By Alan Hoffman on July 14, 2017

Labor People SilhouettesMitt Romney famously told a heckler during his Presidential campaign, “Corporations are people, my friend.” While corporations are not people, they and other organizations surely are legal persons capable of suing and being sued. But how to take the deposition of a corporation or organization which can only speak through employees or representatives?

The Federal Rules of Civil Procedure answered this question in 1970 by adopting Rule 30(b)(6). It provides that a party may in a notice or subpoena name a corporation, partnership, association, government agency “or other entity,” and designate, “with reasonable particularity,” the matters for examination.  The named organization must then designate “one or more officers, directors or managing agents, or designate other persons who consent to on its behalf,” and may set out the matters on which the person will testify. The Advisory Committee notes state that it “should be viewed as an added facility for discovery, one which may be advantageous to both sides as well as an improvement in the deposition process.”  Most states have adopted similar procedures. Such depositions can be particularly useful in product liability cases.

It is essential to prepare a notice describing the subjects with “reasonable particularity.” More specificity is always better than less. Prior document production can provide a roadmap for the subjects and a framework for the examination, but the procedure can also be used to help identify categories and the identity of relevant documents. In all events, as much focus as possible is essential.   The notice to a party and the subpoena to a non-party may be accompanied by a request to produce documents and tangible things at the deposition pursuant to Rules 34 and 45.

The benefit of taking an organization’s deposition is avoiding spending time and resources identifying knowledgeable persons and relevant documents concerning a product’s design, manufacture, instructions and warnings. The rule requires that the witnesses must testify about information “known or reasonably available to the organization,” and their testimony should be binding on it.[1] If a witness lacks information about a subject, the organization should not be allowed to offer evidence on it without good cause. The deposing party is free to ask questions beyond the scope of the notice, but the testimony will not bind the organization.

Organizations can also benefit from the procedure. It allows them to choose witnesses who will testify effectively, without speculating or volunteering, and the persons selected need not have personal knowledge of the subject matter.  Sometimes the best witness may be a former employee or a non-employee, but the attorney-client privilege may not apply to such witnesses. Local law governs on this issue, and varies widely.

The deposition notice is a roadmap to the questions to be expected, facilitating preparation and increasing the chances of getting meaningful testimony on difficult issues, such as the “safety” of a product and risk-benefit assessments. Organizations and their attorneys must properly prepare the witnesses and acquaint them with all pertinent information and documents. Offering a witness lacking knowledge of relevant matters can be sanctionable.

It is essential to assess the personal qualities and skills of prospective witnesses before selection. Low level employees, even if knowledgeable and well-meaning, may lack an appreciation of the issues involved in product design, manufacture and warnings, and the ability to cope with the stresses of answering deposition questions.  An effective witness is one who can understand the big picture and relate it to the specifics of the product and the facts of the case. Designating an in-house lawyer or paralegal is rarely advisable, because it risks waiving the attorney-client and work product privileges. Once that door has been opened, it is difficult to close.

It may be advantageous to identify the witnesses who will testify and the subjects about which they will testify before the deposition. Counsel for the organization may also choose to identify the documents reviewed by the witness in advance. These steps can contribute to economy of time and resources for all concerned by allowing counsel taking and defending the deposition to focus on those matters.  As with all litigation tactics and strategy, the facts of the individual case and exercise of sound judgment will govern whether to adopt such measures.

Depositions of an organization’s witnesses can be advantageous to both sides and facilitate the discovery process, as envisioned by the Advisory Committee notes. But—as in all aspects of litigation—cooperation and collaboration between counsel are essential to realizing these benefits.

[1] Case law is not uniform regarding whether a designee’s testimony binds the organization. Compare Brazos River Authority v. GE Ionics, Inc. 469 F.3d 416 (5th Cir. 2006) (testimony binding) with A. I. Creditcorp v. Legions Co., 265 F.3d. 630 (7th Cir. 2001) (similar to other deposition testimony).