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Deposing the Corporate/Municipal Record Keeper in a

Personal Injury CaseBy David A. Roth, Esq.

There is nothing exciting or the slightest bit interest-ing about preparing for or deposing a record keeper; it is a numbing task that most of us come to dread. For that reason, there are not many resources or guides for these types of depositions. As a result, they often become routinely boring and needlessly fruitless.

Typically, institutional defendants in New York City – such as Consolidated Edison, NYCTA, or the City of New York – will produce witnesses who are only knowledgeable about a small piece of the puzzle which faces any plaintiff who is trying to establish a claim. Counsel will be examining an employee who either: knows nothing about the happening of the occurrence or condition of the location; claims to know nothing about the occurrence but knows some-thing about the location/instrumentality involved generally; or is primarily being produced as a record keeper/searcher even though they may not be cog-nizant of the creation, management, form, content, storage or location of the very records that they have searched. In this world of bureaucratic recordkeeping, the one who generates records or inspection reports usually has no idea what happens to them after they are created. Though a witness may claim to have only peripheral knowledge of the procedures and records regarding the cause of a client’s accident, in fact that very witness can be a goldmine of information.

The witnesses that are produced often have worked for the defendant for years, yet they claim to have no knowledge of the issue on which they are being questioned and will testify that they have no idea about certain things that they simply should know. They testify as if they get to their post by walking with blinders on, only being able to actually see again once they get to the location where they are stationed. When faced with these witnesses with “limited” knowledge, it is important to have the right mindset to get the most out of the deposition. There is always something to be learned from these witnesses, but by easing up on probing questioning you will learn only what the defendant wants you to.

In preparation for any deposition, first you need to recognize and prepare for the traps set by the defen-dants. Once you recognize them, you must be careful not to fall into a pattern of questioning that can lead to a very limited amount of information being uncov-ered. Asking tight and narrow questions is helpful when the witness claims to have knowledge, but when the witness is either being obviously evasive or is claiming to know almost nothing, you will fail to explore pertinent overlapping trails of important information unless you open up the scope of your questioning.

COmmON TRAPS

1. As you walk into the deposition defense counsel says, “This guy does not know much. This will prob-ably be quick.”; “How long do you think this will be? The guy only knows about the records but knows nothing about this particular area.”; “I don’t know why they produced this guy because he knows noth-ing.” Of course none of this is on the record.

2. You start doing the deposition and realize that the witness you are deposing is the wrong witness. You look at defense counsel, who looks shocked and says off the record, “Not my fault - I had no idea that this person really wasn’t the right guy until I spoke with him a few minutes ago. Sorry.” Defense counsel indicates you might as well move on and they will produce a witness with knowledge and information at a later date.

3. Records get served upon you as soon as you walk in and the defendant expects you to proceed with the deposition right then and there. [A side note which is near and dear to my heart: defendants – primarily the municipal defendants like the City, TA, etc. – will attempt to get you to do the depositions and then provide you with the records. The Preliminary Conference Order, as well as Compliance Conference Orders, all call for discov-ery to be exchanged prior to depositions. If you are owed discovery, you must move for it before doing the depositions so that you can question the wit-nesses about the records.]

HANDLINg THESE TRAPS

Whenever defense counsel says, “This should be a quick one,” or you figure out that this witness is the wrong witness (traps 1 and 2), there is a part of all of us that would love to just get out of there and is relieved that a likely monotonous morning will be

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over quickly. Instead the intrepid plaintiff’s lawyer must take this trap on as a challenge. The immediate reply should always be, “This will take as long as it takes!” Early in my career I used to ask an abbrevi-ated set of questions to confirm my suspicion that the witness knew little or nothing. I would simply reserve my right to take a deposition of a proper witness with knowledge, and quit to fight again another day. I came to realize that by doing so I would walk out of there with a loss, in three ways. If the defense won the battle that day, then delay, confusion and disorder in the prosecution of the plaintiff’s case follows – even to a small degree. No amount of motion practice can make up for that lost battle and the frustration that it can cause. Also, often the second deposition would never take place for a variety of reasons. And lastly, unwittingly I had given up the opportunity to find out all that the witness does know by focusing on what s/he doesn’t. In this way, avenues to helpful information can be foreclosed without you realizing it. The solution is to get all of the information that the witness knows that could have any bearing on: your claim, your quest for internal records or reports, stan-dard procedures, organizational structure, and even personnel (present or past). Before long you may find that it is the Defense Counsel that is anxious to get out of there, while the witness is rambling on about things the significance of which is known only to you!

When records get dumped on you at the deposition (trap 3) and you don’t have time to go through them all, you MUST either “bust” the deposition or sit there and read the records while the defendants wait. It’s their fault and you should take all the time you need, whether it be 15 minutes or even hours. If you cannot read them in time, make a detailed record includ-ing setting forth the dates of your Demands and/or Discovery Orders, as well as the length and volume of the records produced at the last moment, and do the deposition another day. Unless the records involved are ones that are very familiar to you such that you know exactly what to look for, I do not recommend going through with the deposition without taking whatever time is necessary to peruse them in detail. Too many things can happen and most are bad for the examiner. Furthermore, a “continuing deposition” may or may not take place for a host of reasons.

First recognize the traps, and then fight through them. The goal of a deposition is not necessarily gathering any specific information, but rather to drain the wit-ness dry of whatever information s/he knows that could be evidence or lead to evidence to aid your claim. That includes anything about the company or municipality, the department that is responsible

for the defect or condition, inspection procedures, inspectors, repairers, records, record storage, rou-tine maintenance, as well as anything else specific to the defect, condition or competent producing cause of the injury to your client. Fighting off the traps takes mental toughness.

PITFALLS TO AVOID

When questioning a witness, commonly the attorney has little trouble getting to the department, agency, division, or particular group within the corporation or municipality that primarily handles the location or defect that was involved with the client’s accident. Once that is done, the tendency is to limit the ques-tions to just that department, agency, division, or particular. This often misses important information that the witness has about other subdivisions which have some responsibility as well, even if only for record-keeping. That information can be important in helping to establish your case. Often records are created by one person and then transferred or stored by someone else, and then archived in yet another location. Laying out a clear trail to the records in deposition makes the non-production of them with-out a legally sufficient excuse far more difficult.

Also, when a witness identifies the department, agency, division, or particular group within the corporation or municipality that has responsibility for a particular condition, practice or activity, the attorney should not fall into the pitfall of framing all the questions relating only to that department, agency, group etc. This pitfall is particularly danger-ous because it is only after a long line of questioning that the attorney realizes the needless limitation placed upon all questions to that person. Counsel ends up completely missing out on discovering any overlapping responsibility, records, personnel, etc, that also deal with the matter in question. To avoid this pitfall, one should always make sure to ask the witness to identify each person, department, group, division or agency that the witness is aware of with-in the company or municipality that may be even peripherally involved with the subject matter – or indeed any identifiable issue in the case. One should also elicit testimony regarding anything to do with financial transactions related to the maintenance, inspection, repair, and/or outside contracting. Once established, make a list of all of the internal depart-ments or agencies that the witness testified to, and then focus first on those that specifically handle the issue in question. Then come back to the list that you made and ask about all of the other people or departments and agencies which are more peripher-

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ally involved. Often you learn the most from the more tangentially involved departments or agencies than from the ones directly implicated, especially when it comes to following the money trail and the approvals needed to spend money to replace or repair certain types of defects (which are usually contingent upon an inspection).

One of the strategies we have used in these circum-stances is to follow the money. When a subway grat-ing is installed and the sidewalk needs to be replaced, the grating has to be ordered, materials taken out of inventory, and paid for. Those questions and that line of questioning is something that the defendants cannot get away from. Missing repair, maintenance and contractor records may avoid liability, but they must maintain their financial records for many rea-sons other than lawsuits and can’t easily claim they were “mislaid.” Through this method of forcing the corporation or municipal defendant to produce these financial records we have often discovered that con-tractors have performed work where there were no permits on file and their identities were otherwise not disclosed. This also helps where there is a claim that there are no records of who worked at a particular job – the payroll records will frequently lead to valuable information. Demand them.

Often witnesses testify that they take no notice of anything surrounding them (specifically in premises cases). Plaintiffs’ counsel let that issue go by way too often. The witnesses must get to the areas where they work: they do not fall directly out of the sky to their post, even if it is not their job to take notice of certain things. This is an opportunity to attack the defendant’s credibility as well as to demonstrate the lengths defendants will go to avoid admitting they know anything about the cause of the injury. [Often when deposing witnesses produced by the NYCTA, they will state matter-of-factly that they are only supposed to do a certain job and therefore they take no notice of any area within the Transit System even though they have traveled the same route for 15 straight years. Whether these witnesses are coached in this manner or are afraid for their jobs that they might say something wrong, the testimony is so similar from one witness to the next that it is hard not to be skeptical at the coincidence.] These witnesses must be examined thoroughly – although they claim they do not notice anything, they may very well be your best notice witnesses.

An example of such witness who is present but sees nothing is the NYCTA Station Agent (previ-ously known as the token clerk, stationed in the token

booth). The Station Agent signs the NYCTA’s appli-cable Incident Reports, but does not leave the booth. They characteristically claim that they see nothing until they get to their booth. [There are other wit-nesses who also fall into that category but a Station Agent represents the clearest example of a witness that clearly has to walk to his post yet testifies to knowing nothing more than what defendant wants him to testify about.]

In one of our cases1, a station agent was deposed. The plaintiff had slipped and fallen in a subway sta-tion stairwell on a landing between a set of stairs. The Station Agent testified about her report and its contents as follows:

Q: Now, when you would show up for work at that station, tell me from the moment you would get to work to the end of your shift, what were your general duties? What did you do?A.: I just manned the booth -- -- the token booth for the -- I believe the 6:00 to 2:00 shift

Q.: Did you have to walk around the station at any point to -- --A.: No.

Q: To look at anything?A: No.

Q: (Reading from a document that the Transit Authority had produced in connection with the inci-dent) Can you please read what the top paragraph says?A: “In case of accident, dispute, or trouble, however slight in connection with or near your car, train, or station, render all necessary assistance and obtain the names and addresses of persons injured and all witnesses. Fill out report given thereon names of witnesses and attach to report all witness slips. Train crews will hand report to dispatchers. Railroad clerks, platform men, porters and other employees will telephone immediately preliminary report to supervisor’s office and then forward to their supe-rior.”

Q: Now, where it says with respect to the information “obtaining the names and addresses of persons injured and all witnesses,” how would you obtain that?A: I guess you ask the person where they live.

Q: Would that be the person -- would they have to come to the toll booth or would there be another way of ascertaining their information?A: The person will be at the booth because I couldn’t

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come out. I can’t come out of the booth so I would be in the booth unless I don’t know. I can’t come out of the booth.

Q: How would you be communicating with them -- through the slot, through the door, somewhere else?A: Through the window -- there’s a glass we could see each other. We can see in and out.

Q: “State condition of place or equipment at the time of the accident?”A: “Did not see stairway”

Q: Now is it that you (are) not seeing the stairway?A: Correct.

Q: “State condition of the lights at the place of the accident?”A: Lights are on.

Q: How would you know that?A: I probably looked in the direction of where the accident occurred.

Q: How far from where the incident occurred is the toll booth?

A: About 20 or 30 feet --

(Testifying again later on about the lights:) Q: What about the lights over in the platform?A: Oh I couldn’t see that.

Q: So if there are stairs and then a platform and then more stairs, could you see the light above the middle platform?A: No.

(Reading from the report again.)Q: “Was place dry wet or damp?” – you wrote… A: “Damp.”

Q: How would you know that?A: I don’t know, I wouldn’t know that, but -- I don’t know. I guess, because of the rain maybe. I really don’t know.

In these circumstances, the TA is hoping that plain-tiffs will depose as follows: “Please mark the incident report. Is that your sig-nature? Is it your handwriting? Who did you speak with? I ask you to look at the other docs. Do you

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recognize them? Who are the employees indicated on the other reports? Other than filling out the report what else did you do? Did you see my client? Speak with my client? See the condition that was the com-petent cause of the accident?” And all too often, that is just what happens! To all the questions that are not about the report specifically, the witness will likely say “no” or that they “don’t know.”

This whole deposition could take 20 minutes and yet never get to the questions that need to be asked. For example, since the Station Agent can’t leave the booth – is not allowed to leave the booth by rule, actually – how is it that they have any information about a client who was taken from the scene by ambulance and was never within 50 feet of the Station Agent’s booth? These questions and all the information that you can get out of the witness will require the attor-ney doing the questioning to focus not only on what is in the report but also how the information got into the report. What careful questioning will uncover is what portions of the report are pure hearsay and even made up and what information contained therein has at least the color of reliability.

When deposing this type of witness, do not start out with questions such as: Has the witness seen any gaps between the Subway car and the platform? Holes or cracks in the floors? Broken tiles? Worn stair treads? Broken nosing on steps? etc. The witness will invari-ably answer “no,” “I’m not sure,” or “I don’t recall.” Instead I suggest you take the witness through the route that they take to get to their assigned location each day, how many months or years they took that route/path, how long they were assigned to that location, how did they get there, who else worked there. Then ask about where they walked within the area. Ask if they have ever seen a dangerous condi-tion. If they have, what did they do? If they haven’t, what were they trained to do if they happened to see one? If they do see a dangerous condition what are they supposed to do? What writings do they make? What reports do they file? Who are they supposed to tell? What department handles the different types of dangerous conditions that the they might encounter? Have you ever reported a dangerous condition? How did you do it? How many times have you done it? What type of conditions have you reported? What conditions are you trained to report? As soon as they answer this question, place your photo of the defect – whatever it might be – in front of the witness, and ask “is this the type of condition you would report?” Whether they answer yes or no, you ask “why?” Then ask how would you report it? To whom? What are the names of the different reports that you could

fill out? After you would fill it out, where would the reports be filed? What would be done after the report is made?

As mentioned earlier, plaintiff must deal with the defendant’s attempt to put into Discovery orders that they will exchange records or documents that are relevant only after the EBT. This cannot be permitted! We have also seen instances where the defendant has interposed the same response to Discovery Demands. Again, this is not the law in New York and you can-not properly prosecute your case with post EBT discovery. All too often you don’t get the continued deposition2, or getting it will require motion practice, conferences, and delays of up to a year. Obtain the discovery first, no matter what it takes, and then do the deposition.

Sometimes it is simply not enough to show that the first defense witness to be produced had no knowl-edge: the attorney must also demonstrate that there is an additional witness to depose that has relevant information.3 To show this it may be necessary to conduct a very thorough deposition of the produced witness to discover “who would know.”

What follows is a sample of questions to ask a record witness that relate to defective hardware (subway grating) installed in the street or sidewalk. While specific for purposes of illustration, these questions are readily adaptable to most situations.

1. Name

2. Address – get a stipulation from defendant to accept service for subpoenas if they won’t give you the home address (even if he is an employee), because if he leaves and you have the stipulation, the corporate defendant has a problem. Otherwise, it’s your problem.

3. The first substantive questions should always be: Did you review any records before coming here today? Did you go to the scene before coming here today at anytime? If they say no – you ask why not? You knew you were testifying, didn’t you? If they say yes – delve. Ask to see exactly what the witness reviewed, do not just accept a description of what they reviewed or presume that the copy in your file is identical.

4. Ask for the name of every conceivable record or document that could be generated for the matter at issue. Ask for all complaints, the mechanism for reporting, saving, storing and transferring them to

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the appropriate department that fixes them, as well as records for maintaining, repairing, purchasing, construction, creation and installation of any item at issue.

5. Ask for every conceivable department that the witness is aware of within the organization that you are suing. Do not limit it to the departments that you think are pertinent to your issue. Ask what all the departments are and what they do. Then you ask again if there are any other departments that are remotely involved with the maintenance, inspec-tion, installation, repair or record-keeping for the surface gratings.

6. Go back to the records questions and pound away at what types of electronic data, computer files, com-puter notes, written notes they keep. What are their rules and/or regulations regarding record retention, record storage or record destruction? Where are these rules written down? What are the names of the guide-lines or manuals that have rules regarding record retention and storage?

7. When dealing with records that the witness does recognize, identify or authenticate, question the wit-ness fully. If the witness is a maker or signer of same, or even if they only provided information to others that appears in the report, nail them down as to the accuracy and veracity of their information. How did they come by the information? Was it true and accurate when they entered it into the report? Does their employer require them/train them/have rules for them to make sure that only true and accurate information is entered into the document in ques-tion? What efforts did they make in this instance to ensure that all of the key information was true and accurate?

8. When the witness starts to say that he/she does not know, go through the following for each thing you are asking about. The below line of questions can be used every single time a record keeper says I don’t know about a department, a record or a document.

a. If you don’t know, who would know?b. If you wanted to find this information out, who is the person that would most likely know whether they are presently employed or not?c. In your department at this time, who would most likely know?d. If you have no idea who to ask, then who is the person most knowledgeable in your depart-ment?e. Who is most likely to know about this issue,

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whether in your department or not? f. Who has been in your department the longest?g. If the witness claims to not know who has been in the department the longest and denies having any idea who is the person likely to be the most knowledgeable, then ask them to name everyone in the department that they work in, starting with their immediate supervisor and go through the chain of command as well as their co-workers and job titles. h. If the answer is no to everything, ask “Are you saying it would be impossible for you to find this out no matter how important it was to get the information?”

9. For each record mentioned by the witness as well as the records that they exchanged, ask who keeps the records?

a) Where they are kept?b) What cabinet they are kept in? c) Who goes into the cabinet?

10. Who looks at those records? Under what circum-stances are they requisitioned?

11. Ask what the witness physically did to conduct the search. This is very important because when you are arguing how far back the defendant must go to get records you are often limited by the Judge. Generally the concept that the City or other entities only have to search two or three years back for records is because of the burdensome nature of the searches and the volume of cases that the municipalities have pending at any one time. If you need or want a longer search back, it will be much easier to convince the Judge to give you more if can you get testimony from a wit-ness such as, “The search goes back as far as I feel like entering the dates in the computer – up to 20 years back.” After such testimony what can the excuse be that the plaintiff would only be entitled to two years back? The argument to the Judge should be that the idea of limited searches, at least for records that are scanned in, should be a thing of the past with modern technology.

12. Who inspects these gratings?

13. How often are inspections done? a) What is the schedule? b) What department does the inspection? c) What are the job titles of the individuals who do the inspections? d) Are there guidelines covering the routine maintenance of the gratings?

14. How does the TA find out about these defective gratings?

15. Once the TA finds out that a grating is dangerous and/or defective, what are the practices and proce-dures that are implemented regarding the mainte-nance, repair and replacement of the grating?

16. If the witness knows the answer to the above, ask where those practices and procedures are written.

17. From the time the TA gets notice of the defective and/or dangerous grating, what is the time period the TA sets for the replacement or repair of the grating.

18. Where is that written down?

19. What is the name of the manual or writing that governs the repair and replacement of the gratings?

20. Ask if the witness has ever read the manual or writing or was it told to him?

21. Ask if the person ever goes for training?

22. Where was he trained?

23. Who trained him? (It’s always good to get the trainer.)

24. Once a grating is identified as needing to be replaced or repaired, ask who or what department fixes them? If the answer is “I don’t know,” again you ask who would know? If they say “I don’t know” again, ask who would be most likely to know? And so on.

25. Go into the inventory/purchasing of the replacement pieces (or in this case, gratings).

26. Ask how one requisitions a new grating.

27. Where are the gratings stored?

28. How much do they cost?

29. Do you order them or manufacture them? “I don’t know.” Ask the witness who would know. “I don’t know.” Then ask who would know that you could ask that would most likely be able to help you find out that information.

30. Ask who inventories the gratings. a) Is this information kept on computer? b) How are they ordered?

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c) How are they delivered? d) How are they transported? e) How are they paid for?

Then ask which department is responsible for each leg of the ordering, shipping procurement and instal-lation of the grating.

31. Also ask if they subcontract the repair work out.

32. Ask about any big contractors that you may suspect regularly work for the Transit Authority, such as Judlau (for example). 33. Ask who sets the inspection schedule, how was it developed. Every time you get the answer “I don’t know,” keep probing: who would know, who would you go to to figure it out, where are the records kept, who keeps them, etc.

34. Ask why do they inspect so infrequently. (That question never goes over well.)

35. If you feel you are getting nowhere with theabove questioning, then try a long narrative ques-tion and break it up into pieces as necessary.

a) Ask, generally, if a subway grating is broken, take me through what happens at Transit (from beginning to end, i.e., from the time the TA discovers the broken dangerous defective grating until it gets repaired).

b) Ask about all the different ways that the TA would find out that there is a grating that is in need of replacement.

c) Once this defective grating is discovered by the TA, where do the notices go, to whom does it get reported? Where are they stored, who puts in the work order, who takes the work order and begins the process?

d) Please take me through all the steps, all the paperwork generated, before and after the job is finished.

e) What approvals need to be signed off on before a grating is ordered and installed?

f) The name of every record generated as a result of the discovery and eventual repair including the accounting.

g) The name of all the people who are involved in the repair, inspection, ordering and installation of the grating.

h) The names of the departments, names of the supervisors, names of all the people

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who actually do the types of inspections and repairs the witness knows of regarding these gratings.

i) When the job is finalized, who does the final inspection?

j) Where are final inspection records kept for this type of repair/replacement of grating.

A lot of these questions are simple common sense. Yet, all too often, they are missed when the attorney gets focused on one point or another and ends up missing something important. The monotonous nature of the subject matter, as well as the sheer monstrosity of the record-keeping apparatus on the other side, works against you keeping your approach and your questioning fresh.

One of the most serious problems in suing municipalities and other large bureaucratic entities is that often to prove a case you must rely solely upon records kept by those you are suing. If they can keep you from uncovering what you need, you cannot survive at Trial (or Motion). A Preclusion Order for failure to produce records against a defendant in this situation is worth little more than its paper for that reason. Deposing the record keeper is generally viewed as one of the most boring, onerous and painful tasks of the personal injury practice. Paradoxically, it can also be one of the most crucial. I wrote this in the hope it would provide some guidance and direction for this crucial yet mundane type of deposition which can often make or break your case.

1 Barrett v. NYCTA. The transcript is available to plaintiff’s attorneys who contact the author directly. 2 White v. Time, Slip Op 01954,(2nd Dept. 2010) the lower Court refused to permit the deposition of a witness and the Appellate Division reversed and granted another deposition. Although the Appellate division reversed it took an appeal to get another deposition of even an eye witness.3 Saxe v. City of New York, 250 A.D.2d 751, 671 N.Y.S.2d 1002, (2nd Dept. 1998). The Court held: “The court properly denied that branch of the motion by the appellant which was to compel the respondent City of New York to produce three additional witnesses for depositions. “In order to show that additional depositions are necessary, the moving party must show (1) that the representatives already deposed had insufficient knowledge, or were otherwise inadequate, and (2) there is a substantial likelihood that the persons sought for depositions possess information

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which is material and necessary to the prosecution of the case” (Zollner v. City of New York, 204 A.D.2d 626, 627, 612 N.Y.S.2d 627; see also, Uvaydova v. New York Tel. Co., 226 A.D.2d 626, 641 N.Y.S.2d 565). The appellant failed to establish either one of the foregoing elements.”

David Roth is a member of the Board of Directors of NYSTLA and a Committee activist. He is partners with his wife Audra Roth in the Manhattan firm of Roth & Roth, LLP. He has been litigating cases involving all areas of personal injury on behalf of plaintiffs for approximately 20 years. Recently his practice has concentrated on complicated municipal liability as well as Traumatic Brain Injury (TBI) and other significant injury cases.

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