Outside the Scope How to Conquer Corporate Representative Depositions

Outside the Scope How to Conquer Corporate Representative Depositions By David S. Becker and Emily C. Shapiro 56 THE BRIEF ❭ Fall 2023 PUBLISHED IN THE BRIEF, VOLUME 53, NUMBER 1, FALL 2023. © 2024 BY THE AMERICAN BAR ASSOCIATION. REPRODUCED WITH PERMISSION. ALL RIGHTS RESERVED. THIS INFORMATION OR ANY PORTION THEREOF MAY NOT BE COPIED OR DISSEMINATED IN ANY FORM OR BY ANY MEANS OR STORED IN AN ELECTRONIC DATABASE OR RETRIEVAL SYSTEM WITHOUT THE EXPRESS WRITTEN CONSENT OF THE AMERICAN BAR ASSOCIATION. GETTY IMAGES/MOMENT/FRANCESCO CARTA FOTOGRAFO GETTY IMAGES/ISTOCK/GETTY IMAGES PLUS/JACOB WACKERHAUSEN C orporate representative depositions are an indispensable part of commercial litigation. Rule 30(b)(6) of the Federal Rules of Civil Procedure allows a deposing party to call for the company to designate a witness to testify on certain identified topics. Most states likewise adopt the same or a similar rule for state court matters. These rules provide a critical convenience for both sides in commercial litigation. Particularly, they permit parties seeking information from their adversaries to seek information based on subject matter, without needing to know beforehand each and every individual corporate employee who has the specific, requisite knowledge. At the same time, they permit companies to present a single prepared witness (or group of witnesses), properly prepared and armed with the company’s knowledge, to provide requested information in a streamlined process, avoiding serial presentation of numerous witnesses. The rules thus provide efficiency, limiting the expenditure of time and resources that could otherwise be focused on the company’s business. The rules are relatively straightforward, but, in practice, corporate representative depositions can present challenges both for deposing attorneys and for the companies, and their counsel, responding to notice and subpoenas. These challenges arise both in discovery and at trial and require focused understanding to optimize the value of this expedience. This article discusses the ins and outs of corporate representative depositions and provides best practices for propounding notices, responding to them, and preparing and presenting witnesses pursuant to those notices. Notice or Subpoena Directed to an Organization Federal Rule of Civil Procedure 30(b)(6). Rule 30(b)(6) states as follows: In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. Before or promptly after the notice or subpoena is served, the serving party and the organization must confer in good faith about the matters for examination. A subpoena must advise a nonparty organization of its duty to confer with the serving party and to designate each person who will testify. The persons designated must testify about information known or reasonably available to the organization. This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules. 1 Rule 30(b)(6) dictates the procedures, for both parties involved, to prepare the most efficient and helpful discovery ambar.org/tips ❬ THE BRIEF 57 PUBLISHED IN THE BRIEF, VOLUME 53, NUMBER 1, FALL 2023. © 2024 BY THE AMERICAN BAR ASSOCIATION. REPRODUCED WITH PERMISSION. ALL RIGHTS RESERVED. THIS INFORMATION OR ANY PORTION THEREOF MAY NOT BE COPIED OR DISSEMINATED IN ANY FORM OR BY ANY MEANS OR STORED IN AN ELECTRONIC DATABASE OR RETRIEVAL SYSTEM WITHOUT THE EXPRESS WRITTEN CONSENT OF THE AMERICAN BAR ASSOCIATION. TIP : Whether taking the deposition or preparing a witness, always keep the subject matter outlined in the notice top of mind. process while still understanding it is on behalf of the corporation, not individuals. December 2020 amendment. The 2020 amendment to Rule 30(b)(6) made clear that the meet-and-confer requirements apply in third-party subpoenas and that parties are to provide a subpoena to advise “a nonparty organization of its duty to confer [with the serving party] and to designate each person who will testify.” 2 The purpose was to strengthen the rule’s requirements to avoid deposing parties providing overly broad topic lists and, in turn, creating scenarios where respondents presented inadequately prepared witnesses and unnecessary follow-on motion practice. 3 The rule now requires that “[b]efore or promptly after the notice or subpoena is served, the serving party and the organization must confer in good faith about the matters for examination.” 4 This amendment serves to prevent conflicts or disagreements regarding the topics prior to the deposition itself. 5 Significantly, it allows parties to clarify and focus the matters for upcoming depositions and ultimately create a more productive process. Where Deposition Limits Apply, Rule 30(b)(6) Preserves Flexibility in Discovery Depositions under Rule 30(b)(6) are treated as a single deposition. 6 Thus, in jurisdictions where there are limits, such as those applying a limit of 10 depositions per side, a party can still preserve nine specific noticed depositions while covering extensive ground in the single corporate representative deposition. Depending on the court where the litigation is pending, this has the potential to expand the total number of depositions available to a party. But courts differ as to how they apply the seven-hour time limit where numerous corporate representative witnesses are designated to testify. 7 In practice, it is a good idea for both sides to agree on an extended time limit for the corporate representative deposition—particularly when numerous individuals are being designated to cover portions of the noticed subject matter. Alternatively, a party seeking appropriate time to question numerous designees or to address a large number of topics can always approach the court to seek additional time for questioning. 8 While the requirements for preparation may be different from ordinary depositions, the same rules apply to the way a deposition itself is conducted. That said, during deposition, there is nothing preventing the parties from reasonably agreeing to let the corporate representative take a break to confer with a colleague by phone or other means to get an accurate answer. Of course, if such breaks become excessive, there may be a valid objection that the witness is inadequately prepared, and that issue can be addressed with the court and may lead to supplemental time with the representative—potentially at the expense of the presenting party. Rule 30(b)(6) Allows a Corporation to Present a Coherent Story When companies are parties in litigation, it is often the case that very few, if any, individuals know all of the facts relevant to the case. Individual employees know facts relevant to their specific roles but lack an overall understanding of how those facts fit together as they pertain to the allegations and claims. Without the expedience of the procedure under Rule 30(b) (6) and its state law counterparts, companies would be required to assemble numerous witnesses and marshal them through the discovery process. Every point would require separate testimony and/or affidavits and follow-on depositions. From the perspective of a plaintiff, counsel would be left to treat every case as a search for needles in a haystack, working their way through corporate organizational charts and seeking depositions of employees based on suspected knowledge instead of actual involvement in the relevant matters. Rule 30(b)(6) helps both sides avoid the unnecessary wide-net initial search and allows for a single witness or group of witnesses to be prepared and presented to cover the legal issues identified by a litigation adversary in their own words. Corporate Representatives Should Be Chosen Wisely Once a corporation is subpoenaed through a proper notice or subpoena, the corporation has the opportunity to elect a representative for the company to testify. That designee will present the views, facts, and opinions of the organization as a whole. 9 Importantly, the corporation has complete discretion to choose the representative, so long as the representative is properly prepared and can deliver the corporate knowledge requested. Notably, the representative deponent could be a high-ranking officer or manager who consults with their team to prepare for the deposition, but the representative (as long as they can keep the information straight) could even be a contractor or a former employee. What matters is that the individual takes the time to understand things and can provide the facts when questioned. The “best” representative may not always be the most knowledgeable. A corporation may choose an individual based on familiarity with the company or merely on personality and David S. Becker is a member of Dickinson Wright PLLC and part of the firm’s IP and commercial litigation groups. He works out of the firm’s Chicago office and has represented companies and individuals in litigation involving technology and ideas. He has served as chair of numerous general and standing committees in TIPS and is part of TIPS Council. He may be reached at dbecker@dickinsonwright.com. Emily C. Shapiro is an associate with the firm Gutnicki LLP in Skokie, Illinois. She may be reached at eshapiro@gutnicki.com. 58 THE BRIEF ❭ Fall 2023 PUBLISHED IN THE BRIEF, VOLUME 53, NUMBER 1, FALL 2023. © 2024 BY THE AMERICAN BAR ASSOCIATION. REPRODUCED WITH PERMISSION. ALL RIGHTS RESERVED. THIS INFORMATION OR ANY PORTION THEREOF MAY NOT BE COPIED OR DISSEMINATED IN ANY FORM OR BY ANY MEANS OR STORED IN AN ELECTRONIC DATABASE OR RETRIEVAL SYSTEM WITHOUT THE EXPRESS...