The Corporate Representative’s Deposition Bill Of Rights (And Wrongs)

Real Property Litigation   |   Mass Tort and Product Liability   |   Pharmaceuticals and Medical Devices   |   October 1, 2014
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Your company’s general counsel just “voluntold” you that you’re going to be deposed as the company’s representative in a court case that you’ve never heard of. What in the world is she talking about, and what will you have to do? This primer tells you.

Corporations may be people, but not the kind who can sit down in a chair and answer their opponent’s questions under oath. So when your company’s opponents want to take your company’s deposition, court rules allow them to give the company a list of topics and require the company to identify one or more people who will give live testimony at a deposition. That person is known as the corporate representative. Here’s what the corporate representative should know about their role.

You Do Not Have The Right To Remain Silent
It doesn’t matter if you don’t know anything about the topics in the deposition notice, or if no one person in the company knows everything about them. Educating a witness who can gather and summarize everything that the company does know is just one of the “obligation[s] that flows from the privilege of using the corporate form to do business.” QBE Ins. Corp. v. Jorda Enterprises, Inc., 277 F.R.D. 676 (S.D. Fla. 2012). In his QBE order, U.S. Magistrate Judge Jonathan Goodman listed 39 paragraphs of “guiding principles” for corporate representative depositions. Several of those principles, along with some other key considerations for corporate representatives, are summarized here.

The company must provide a witness who can testify to:

  • More than just the witness’s own personal knowledge. If you’ve ever been deposed as an individual witness, you were probably told not to speculate, and that your attorney could object if a question sought information you didn’t personally know. As the corporate representative, you usually don’t enjoy that protection. Your company must educate you about the topics in the notice, even if they go well beyond anything you were personally involved in. Sara Lee Corp. v. Kraft Foods, Inc., 276 F.R.D. 500, 503 (N.D. Ill. 2011).
  • Information from the boardroom to the mailroom. The corporate representative may need to meet with everyone from senior management to the most junior employees, and even contact government and regulatory officials outside the company. Fleurimond v. New York Univ., CV 09-3739 ADS AKT, 2011 WL 3273876, at *3 (E.D.N.Y. July 29, 2011).
  • Information that is verbally conveyed. Facts are not always documented in the form of written correspondence. As the corporate representative, you will be responsible for relevant information, even when it was brought to your knowledge orally. CSX Transp., Inc. v. Vela, 2:06-CV-112-RLY-WGH, 2007 WL 3334966, at *2 (S.D. Ind. Nov. 8, 2007).
  • Information “reasonably available” to the company. Even if the company doesn’t have knowledge readily available, if the topic is relevant to the litigation and the company wants to offer evidence on that topic, it must gather the information “reasonable available” to it, and prepare the corporate representative to testify regarding what it has learned. Fowler v. State Farm Mut. Auto Ins. Co., No. 07-00071 SPPK-KSC, 2008 WL 4907865, at * 4 (D. Haw. 2008).
  • Information known only to former employees. If no one still with the company knows about the topics, but former employees do, the company must make reasonable efforts to learn what those former employees know. This includes reviewing “former employees' files and, if necessary, interviews of former employees or others with knowledge.” In re Brican Am. LLC Equip. Lease Litig., 10-MD-02183, 2013 WL 5519969,  at *10 (S.D. Fla. Oct. 1, 2013). On the other hand, the company can’t be faulted for failing to interview witnesses who refuse to speak to it. Costa v. County of Burlington, 254 F.R.D. 187, 191 (D.N.J. 2008).
  • Information that comes from other documentary evidence in the case. To prepare for the deposition, the corporate representative may need to “review available materials, such as fact witness deposition testimony, exhibits to depositions, documents produced in discovery, materials in former employees’ files and, if necessary, interviews of former employees or others with knowledge.” QBE, 277 F.R.D. at 689.
  • Information that takes much time and effort to review. Just because deposition preparation is time-consuming and burdensome doesn’t excuse failure to adequately prepare. Peshlakai v. Ruiz, CIV 13-0752 JB/ACT, 2014 WL 459650 at *22 (D.N.M. Jan. 9, 2014).
  • Information about the company’s subjective point of view. The corporate representative usually has to know more than just the facts. She also has to offer the company’s positions, beliefs, interpretation of events, and opinions. Additionally, she must “explain the organization’s interpretation of documents, give reasons for the interpretation, and stand subject to cross-examination.” F.D.I.C. v. 26 Flamingo, LLC, 2:11-CV-01936-JCM, 2013 WL 3975006, at *5–6 (D. Nev. Aug. 1, 2013).
  • Information the company learned through its lawyers. Just because the company learned information through lawyers or investigators doesn’t necessarily make it privileged. The company need  not disclose its lawyers’ opinions or strategies, and can sometimes protect the details of what investigative avenues it has and has not pursued. Protective National Insurance Company of Omaha v. Commonwealth Ins. Co., 137 F.R.D. 267 (D. Neb. 1989); United States v. District Council of New York City And Vicinity of the United Brotherhood of Carpenters and Joiners of America, 1992 WL 208284 (S.D.N.Y. Aug. 18, 1992). But the corporate representative must usually testify to facts that a company learned through its lawyers’ investigation. SEC v. Merkin, 283 F.R.D. 689, 697–698 (S.D. Fla. 2012).
  • Information about how the company keeps its information. A company’s opponent can legitimately ask about the company’s “general file keeping, storage and retrieval systems.” Marker v. Union Fidelity Life Ins. Co., 125 F.R.D. 121, 126 (M.D.N.C. 1989).

Anything You Say (Including “I Don’t Know”) May Be Used Against Your Company
Your company is required to provide a witness who can provide answers that bind the company. Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1146 (10th Cir. 2007). That means the company will have to stand by your words throughout the case, unless it’s got a very good explanation for why you got it wrong.

This also means that if your answer is “I don’t know,” then the company may be stuck with “we don’t know” at trial if the court forbids the company from offering evidence on the issue. Fraser Yachts Fla., Inc. v. Milne, 2007 WL 1113251, at *3 (S.D. Fla. Apr. 13, 2007); Ierardi v. Lorillard, 1991 WL 158911 (Aug. 13, 1991).

If you have to testify that, even after a reasonable investigation, the company still doesn’t know something, you’ll have to testify to the company’s opinion about why it believes the facts should be construed in a certain way. United States v. Taylor, 166 F.R.D. 356, 363 (M.D.N.C. 1996).

You Have the Right To An Attorney (To Help Your Prepare)
Just because information must be gathered by interviewing executives and employees doesn’t mean that you must personally conduct those interviews. The witness need not personally conduct interviews of witnesses. Reichold, Inc. v. U.S. Metals Ref. Co., 2007 WL 1428559 (D.N.J. May 10, 2007). Your lawyers, investigators, or others in the company can conduct the interviews, review the documents, and then brief you on them.

You Have The Right Not To Be The Company’s Most Knowledgeable Person
Some deposition notices still ask for the “person most knowledgeable” on the topics. But that’s not what the rule requires. So long as you’ve been adequately prepared to bind the corporation with your answers, it doesn’t matter if others in the company know a lot more than you do about the topic. Aldridge v. Lake Cnty. Sheriff's Office, 11 C 3041, 2012 WL 3023340 at *4 (N.D. Ill. July 24, 2012).

Some courts have even said that companies are free to designate a particular witness for any number of surprising reasons. “[A] corporation may have good grounds not to produce the ‘most knowledgeable’ witness for a 30(b)(6) deposition. For example, that witness might be comparatively inarticulate, he might have a criminal conviction, she might be out of town for an extended trip, he might not be photogenic (for a videotaped deposition), she might prefer to avoid the entire process, or the corporation might want to save the witness for trial.” QBE, 277 F.R.D. at 689 at 688.

You Have The Right To Know What’s On The Test
The rules require “reasonably particular” topics from your opponent. They can’t require you to memorize the encyclopedia by adding phrases like, for example, “including but not limited to,” to their topics. Reed v. Bennett, 193 F.R.D. 689, 692 (D. Kan. 2000). Topics like “any statement of fact set forth in the complaint to which defendant has denied,” or any documents a party “might conceivably offer as evidence at trial” are also improper for the same reason. Skladzien v. St. Francis Reg. Med. Center, 1996 WL 807353 (D. Kan Dec. 19, 1996); Kranias v. Tsiogas, 941 So. 2d 1173 (Fla. 2d DCA 2006).

If you don’t properly prepare for the deposition, your company can be sanctioned with a fine, a ruling that its witnesses won’t be allowed to testify at trial, or even with stricken pleadings. Reilly v. Natwest Mkts. Grp., Inc., 181 F.3d 253, 269 (2d Cir. 1999).

On the other hand, you’re not required to be perfect. Your company won’t be sanctioned just because you can’t answer every question on a certain topic. Elan Microelectronics Corp. v. Pixcir Microelectronics Co. Ltd., 2:10-CV-00014-GMN, 2013 WL 4101811 at *8 (D. Nev. Aug. 13, 2013).

If it turns out that you don’t have all the details on a particular topic, the company will have to follow up by producing another witness. Marker v. Union Fidelity Life Ins. Co., 125 F.R.D. 121, 127 (M.D.N.C. 1989).

Courts recognize that these depositions are not “a memory contest or an opportunity to require a witness to do detailed mathematical calculations on the spot,” but they do require the company to make a good faith conscientious effort to properly prepare its witness. Elan Microelectronics Corp. v. Pixcir Microelectronics Co. Ltd., 2:10-CV-00014-GMN, 2013 WL 4101811 at *5 (D. Nev. Aug. 13, 2013).

That said, if the witness’s knowledge is limited for some reason, the company should notify its opponent of that fact before the deposition begins. Calzaturficio S.C.A.R.P.A. s.p.a. v. Fabiano Shoe Co., Inc., 201 F.R.D. 33, 38 (D. Mass. 2001).

Testifying as your company’s representative isn’t always easy. Done right, however, your work will be invaluable in helping your company tell its story at trial.

Republished with permission by the American Bar Association
Title Insurance Litigation Committee Newsletter, ABA Tort Trial & Insurance Practice, Fall 2014. © 2014 by the American Bar Association.

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