defending rule 30(b)(6) corporate...

Defending Rule 30(b)(6) Corporate Depositions Responding to a Deposition Notice, Selecting and Preparing Witnesses

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THURSDAY, APRIL 18, 2013

Presenting a live 90-minute webinar with interactive Q&A

Bradley W. Petersen, Partner, Slattery Petersen, Phoenix

Ardith Bronson, Counsel, Weil Gotshal & Manges, Miami

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Brad Petersen, Slattery Petersen PLLC 602.507.6100 [email protected] www.slatterypetersen.com Ardith Bronson, Weil, Gotshal & Manges LLP 305.577.3213 [email protected] www.weil.com/ardithbronson/

Rule 30(b)(6) Corporate Depositions: Effective Defense Strategies

April 18, 2013

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Introduction

Party seeking information from a corporation may serve a notice requiring the corporation to designate a person to testify in a deposition on specified topics

Such notices:

Are referred to as corporate designee or 30(b)(6) notices

Impose various obligations on the corporation

Present numerous issues for the corporation

This seminar will:

Identify those obligations and issues

Discuss practical responses to them

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The Language of Rule 30(b)(6)

“A party may ... name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested.... [T]he organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. The person so designated shall testify as to matters known or reasonably available to the organization....”

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The Rationale For Rule 30(b)(6)

Reduce the difficulty a deposing lawyer encounters in determining whether a particular employee of a corporation is a “managing agent”

Curb the practice of “bandying”

Protect entities from the burden of having an unnecessarily large number of their employees deposed

The comments to FRCP 30(b)(6) indicate 3 reasons for its enactment:

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Common Uses of 30(b)(6) Depositions

Seek factual information to support claims or defenses

Discover the company’s:

Position with respect to disputed matters Subjective beliefs and opinions Interpretation of documents and events

Authenticate documents

Probe e-discovery issues, including compliance

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Use of 30(b)(6) Deposition Testimony

FRCP 32(a)(2) provides:

“The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a public or private corporation, partnership or association or governmental agency which is a party may be used by an adverse party for any purpose.” (emphasis added)

Predominant view:

30(b)(6) testimony is not a judicial admission

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Key 30(b)(6) Issues

Responding to the Deposition Notice

Selecting the 30(b)(6) Witness

Preparation for the Deposition

Problem Areas and What to Do About Them

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Preliminary Issues to Consider

Is the notice procedurally proper?

If the corporation is not a party:

Does a subpoena accompany the notice?

Does the issuing court have jurisdiction?

Does the serving party obtain the proper commissions?

Does the notice satisfy rule requirements?

E.g., does it clearly identify the topics for designation?

Was service proper?

Does the notice provide required time to respond?

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Preliminary Issues Continued

If defective, challenge, ignore or accept the notice?

Ignoring the notice is dangerous

Court may disagree that the notice is defective

This tactic will increase hostility with serving party

May accomplish little; the party can re-serve notice

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Preliminary Issues Continued

Accepting the notice may be best option if:

Defect is debatable or just technical in nature

Little is at stake for the corporation

You want to avoid fees of the challenge

You can get greater cooperation from serving party

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Addressing The Notice

Does the corporation have responsive information? If so, must present a witness to testify If not, may be able to negotiate with serving party

Is the requested information protected? Information may be protected if it is:

Covered by attorney/client privilege, work product

A trade secret If information is protected, you may:

Try to avoid deposition through negotiation; or

Seek protective order from court; or Attend deposition and object to questions

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Is the request vague, ambiguous or overly burdensome?

A notice may be if:

If the deposition topics are very broad

If the number of requested documents is large

If collecting the information would entail great cost

If the notice is overly burdensome, you may:

Call the noticing attorney and negotiate to work out an agreed resolution that is reduced to writing; get an amended notice

Serve objections

Move for protective order or to quash

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Should you serve objections?

Counsel should always review the notice immediately and carefully to identify:

All potential objections

Topics for which the corporation has no information

Any limitations on testimony that will be given

Whether objections are served or filed depends largely on jurisdiction and judge but regardless may be used as a tool for negotiations

Often times, serving objections does nothing unless presented in motion for ruling by the court

Waiting to object to topics at deposition may be too late

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Should you move for a protective order or to quash?

In many jurisdictions, this is the only safe harbor for resolving issues in the notice as to vagueness, ambiguity, and burden that may be foreseen before the deposition

When issues arise during deposition and cannot be resolved by talking to opposing counsel, it may be necessary to suspend the deposition and make a motion

Know how your judge wants to resolve

There could be costs

Try to resolve by negotiating particularly if the issue regards something about which you intend to offer evidence at trial and the corporation has the information

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Should you serve your own 30(b)(6) notice?

This is only applicable to a party in a suit

You may wish to serve such a notice to:

Obtain leverage in negotiating scope of notice

Restrict demands, expectations of other side

Positively influence behavior during the deposition

If you do, avoid the mistakes discussed above.

Remember the number one rule of litigation: what goes around, comes around.

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Whom to consider? Current Employee Former Employee Expert Others Multiple Witnesses

Rule 30(b)(6) provides that the organization:

“… designate[s] one or more officers, directors, or managing agents, or other person who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify.” (emphasis added)


Keep in Mind How 30(b)(6) Testimony Can Be Used:

Testimony is treated as an evidentiary, not judicial, admission

While testimony may be explained or rebutted, consider how effective that will be at trial

Can be explained or rebutted only if the information was not available at time of deposition

Testimony may be used against organization at trial

Organization, however, may not be able to use testimony at trial unless witness has personal knowledge of matters or offers expert testimony

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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, has several duties: be knowledgeable, to prepare, to designate more, and to supplement.

Courts generally view these burdens as the “concomitant obligation from the privilege of being able to use the corporate form in order to conduct business.”

An organization is not required to designate someone with “personal knowledge” to appear on its behalf. This is not a “PMK” deposition.

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Consider the scope of the deposition:

If your jurisdiction is one that allows questions beyond the scope of topics, regardless of your objection, if the witness has personal knowledge of and answers, it may still be an admission

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Selecting the 30(b)(6) Witness Considerations for Selection

Witness Considerations:

Witness’s prior experience testifying

Witness’s personal knowledge

Organization’s interest in having someone with personal knowledge testifying

Time and resources of counsel and witness to become knowledgeable through preparation

Access to company resources, including present and former employees

Witness as “the face of the company”

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©2010 Snell & Wilmer

L.L.P.

Kaufman FU Deposition (YouTube)

Selecting the 30(b)(6) Witness More Considerations for Selection

Witness’s temperament and patience, particularly given the characteristics of the taking attorney

Witness’s knowledge of other facts that could be the subject of the deposition

Witness’s ties to “bad company documents” produced in this or other litigation

Privilege concerns with attorney as witness

Multiple Depositions

More efficient, less risky to depose witness only once

Time limits help reduce deposition risk

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

Lack of personal knowledge is no defense

Keep records and prepare witnesses regarding all steps taken

Avoid the “I don’t know” response

Make sure witness knows the risk of not answering questions

Make sure you know and prepare the witness for the 10 worst questions in your case

Prepare for and plan to do a direct examination

1 witness = 7 hours, 2 witnesses = 14 hours

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Must you educate the witness?

The witness is to provide the company’s knowledge

You must educate witness to key facts the witness does not know

There may be limits to what a witness can learn

There may be limits to questions you can anticipate

However, you must try to educate witness to relevant facts

There are risks to a witness not knowing information

A party may not be able to put on evidence at trial

A party may not be able to assert certain positions

Risks are much smaller if the company is not a party

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What should you do to educate the witness?

Depending on the situation, you may:

Have the witness review key documents

Have the witness speak to knowledgeable employees

Have the witness speak to former employees

You must show that the witness was prepared

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What the witness reviews is discoverable

Do not have witness review privileged material

Be careful in selection of documents

You may not want to highlight certain documents

Be careful in selecting others who witness interviews

You may not want to highlight certain witnesses

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When should you prepare “cheat sheets”?

Sometimes it is helpful to prepare “cheat sheets”

Facts on which the witness can rely in the deposition

Makes sense to do so when:

Important that the witness provide certain testimony

Information too much or complex for witness to remember

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Should you do a direct examination?

No obligation to put on case, but consider how the deposition may be used in this and future litigation

Potentially make a record of preparation

If it is even a possibility, prepare

Make sure the witness knows it is coming

Assure witness that your questions do not mean the witness did something wrong

Problem areas

The most common problem (at least, anecdotally):

The witness was not knowledgeable and/or prepared to testify for the organization!

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Recent Company Dep.

53

8 Q On Exhibit 1 the topics of examination

9 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 tests,

13 were any final or draft protocols prepared?

14 A I believe so.

15 Q Where are those today?

16 A They're probably in our server.

17 Q Have you tried to identify those

18 documents?

19 A No, I have not.

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Recent Company Dep.

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19 Q (BY MR. PETERSEN) What about the

20 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

24 glass described within Exhibit No. 1. Have you

25 been able to identify any testing protocols, test

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1 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 with Steve and find those documents.

5 Q You have not done that prior to today?

6 A No. 35

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?

16 A Saved on the server probably. I would

17 have to get with Linda and Steve. I don't where he

18 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.

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?

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1 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 Steve Batzer.

10 Q Did you ask Dr. Batzer about those

11 questions before today's deposition?

12 A No, I did not. 37

Problem areas

What happens when the deponent is not

knowledgeable:

Like all depositions, if a party fails to appear for a Rule 30(b)(6) deposition, it may be subject to sanctions.

Similarly, if a party proffers a representative who cannot properly answer questions on matters adequately described in the notice for which that representative was designated to give testimony, then the party has failed to comply with its obligations under Rule 30(b)(6) and is also subject to sanctions.

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Problem areas

• Some possible sanctions under Rule 37:

Preclusion of evidence on subject matter;

Produce new designee at deponent’s expense; or

Educate and reproduce designee.

You cannot produce an unknowledgeable 30(b)(6)

deponent and then substitute a knowledgeable witness at

the time of trial.

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How to handle lack of witness knowledge:

Prepare, Prepare, Prepare

Seek sources during the break

Reconvene deposition if necessary

How to handle inaccurate / incomplete testimony:

Be prepared to cross/ rehabilitate your witness

Review/edit the transcript

Problem areas

Other problems:

Too much information!

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Burden is No Excuse

Even if corporate documents are voluminous and the review of those documents would be burdensome, a representative may still be required to review them in order to prepare for the deposition; such preparation is necessary because the individuals so deposed are required to testify to the knowledge of the corporation, not the individual. Calzaturficio S.C.A.R.P.A. s.p.a. v. Fabiano Shoe Co., 201 F.R.D. 33 (D. Mass. 2001).

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

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Problem areas

Other problems:

Not enough information!

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No Duty to Know Answer to Every Question

Plaintiffs in products liability action involving loader manufactured in 1969 were not entitled to a deposition of another corporate designee based on alleged inadequacy of responses; due to age of loader, it could be anticipated that certain information concerning it would be unavailable, and original designee was manager of team that designed equipment, and possibility that his memory may have faded due to mere passage of time did not justify requiring manufacturer to appoint additional designee. Barron v. Caterpillar, Inc., 168 F.R.D. 175 (E.D. Pa. 1996).

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How to handle questions beyond the scope:

Establish the scope ahead of time

Make the objection

If necessary, instruct the witness not to respond (privilege, bad faith, court limits)

Seek protective order if necessary

Final Suggestions for the Defending Attorney

Study the notice carefully and generate important or troublesome questions that will need to be addressed. Object early.

If necessary, seek relief under Rule 26(c) prior to the deposition, especially when work product or privilege may be an issue.

Prepare, prepare, prepare!

Explain to the representative the risks of not answering.

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

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Final Suggestions for the Defending Attorney

Work with the taking attorney to get appropriate agreements, like proffering an initial witness with others to follow, if necessary. Confirm this on the record.

Have additional witnesses ready to address those areas that may not have been contemplated but are within the notice.

Make a record. Clearly set forth all stipulations on the record and indicate which areas of inquiry the representative will be addressing. When taking counsel goes beyond the noticed areas, remind taking counsel that the responses may not be binding and consider seeking Rule 26(c) relief from the court.

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Rule 30(b)(6) Cases

Suss v. MSX Int’l Services, Inc., 212 F.R.D. 156 (S.D.N.Y. 2002)

Calzaturficio S.C.A.R.P.A. v. Fabiano Shoe Co., 201 F.R.D. 33 (D. Mass. 2001)

Reed v. Bennett, 193 F.R.D. 689 (D. Kan. 2000)

Prokosch v. Catalina Lighting, Inc., 193 F.R.D. 633 (D.Minn. 2000)

Reilly v. Natwest Mkts. Group Inc., 181 F.3d 253 (2nd Cir. 1999)

Starlight Int’l Inc. v. Herlihy, 186 F.R.D. 626 (D. Kan. 1999)

Media Services Group, Inc. v. Lesso, Inc., 45 F. Supp. 2d 626 (D. Kan. 1999)

Alexander v. FBI, 186 F.R.D. 148, 151 (D.D.C. 1999)

Rainey v. Amer. Forest and Paper Assoc., 26 F. Supp. 2d 82 (D.D.C. 1998)

Bank of New York v. Meridien BIAO Bank Tanzania, Ltd., 171 F.R.D. 135 (S.D.N.Y. 1997)

Barron v. Caterpillar, Inc., 168 F.R.D. 175 (E.D. Pa. 1996)

U.S. v. Taylor, 166 F.R.D. 356, affirmed, 166 F.R.D. 367 (M.D.N.C. 1996)

In re Indep. Service Orgs. Antitrust Litig., 168 F.R.D. 651, 654 (D. Kan. 1996)

Buycks-Roberson v. Citibank Federal Savings Bank, 162 F.R.D. 338 (N.D. Ill. 1995)

King v. Pratt & Whitney, 161 F.R.D. 475 (S.D. Fla. 1995)

Marker v. Union Fidelity Life Ins. Co., 125 F.R.D. 121 (M.D.N.C. 1989)

FDIC v. Butcher, 116 F.R.D. 196 (E.D. Tenn. 1986)

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Brad Petersen, Slattery Petersen PLLC 602.507.6100 [email protected] www.slatterypetersen.com Ardith Bronson, Weil, Gotshal & Manges LLP 305.577.3213 [email protected] www.weil.com/ardithbronson/

Rule 30(b)(6) Corporate Depositions: Effective Defense Strategies

April 18, 2013

defending rule 30(b)(6) corporate...

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