As my high school baseball coach used to say, “proper preparation prevents poor performance.” The saying is equally applicable in preparing for any deposition. Litigation often involves depositions of witnesses, which can be fact witnesses, expert witnesses, as well as the parties’ corporate representatives. The focus of this article is properly preparing for the corporate representative’s deposition. Whether taking, defending, or just serving as the corporate representative for these types of depositions, the key is preparation
Purpose of a Corporate Representative Deposition
Under the Federal Rules of Civil Procedure, corporate representative depositions are governed by Federal Rule of Civil Procedure 30(b)(6). In Florida, the corresponding rule governing corporate representative depositions is Rule 1.310(b)(6). The purpose of these depositions is, in part, to streamline litigation and avoid taking multiple (and perhaps unnecessary) depositions of corporate deponents. Corporate representative deponents speak for the company, and their testimony is binding on the company. Though that testimony is not tantamount to a judicial admission, it does not mean a party can simply repudiate his/her prior testimony at trial. Carriage Hills Condominium, Inc. v. JBH Roofing & Constructors, Inc., 109 So. 3d 329 (Fla. 4th DCA 2013).
Understanding the Scope of the Deposition Notice and Selecting the Representative
The first step in preparing for a corporate representative deposition is reviewing and analyzing the scope of the deposition notice. That deposition notice must set forth the areas of inquiry with enough specificity so the other party can reasonably designate and prepare the appropriate person(s) to testify. In some cases, the deposition notice lacks that requisite specificity, and the areas of inquiry are simply too vague and/or broad for the party receiving the notice to prepare for the deposition. In those instances, and in advance of the deposition, the party receiving the deposition notice may need to serve an objection and/or file a motion for protective order with the applicable court.
Assuming the areas of inquiry in the deposition notice are stated with reasonable particularity, the party being deposed has the exclusive choice of selecting those persons to testify as to the areas of inquiry in the deposition notice. There is no requirement that those persons have personal knowledge or be the person with the “most knowledge” as to the areas of inquiry. There is also no requirement for only one person to testify as to all areas of inquiry or that those persons be employees, officers, and/or directors of the company. Instead, the selected corporate representative(s) must simply be prepared to answer substantively and provide meaningful answers on the areas of inquiry in the notice.
Those meaningful answers come from the deponent’s knowledge of information known to or reasonably available to the corporation. A party does not fulfill its obligations at a corporate representative deposition by stating he/she has no knowledge or position with respect to facts or areas of inquiry within its knowledge or reasonably available, and then later argue a different position as to those issues. U.S. v. Taylor, 166 F.R.D. 356 (M.D. N.C. 1996).
A party who receives a corporate representative deposition notice should carefully consider and select who will serve as the corporate representative. Proper selection of the deponent is critical, as this person will be the face of the company, and his/her deposition testimony will bind the company as to areas of inquiry in the deposition notice. A corporate representative, who has been deposed in other lawsuits, is calm under pressure, and not easily rattled by tough questions, typically will make a great witness for these types of depositions. Outside counsel and in-house counsel should work together to identify the person or persons best suited to answer questions at this type of deposition.
Reviewing Key Documents and Pleadings in Advance
The corporation must prepare its corporate representative deponent(s) to the extent information is reasonably available, whether that information comes from documents, former and current employees, and/or other sources. Carriage Hills Condominium, Inc. v. JBH Roofing & Constructors, Inc., 109 So. 3d 329 (Fla. 4th DCA 2013). The corporate representative, therefore, must be familiar with the pleadings and other filings made in the case, responses to interrogatories, and any key documents.
Well in advance of the corporate representative’s deposition, outside counsel and in-house counsel should work together to compile a deposition notebook containing the key filings and documents. They should also work together to conduct meetings between the deponent and any witnesses with knowledge as to the areas of inquiry in the deposition notice. While the deponent need not memorize or have perfect command of all the documents in that deposition notebook, he/she should be reasonably familiar with them. Counsel for the corporate representative deponent must spend time with the witness reviewing the areas of inquiry in the notice, as well any closely related issues, and correlate those areas with the information in the key documents and pleadings.
Always bear in mind that, if the corporate representative deponent is unable to answer questions regarding the areas of inquiry in the deposition notice, the corporation may be subject to sanctions. At deposition, a properly prepared corporate representative deponent should never answer “I don’t know” on an area of inquiry in the deposition notice. Of course, the corporate representative deponent may get questions that are outside even a broad reading of the areas of inquiry in the deposition notice. In that case, counsel may need to lodge the appropriate objections to protect against such testimony binding the company.
Anticipating and Responding to Deposition Questions
Once the corporate representatives have been selected and provided the information referenced above, outside and in-house counsel should meet as many times as is necessary for the witness to be prepared for the questions he or she will get at the deposition. Depending on the size of the case and issues involved, the requisite deposition prep sessions can last a few hours or many more hours over a period of many days.
Given the importance and binding nature of corporate representative depositions, these deponents must be taken seriously by all involved in the process. If counsel and the corporate representative deponent have done their jobs in preparing for this deposition, the witness should not be surprised by any question posed at this deposition. Indeed, a properly prepared corporate representative deponent should step into the deposition more relaxed and leave it feeling positive about the experience.