The deposition or the subpoenaed testimony of a corporate representative is unique. It can bind both the witness and the company, but not always in every case.

If you are defending, you have some influence on how to control and shape the deposition. The party noticing the deposition or subpoena will not know who you will present as the spokesperson of the business organization. You get to select the individual or individuals, and the selection may be critical. You also control the timing of the disclosure of the identity of the representative(s). As will be seen, this could be to your advantage.

Federal Rule of Civil Procedure 30(b)(6) mandates a meet-and-confer obligation. Most state court rules do not mandate a meet-and-confer obligation, but you are remiss if you do not take advantage of the opportunity.

Consider the advantages of having the conversation, although you may not want to disclose everything immediately to your opponent:

• To make sure the topics for inquiry are clear and not ambiguous.
• Discuss timing, location and number of corporate representatives, and overlapping fact witnesses.
• Court rules generally require the parties to minimize burden and you can exhaust claims of burden which can interrupt or delay the testimony.
• Eliminate or minimize protective order issues, or motions to quash subpoenas.

If defending, consider the effect of this discussion on case management. How early in the case can the parties really decide on the pertinent issues for examination and the depth of preparation necessary to have a representative of the organization testify? Is this an issue to be addressed before the case management conference?

When deposing an organization under either the state or federal rules, the organization is required to identify a person who will be testifying as a designee for the organization. The rules do not say when such designation must be made, and sometimes the designation is withheld until the start of the deposition.

This raises the question of timing of the organization’s deposition. Ideally, the interrogator might exhaust the testimony of individuals known to have the information pertinent to the issues first, and then try to bind the organization to a certain set of facts. But an early deposition of the organization may provide a road map of whom to later depose to establish motive and to find additional documents or facts.

While the organization will be bound by its answers at the deposition, some courts may allow evidence to vary that testimony if the organization was not the best source of the information. On the other hand, testimony by the organization are admissions, so it is necessary to carefully prepare of the testifying designee.

Educating Your Designee

Under the Fed. R. Civ. Pro. 30(b)(6), the committee notes reference the need of the deponent to be properly educated by the organization as to the facts within its knowledge. Failure to fully educate the designee may result in repeating the deposition, counsel fees and other sanctions. Prior knowledge of the person testifying allows a deep dive investigation of the background of the person and may help assess credibility before the first question is asked at the deposition. In addition, the same person may ultimately be a fact witness that needs to be deposed, and the depositions could be efficiently conducted on the same day. But it may not be the best choice depending on the other possible designees.

Conduct Diligence on the Designee

Consider what your opposition can learn online and prepare your witness. Once the representatives are identified, prepare your examination like any other case and perform an online investigation. Preparation includes the witness’ online presence. Corporate witnesses can be particularly likely to publish thought leadership in their industries, tweet about news relevant to their industries, network online through professional social media like LinkedIn, and provide interviews or panel discussions that are captured on industry websites. Even if defending the deposition, consider what your opposition can learn online and prepare your witness.

Google search the witness and the company. Has the witness given statements to the media or published thought leadership on topics relevant to the litigation? Search industry sites where the witness is cited or referenced. You may hire a third-party investigator if the case warrants it.

Look at Facebook and LinkedIn. If the witness or the company has a LinkedIn or Facebook page, review what is publicly available. Is their posted information about their education, experience and job duties consistent?

Prepare your witness to field questions about their social media presence. If your witness blogged about a case, or best industry practices, test the witness through cross-examination. Does their company actually follow the witness’ social media advice? What is the reputation of the representative in the community? Prepare the witness for attacks on confidence or credibility.

Objecting to Defects in the Notice

When defending the deposition, you should carefully review the taking party’s notice to ensure it is in strict compliance with the applicable rules. The objection to the form of notice can be waived if not timely asserted. It is also helpful to object on the record if the objection is not cured before the testimony is taken.

Object if the notice requires production of a corporate representative with the “most” knowledge. The rules generally require only a person with “with knowledge” of designated topics, as to opposed to the witness with “the most knowledge.”

Object if the designated topics are not “reasonably particular” so you can prepare the witness adequately on the topics. Protect the record by making your objections as it could support an argument that the testimony should not be binding on the business entity being deposed.

The deponent named in the notice has the burden to ensure that the witness or witnesses the corporation designated are educated adequately to speak to the topics designated in the notice.  You may need to work extensively with the witness and have meetings with others in the organization to insure the representative has the requisite knowledge.

In the alternative, different people within the organization can testify to the different topics. Perhaps the best designee is no longer with the organization. No prohibition exists on appointing a third party as the designee, like a former officer.

The witness must be familiar with key documents and understand the corporation’s major claims or defenses in the case. The witness must understand that the answers under oath are basically admissions against the organization. The most obvious person or the most knowledgeable person may not be the proper person. Also, if one of the designees is impeached on an issue, it is good to have a second designee on a separate material issue.

The position of the organization may vary from the position of the individual as a deponent. The organization may not have the knowledge that the individual may have and has not been shared with the organization. To avoid confusion, there should be a clear line drawn between testimony as a corporate representative and testimony as an individual. The best way to draw that line is to have separate depositions and notices, even if on the same day.

In summary, successfully defending the deposition of the corporate representative suggests an enhanced understanding of the case, the rules and preparation of the witnesses.

Reprinted with permission from the July 17, 2023, issue of The Legal Intelligencer© 2023 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.