DTCI: Defending depositions of corporate witnesses in employment cases

Murphy

By Hannesson I. Murphy

Many lawyers think defending depositions is easy. They are not the ones asking questions, and they can just sit back and relax. I remember sitting across the table from a lawyer hired by a third-party (a doctor) who was being deposed, and the lawyer was so bored that he repeatedly kept drooping his eyes and then suddenly opening them in a very obvious attempt to stay awake. It was hard to suppress a laugh. To make matters worse, he was bored and sleepy only because he had just finished spending about a half an hour of the deposition opening and going through his email. If he actually heard any of the deposition his client was giving it would have been a miracle. Unlike that lawyer, most of us probably are not fortunate enough to have a client willing to pay us merely for trying to stay awake for a few hours. Being a sleepy lawyer is not going to cut it when the client’s case, money and reputation are on the line.

The depositions of company employees — its corporate representatives, executives, managers, and supervisors — are perhaps some of the most significant events in the life of an employment action. Lies, exaggerations, omissions and blurting out information that should not be volunteered can break the back of even the most defensible case. This note will examine the different types of depositions that defendant-employers will encounter and common issues associated with preparing to defend them.

Determining the type of deposition

The first order of business for an employment lawyer defending a company deposition is to determine the type of deposition at issue. Is this a basic fact-witness deposition or a Rule 30(B)(6) deposition of the company’s corporate representative? The two types of depositions are very different: fact witnesses testify based on their own memories, whereas corporate representatives speak on behalf of the company.

Prepping the witness

As early as possible — preferably before sitting down with the witness — the defending attorney should try to anticipate all that might happen during the deposition. To adequately prepare the witness for the deposition, the defending lawyer needs to seriously think about the case both on a macro and a micro level. What is the plaintiff’s objective in questioning the witness? Is there anything the witness could say that might sink the defendant’s case? What topics are likely to be raised with the witness? What exhibits are likely to be shown to the witness during the deposition? If there have been depositions from other witnesses, did they attribute any actions or comments to the witness? Grappling with these questions early should fill potential holes in the defense and enable both the lawyer and the witness to be ready for the deposition.

In addition, it would be a good idea to do a background check (including a search of public records and social media sites) on corporate witnesses. Anything in the public domain is fair game and could easily be made a subject during the deposition, so it is better to know about problems in advance so they can be discussed with the witness during preparation.

The defending lawyer also should assess whether a protective order needs to be entered in connection with the deposition. Note that Indiana Rule of Trial Procedure 30(B)(1) (and also FRCP 30(b)(1)) expressly provides for reasonable advance notice of a deposition. This is intended to enable a party to seek needed protections. Ryan v. State, 431 N.E.2d 115 (Ind. 1982).

After receiving notice, the defense lawyer should contact the witness to ascertain whether the witness is available for the deposition and can set aside a day in advance for a prep session. In complex cases, it may make sense to meet or at least talk with the witness more than once. That way, if something comes to light during the first discussion — say the witness needs to check notes regarding various comparators — there is time to run those issues to ground. In a case with multiple witnesses, it may make sense to meet with all of them together at some point to ensure that everyone is on the same page.

Before prepping the witness, the defending lawyer should double-check the status of the attorney-client relationship. Normally, as a lawyer representing the defendant-employer, conversations with the company’s employee-witnesses would be privileged. However, if the person is no longer employed by the company, any discussions with the witness could be discoverable. Depending on the importance of the witness, it may make sense to enter into a joint representation relationship with the defendant-employer and the witness.

The final prep session with the witness should be set close enough in time to the deposition that the witness does not forget what was covered. Ideally, this should be done in person to facilitate reviewing documents with the witness. During the meeting, plan on going over the witness’s personal history, employment history, criminal history (if any) and any other background issues that are likely to come up in the deposition. After covering background issues, dive into the facts of the case and go over any relevant documents or materials. Once that is done, then go into what to expect during the deposition itself, including how best to respond to questions and familiarizing the witness with objections. Lastly, address the appropriate attire for the deposition, as well as the location of the deposition and exchange cellphone numbers in case of any last-minute hiccups. In short, try to develop a rapport with the witness and make sure the witness feels completely at ease both with the procedural fine points and the anticipated testimony.

Who goes first?

There is no Indiana or federal rule on which party gets to take depositions first. Trial Rule 30(A) simply provides that after commencement of the action, any party may take the testimony of any person by deposition upon oral examination. The federal rules similarly are open ended.

Typically, the party with the burden of proof (i.e., the plaintiff) is deposed first, but there is no bright-line standard and few cases have addressed it, particularly in Indiana. As defense lawyers, a good strategy would be to ask to take the deposition of the plaintiff as early as possible. Then, if there is any debate, the defendant can point to having made the first request. These strategies have worked in several federal cases addressing the issue. Golla v. City of Bossier City, 2007 WL 2253416, at *1 (W.D. La. 2007); Sheehy v. Ridge Tool Co., 2007 WL 1548976 (D. Conn. 2007).

Your place or mine?

There also is no rule on where the deposition should take place. Typically, depositions are conducted at an attorney’s office, at a court reporter’s office, at the witness’s location (house/office) or at a neutral site (e.g., a hotel). As a matter of comity, the party who notices the deposition determines its location, and the decision is based mainly on convenience to the parties’ counsel and, of course, the witness (especially if the witness is a nonparty).

Trial Rule 45(D)(2) does provide some limits on the location of depositions to prevent witnesses from unnecessary trouble and expense. This rule, which applies to subpoenas, provides that “[a]n individual may be required to attend an examination only in the county wherein he resides or is employed or transacts his business in person, or at such other convenient place as is fixed by an order of court.” The rule goes on to explain that nonresidents can be compelled to attend only in the state/county where they are served, within 40 miles of that location, or at such other convenient place fixed by the court. Season-Sash Mfg. Co. v. Pancake, 421 N.E.2d 652 (Ind. Ct. App. 1981) (holding that trial court should have quashed subpoena to take the deposition of a Kentucky resident vice-president/general manager in Indiana).

What should the witness bring to the deposition?

Typically, fact witnesses need to bring nothing to the deposition. Corporate representatives, by contrast, may need to review items during the course of their examination. Keep in mind that any items a witness brings are fair game, and the plaintiffs’ counsel may ask to review them. Occasionally, notices of deposition will be accompanied by a request for documents to be produced at the deposition. Under Trial Rule 30(B)(5) and also FRCP 30(b)(2), such requests on a party are treated as requests for production and have to comply with Trial Rule 34 (FRCP 34). In other words, a plaintiff cannot circumvent the time periods associated with a request for production by trying to compel a defendant to bring documents to the deposition.

Who can sit in?

As an initial matter, the exclusionary rule applicable to trial testimony is not automatically applied to exclude nonwitnesses from a deposition. With very rare exceptions, courts are hesitant to exclude the parties to the action from attending depositions. As a result, the plaintiff can attend the deposition of a company witness. Depending on the nature of the case, this could be very awkward and certainly should be a point raised with the witness during prep. Under no circumstances should the witness talk to the opposing lawyer or the plaintiff about the case, particularly “off the record.” Anything said “off the record” by the witness almost certainly will be put on the record as soon as the deposition starts.

Aside from the parties, other individuals typically have no right to attend a deposition; this is not an open proceeding such as trial. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33 (1984); Scollo v. Good Samaritan Hosp., 572 N.Y.S.2d 730 (N.Y. App. Div. 1991). Barring a good reason, individuals such as spouses, significant others or friends should be excused while the deposition is in progress.

Going straight to the top

Occasionally, a plaintiff may seek to depose the CEO of a corporate defendant. For smaller companies, this may make sense as the CEO likely has discoverable knowledge and played an active role in the conduct at issue. Of course, the plaintiff may simply be trying to harass the company by forcing it to produce an executive who has no knowledge of the underlying events. The general rule for apex depositions of this type is that unless the corporate officer has superior or unique personal knowledge about the issues in a case, less burdensome discovery procedures should be pursued before taking the official’s deposition. Patterson v. Avery Dennison Corp., 281 F.3d 676, 681 (7th Cir. 2002); Thomas v. International Bus. Machines, 48 F.3d 478, 482-84 (10th Cir. 1995).

Depositions of corporate representatives

The second broad category of depositions affecting employers comprises corporate representative or Rule 30(B)(6) depositions. In these depositions, the witness is “speaking for the corporation” and the testimony represents the knowledge of the corporation, not that of the individual deponent. 8A Wright, Miller & Marcus § 2103, at 36-37; Resolution Trust Corp. v. Southern Union Co., 985 F.2d 196, 197 (5th Cir. 1993).

Procedurally, both Indiana Trial Rule 30(B)(6) and federal FRCP 30(b)(6) depositions operate along similar lines: the plaintiff identifies the corporation as the deponent and designates (“describes” under the FRCP) with “reasonable particularity” the matters for examination. The corporate entity determines which individuals will be produced and on which topics the witness(es) shall testify. Alexander v. Federal Bur. of Investigation, 186 F.R.D. 137, 141 (D.D.C. 1998). Both the state and federal rules require the corporation to provide a witness who is knowledgeable, not just about what they know and the corporation knows, but about knowledge that is “available to the organization.” Trial Rule 30(B)(6); FRCP 30(b)(6). If the persons designated by the corporation lack sufficient knowledge of the matters set out in the notice, the corporation is obligated to prepare them so that they may give knowledgeable and binding answers for the corporation. Buycks-Roberson v. Citibank Federal Sav. Bank, 162 F.R.D. 338, 343 (N.D. Ill. 1995); S.E.C. v. Morelli, 143 F.R.D. 42, 45 (S.D.N.Y. 1992).

Courts may issue protective orders when corporations are asked to respond to overly broad or unfocused Rule 30(b)(6) notices. Tri-State Hosp. Supply Corp. v. U.S., 226 F.R.D. 118, 125 (D.D.C. 2005) (striking notice which listed several categories for examination and stated that the inquiry may extend beyond those enumerated topics). As such, several courts have stricken or granted protective orders with respect to overbroad notices. In re Indep. Serv. Org. Antitrust Litig., 168 F.R.D. 651, 654 (D. Kan. 1996); Lapenna v. Upjohn Co., 110 F.R.D. 15, 21 (E.D. Pa. 1986).

Conclusion

After the plaintiff’s deposition, the depositions of corporate witnesses may be the most significant event to take place the life of an employment-related lawsuit. Don’t be the sleepy lawyer. Instead, be proactive and take charge: proper evaluation of the nature of the deposition, as well as the facts and background of both the case and the witness, is essential to preparing for the deposition and ensuring that it goes smoothly.•

Mr. Murphy is a partner in the Indianapolis office of Barnes & Thornburg and chairs the DTCI Employment Law Section. The opinions expressed in this article are those of the author.