Effective Depositions of Business Organizations
by Michael K. Hurst and Jonathan R. Childers
State and Federal rules of civil procedure provide lawyers with a prime opportunity to pin down the factual and legal positions of an organization through one or more deponents whose attendance is secured by one notice. The deposition is of the entity itself, which is required to produce the witness(s) to testify on the noticed subject matters.
A corporate representative deposition is particularly helpful in business litigation. It facilitates the discovery of facts that are known by the organization, but about which individual witnesses within the organization may disclaim personal knowledge and lead lawyers on wild goose chases. Early in a case, it functions to secure a position by the organization on hotly contested issues, and to obtain facts that could take months to learn through written discovery. The deposition is effective to elicit testimony on issues of agency, policies and procedures, relationships between businesses or affiliated entities and establishing or discrediting “knowledge” or “intent.”
The corporate deposition rules—Texas Rule of Civil Procedure 199.2(b)(1) and Federal Rule of Civil Procedure 30(b)(6)—govern the protocol for noticing, producing, and subpoenaing parties and non-parties for oral deposition. See also Tex. R. Civ. P. 176, 199, & 205; Fed. R. Civ. P. 30, 45.
An effective corporate representative deposition starts with the deposition notice. The notice must describe with reasonable particularity the matters upon which examination is requested. See Tex. R. Civ. P. 199.2(b)(1); Fed. R. Civ. P. 30(b)(6). This triggers the organization’s obligation to designate competent witnesses to testify on its behalf as to information that is known or reasonably available to the organization, with respect to each matter.
The description of the subject matters should be drafted with great care, since the description determines the scope of the deposition subject to the discovery rules. First, be as broad as possible when describing the subject matters, so that you have latitude for questioning during the deposition. The optimal notice stays broad, but contains enough detail to allow the organization to select and prepare a witness, thereby providing adequate notice without giving away case strategy. Second, if you know about critical documents or communications at the time the notice is served, consider listing them as subject matters. Third, make sure to identify at least one catch-all subject matter, such as “all claims and defenses in this lawsuit.” Fourth, if the corporate representative deposition was noticed by a co-party, consider cross-designating your own subject matters. This way, if the other party’s notice does not address topics you want to cover, yours will.
Before the deposition, try to elicit from opposing counsel the identity of the persons who will testify and the subject matters for which they are designated. During the deposition, spend time ensuring the organization has, in fact, produced witnesses who can testify to each of the topics and that they are authorized to speak on behalf of the organization. Ascertain the basis of the witness’s knowledge, what he or she did to prepare to testify, with whom he or she spoke, and the materials reviewed.
Do not accept responses of “I don’t know” or “I can’t recall.” Instead, remind the witness that the organization has designated him or her to testify as to its knowledge. If the witness claims to lack personal knowledge, (1) discover who does, and (2) remind the witness that he or she must testify as to all information known or reasonably available to the organization concerning the subject matter, even if it extends beyond personal knowledge.
Expect an objection that some of your questioning is beyond the scope of the notice, and be ready to respond on the record. Common responses include: stating the applicable subject matter, citing a catch-all topic included in your notice, or referencing the general scope of discovery rules. If possible, video the deposition, since this formality often helps to keep the witness cooperative. Also, bring your rulebook in case you need to reference the corporate deposition rules.
Listen, follow-up, and commit the witness to a clear position and acceptable answer. Only occasionally refer to your outline to ensure you are not missing topics or documents from which you planned to inquire. Bring copies of any documents that you intend to use as deposition exhibits, and highlight and tab YOUR copies so that you can direct, in a quick and organized way, the witness to exactly where you want him or her to focus.
Taking an effective corporate representative deposition early in a case should successfully position your client and its case, and serve as a foundation for settlement and trial.
Michael K. Hurst is a partner and Jonathan R. Childers is an associate at Gruber Hurst Johansen Hail Shank LLP. They practice business trial law and can be reached at firstname.lastname@example.org and email@example.com, respectively.