnessdeposed only once.

◦ Time limits may help to reduce deposition risk.

67

y p p

Selecting the 30(b)(6) Witness:Selecting the 30(b)(6) Witness:What to consider when selecting?What to consider when selecting?gg

Practical and Strategic Considerations:• Are there any privilege concerns?

◦ Attorney as witness

68

Selecting the 30(b)(6) Witness:Selecting the 30(b)(6) Witness:Final ThoughtsFinal Thoughts

Less Knowledge = More Time, More Work, More Expense More RiskExpense, More Risk

Keep records and prepare witnesses regarding all steps takenM k th it k th i k f t Make sure the witness knows the risk of not answering questions

Make sure you know and prepare the witness to answer the 10 worst questions in your case; if youanswer the 10 worst questions in your case; if you don’t know them, you’re not prepared

Lack of personal knowledge is no defenseA id th “I d ’t k ” t ti ithi Avoid the “I don’t know” response to questions within scope of notice as the company could be prohibited from offering contrary evidence at trialPrepare for and plan to do a direct e amination

69

Prepare for and plan to do a direct examination

Bradley W. Petersen602.382.6202

bpetersen@swlaw.comwww.swlaw.com/attorneys/brad_petersen

August 10, 2011

Rule 30(b)(6) Corporate Depositions: Effective Defense Strategies Best Practices for Responding to a DepositionStrategies – Best Practices for Responding to a Deposition Notice, Selecting and Preparing Witnesses

Wednesday, August 10, 2011

Adam J. Blank, Esq.Wofsey, Rosen, Kweskin and Kuriansky, LLP600 Summer Street600 Summer StreetStamford, CT 06901Tel. (203) 327-2300Email: ablank@wrkk comEmail: ablank@wrkk.comwww.wrkk.com

Preparing the Deponent

You must educate the deponent

• The deponent is to provide the company’s knowledgeThe deponent is to provide the company s knowledge.

• The deponent must be prepared to “give complete, knowledgeable and binding answers on behalf of the corporation ” Marker v Union Fidelitybinding answers on behalf of the corporation. Marker v. Union Fidelity Life Ins. Co., 125 F.R.D. 121, 126 (M.D.N.C. 1989.)

72

Preparing the Deponent

You must educate the deponent well

• The Deponent must testify on matters “known or reasonably available to the organization.” F.R.C.P. 30(b)(6).

• Courts are inclined to find almost any matter “known or reasonably available to the organization ”the organization.

• Must prepare deponents to the extent matters are reasonably available, whether from documents, current and former employees, prior fact witness deposition

i d i i hibi h P k h C t li Li htitestimony, deposition exhibits or other sources. Prokosch v. Catalina Lighting, Inc., 193 F.R.D. 633, 639 (D.Minn., 2000); Bank of New York v. Meridien BIAO Bank Tanzania, Ltd., 171 F.R.D. 135, 151 (S.D.N.Y., 1997.)

73

Preparing the Deponent

You must educate the deponent with documents

• Deponent has a duty to review all documents “reasonably available toDeponent has a duty to review all documents reasonably available to the organization.”

• It includes all documents that the party has the right authority or• It includes all documents that the party has the right, authority, or practical ability to obtain. Calzaturficio S.C.A.R.P.A. v. Fabiano Shoe Company, 201 F.R.D. 33, 38-39 (D. Mass. 2001.)

74

Preparing the Deponent

Chose wisely how you educate the deponent

• You may not want to highlight certain documentsYou may not want to highlight certain documents.

• You may not want to highlight certain potential witnesses.

75

Preparing the Deponent

Prepare the deponent knowing she will be asked about her preparation

• Assume that the deponent will be asked: ― Whether she is the corporate designee on each of the designated topics;― Whether she is knowledgeable on each of the designated topics;― What preparation she undertook, including who she spoke with and what

documents were reviewed; ― Whether she is the most knowledgeable person in the company on the

topics, and if not, who is the most knowledgeable; F ti th t th d t “I d ’t k ” “I ’t― For every question that the deponent answers “I don’t know” or “I can’t recall”, a follow-up question of “who would know.”

76

Preparing the Deponent

You may need to educate the deponent about related entities

• Some courts have interpreted the Rule’s reference to the knowledge ofSome courts have interpreted the Rule s reference to the knowledge of the “organization” to include entities beyond the corporate deponent (such as subsidiaries and affiliates), if they are within that corporation’s control. Twentieth Century Fox Film Corp. v. Marvel Enterprises, Inc., y p p , ,2002 WL 1835439, (S.D.N.Y. Aug. 8, 2002).

77

Preparing the Deponent

You can relax a little if you are preparing a non-party deponent

• If the corporation being deposed is a non-party courts are less likely toIf the corporation being deposed is a non party, courts are less likely to sanction a moderately prepared non-party deponent and more likely to quash broad and burdensome subpoenas. See, e.g. General Foods Corp. v. Computer Election Sys., Inc., 1980 U.S. Dist. LEXIS 10479 p p y , ,(S.D.N.Y. 1980)

78

Preparing the Deponent

Check your jurisdiction’s case law and prepare some more

• There is a split of authority as to whether a deposition may exceed theThere is a split of authority as to whether a deposition may exceed the scope of the notice, find out where your jurisdiction falls.

• If the deposition is permitted to exceed the scope of the notice and• If the deposition is permitted to exceed the scope of the notice, and your deponent has personal knowledge on subject matters relevant to the litigation which are NOT topics listed in the deposition notice, make sure that the deponent is also prepared on those non-designated topicssure that the deponent is also prepared on those non designated topics within his personal knowledge.

79

Preparing the Deponent

What the deponent reviews may be discoverable

• Avoid review of privileged material with deponentAvoid review of privileged material with deponent. • “In preparing the witness, you must take care that privileged documents

and other privileged information are not used by the witness to obtain knowledge about the subject ” U S Magistrate Judge Sidney Iknowledge about the subject. U.S. Magistrate Judge Sidney I. Schenkier, Deposing Corporations and Other Fictive Persons: Some Thoughts on Rule 30(b)(6), Litigation, Winter 2003, at 20, 24.

• Privilege is waived if deponent reviews privileged material inPrivilege is waived if deponent reviews privileged material in preparation for deposition and relies on that material. Suss v. MSX International Services, Inc., 212 F.R.D. 156, 165 (S.D.N.Y. 2002.)

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Preparing the Deponent

Should you prepare a “cheat sheet”?Should you prepare a cheat sheet ?

• Sometimes necessary if facts are important and complicated.

• Assume that it is discoverable.

• Draft it with citations to authority for each fact (such as transcripts, bates stamped numbers of documents produced, etc.)

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Rule 30(b)(6) Corporate Depositions: Effective Defense Strategies Best Practices for Responding to a DepositionStrategies – Best Practices for Responding to a Deposition Notice, Selecting and Preparing Witnesses

Wednesday, August 10, 2011

Adam J. Blank, Esq.Wofsey, Rosen, Kweskin and Kuriansky, LLP600 Summer Street600 Summer StreetStamford, CT 06901Tel. (203) 327-2300Email: ablank@wrkk comEmail: ablank@wrkk.comwww.wrkk.com

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Problem Areas

James C. Winton Bradley W. PetersenAdam J. BlankPartnerBaker & Hostetlerjwinton@bakerlaw.com713 646 1304

PartnerSnell & Wilmerbpetersen@swlaw.com602 382 6202

Associate Wofsey, Rosen, Kweskin & Kurianskyablank@wrkk com713.646.1304 602.382.6202ablank@wrkk.com 203.327.2300

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P blProblem areas

Th t bl• The most common problem • (at least, anecdotally): ( , y)

•

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P blProblem areas

Th t bl• The most common problem • (at least, anecdotally): ( , y)

Th it t• The witness was not knowledgeable and/or prepared to testify for the organization!

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Recent Company Dep.538 Q On Exhibit 1 the topics of examination 9 start "All final or draft protocols prepared or9 start, All final or draft protocols prepared or 10 used for the XC90 dolly rollover tests run at 11 Karco." When The Engineering Institute was working 12 with Karco to run the XC90 dolly rollover tests12 with Karco to run the XC90 dolly rollover tests, 13 were any final or draft protocols prepared?14 A I believe so.15 Q Wh th t d ?15 Q Where are those today?16 A They're probably in our server.17 Q Have you tried to identify those 18 d t ?18 documents?19 A No, I have not.

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Recent Company Dep.3919 Q (BY MR. PETERSEN) What about the 20 protocols used for the other testing of this glass20 protocols used for the other testing of this glass 21 that's described in Exhibit No. 1?22 A What test are we talking about?23 Q I'm talking about any test run with the g y24 glass described within Exhibit No. 1. Have you 25 been able to identify any testing protocols, test

401 plans, test budgets, related to testing, any 2 testing, of the glass described within Exhibit 1?3 A I would have to look into that and get 4 ith St d fi d th d t4 with Steve and find those documents.5 Q You have not done that prior to today?6 A No.

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Recent Company Dep.

12 Q (BY MR. PETERSEN) You said you have an 13 idea where these documents might be located in 14 response to Mr. Hall's question. What's your idea 15 of where they're located?15 of where they re located?16 A Saved on the server probably. I would17 have to get with Linda and Steve. I don't where he 18 stores his stuff18 stores his stuff.19 Q Is there any reason why y'all couldn't 20 have done that, gotten together with Linda and 21 Steve and looked at the server in the months 22 between November of 2010 and July of 2011?23 MR. HALL: Objection, form.23 MR. HALL: Objection, form.24 A I don't know.

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Recent Company Dep.23 Q Who paid for the HYGE sled testing?24 A I believe that was internal testing.25 Q That wasn't charged out to any clients?25 Q That wasn t charged out to any clients?

201 A I don't know.2 Q Who would know?3 A Steve Batzer.4 Q In the production of that testing in cases 5 has the Engineering Institute billed for the 6 production of that testing, the HYGE sled testing?7 A I don't know.8 Q Who wound know?9 A St B t9 A Steve Batzer.10 Q Did you ask Dr. Batzer about those 11 questions before today's deposition?12 A No I did not12 A No, I did not.

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Problem areasProblem areas

• What happens when the deponent is not pp pknowledgeable

• Do not anticipate that you will be able to produce an unknowledgeable F.R.C.P. 30(b)(6) deponent and then substitute a knowledgeable witness at the timethen substitute a knowledgeable witness at the time of trial.

• Sanctions under Rule 37 are possible.

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Sanctions• Like all depositions if a party fails to appear for a• Like all depositions, if a party fails to appear for a

Rule 30(b)(6) deposition, it may be subject tosanctions. Fed. R. Civ. P. 37(a)(2).

• Similarly, if a party proffers a representative whocannot properly answer questions on mattersadequately described in the notice for which thatadequately described in the notice for which thatrepresentative was designated to give testimony,then the party has failed to comply with its obligations

d R l 30(b)(6) d i l bj t t tiunder Rule 30(b)(6) and is also subject to sanctions.Reilly v. NatWest Markets Group, Inc., 181 F.3d 253(2nd Cir. 1999).( )

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P blProblem areas• What happens when the deponent is not• What happens when the deponent is not

knowledgeable

• Some possible sanctions under Rule 37:– Preclusion of evidence on subject matter;

Produce new designee at deponent’s expense; or– Produce new designee at deponent s expense; or– Educate and reproduce designee.

• Also …

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Problem areasProblem areas• Be prepared for requests for admission

S f C ( )( )• Split of authority as to whether F.R.C.P. 30(b)(6) deposition testimony is simply a party admission or a judicial admission. Compare Reilly v. Natwest Mkts. Group Inc., 181 F.3d 253 (2d Cir. 1999) with A.I. Credit Corp. v. Legion Ins. Co., 265 F.3d 630 (7th Cir. 2001)

• In jurisdictions where this testimony is considered aIn jurisdictions where this testimony is considered a party admission, expect follow-up requests for admissions. This can be used to lock in favorable testimony as• This can be used to lock in favorable testimony as well as to place corporation in position of admitting that it has no knowledge on various subject matters

th t it d d i l d it for that it produced improperly prepared witness for F.R.C.P. 30(b)(6) examination.

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P blProblem areas

Oth bl• Other problems:

• Too much information!

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Burden is No ExcuseBurden is No Excuse• Even if corporate documents are voluminous and the

review of those documents would be burdensome areview of those documents would be burdensome, arepresentative may still be required to review them inorder to prepare for the deposition; such preparationis necessary because the individuals so deposed arey prequired to testify to the knowledge of thecorporation, not the individual. CalzaturficioS.C.A.R.P.A. s.p.a. v. Fabiano Shoe Co., 201 F.R.D.33 (D Mass 2001)33 (D. Mass. 2001).

• In one case, an organization spent more than 1650hours preparing representatives only to have thosewitnesses offer inadequate testimony thatwitnesses offer inadequate testimony thatnecessitated further depositions. Federal DepositInsur. Corp. v. Butcher, 116 F.R.D. 196, 201 (E.D.Tenn. 1986). Note that the FDIC was suing for $40Tenn. 1986). Note that the FDIC was suing for $40Million.

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P blProblem areas

Oth bl• Other problems:

• Not enough information!

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No Duty to Know Answer to EveryNo Duty to Know Answer to Every Question

• Plaintiffs in products liability action involving loadermanufactured in 1969 were not entitled to adeposition of another corporate designee based ondeposition of another corporate designee based onalleged inadequacy of responses; due to age ofloader, it could be anticipated that certain informationconcerning it would be unavailable, and originalconcerning it would be unavailable, and originaldesignee was manager of team that designedequipment, and possibility that his memory may havefaded due to mere passage of time did not justifyfaded due to mere passage of time did not justifyrequiring manufacturer to appoint additionaldesignee. Barron v. Caterpillar, Inc., 168 F.R.D. 175(E D Pa 1996)(E.D. Pa. 1996).

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P blProblem areas

Oth bl• Other problems:

• How do you reconcile knowledge, preparation, too much information and p pnot enough information?

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Suggestions for the DefendingSuggestions for the Defending Attorney

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Suggestions for the Defending AttAttorney

• Study the notice carefully and generate important ort bl ti th t ill d t b dd dtroublesome questions that will need to be addressed.

• If necessary, seek relief under Rule 26(c) prior to thedeposition, especially when work product or privilege

b imay be an issue.• Prepare, prepare, prepare!• Explain to the representative the risks of not

“ ’ ”answering. Further explain that “I don’t know” is aperfect answer to a question beyond the scope of thenotice, for which the representative does not havepersonal knowledgepersonal knowledge.

• If the representative provides an “I don’t know”answer to a question that should be covered, offeradditional witnesses or take a break and educateadditional witnesses or take a break and educate.You do not want to risk getting locked out of a claim ordefense at trial.

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Suggestions for the Defending Attorney

• Work with the taking attorney to get appropriateg y g pp pagreements, like proffering an initial witness withothers to follow, if necessary. Confirm this on therecord.

• Have additional witnesses ready to address thoseareas that may not have been contemplated but arewithin the noticewithin the notice.

• Make a record. Clearly set forth all stipulations onthe record and indicate which areas of inquiry therepresentative will be addressing When takingrepresentative will be addressing. When takingcounsel goes beyond the noticed areas, remindtaking counsel that the responses may not be bindingand consider seeking Rule 26(c) relief from the courtand consider seeking Rule 26(c) relief from the court.

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