30(b)(6) Witness Preparation Strategiesb)(6)_Witness_Preparation... · Haltom & Doan Texarkana, TX [email protected] John Jerry Glas Deutsch Kerrigan, L.L.P. New Orleans, LA [email protected]

30(b)(6) Witness Preparation StrategiesWednesday, April 6, 2016

Presented By the IADC Business Litigation Committee, Drug, Device and Biotechnology Committee, Environmental

and Energy Law Committee, Product Liability Committee, and Trial Techniques and Tactics Committee

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Presenters

Darby V. Doan Haltom & Doan

Texarkana, TX

[email protected]

John Jerry Glas Deutsch Kerrigan, L.L.P.

New Orleans, LA

[email protected]

Jamie Hood Hood Law Firm, LLC

Charleston, SC

[email protected]

Alba Romano Riley, Hewitt, Witte & Romano P.C

Pittsburgh, PA

[email protected]

mailto:[email protected]




30(B)(6) Witness Preparation Strategies

Agenda

• Introduction

Rule 30(B)(6)

Fed.R.Civ.P. 30(b)(6)

(6) Notice or Subpoena Directed to an Organization. In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe 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 testify on its behalf; and it may set out the matters on which each person designated will testify. A subpoena must advise a nonparty organization of its duty to make this designation. The persons designated must testify about information known or reasonably available to the organization. This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules.

History & Purpose Of Rule• Previously, practice of “bandying”

• Prevents stream of proffered witnesses with lack of sufficient knowledge about relevant topics

• Serves unique function in allowing a specialized form of deposition

• Imposes burdens on both the discovering party and the designating party

• Party seeking discovery must describe the matters with reasonable particularity

• Responding corporation or entity must produce one or more witnesses who can testify about the corporation's knowledge of the noticed topics

Agenda

• Introduction

• Chisel Away At The Notice

Designing & Responding To The Notice

James B. Hood, Esq.

Hood Law Firm, LLC

Charleston, South Carolina

“Reasonable Particularity” Means…

“A level of detail that shows aconscientious effort to focus on discretesubject areas that are substantively andtemporally relevant to the claims atissue.”

Prokosch v. Catalina Lighting, Inc., 193 F.R.D. 633, 639 (D. Minn. 2000).

“Reasonable Particularity” Means…

“Painstaking specificity”

See McBride v. Medicalodges, Inc., 250 F.R.D. 581, 584 (D. Kan. 2008).

(for at least one court)

“Reasonable Particularity” Does NOT Mean…

“Including But Not Limited To”

Tri-State Hosp. Supply Corp. v. United States, 226 F.R.D. 118, 125 (D. D.C. 2005).

• Listing categories, but stating that the inquirymay extend beyond them, defeats the verypurpose of having topics at all.

“Reasonable Particularity” Does NOT Mean…

“Any relevant matters”

Alexander v. FBI, 188 F.R.D. 111 (D. D.C. 1998).

• On its face, this phrase indicates a failure tocomply with the requirement of reasonablyparticularity.

Fed.R.Civ.P. Rule 26(c)

Motion For A Protective Order• May be filed by any person from whom

discovery is sought.• File in court of pending action or in court

for district where deposition will be taken.• Requires certification of good faith attempt

to resolve.• Court may issue protective orders for good

cause to protect from annoyance, embarrassment, oppression, or undue burden or expense.

Reed v. Nellcor Puritan Bennett & Mallinckrodt, 193 F.R.D. 689 (D. Kan. 2000).

“Where the defendant cannotidentify the outer limits of the areasof inquiry noticed, the designation ofa 30(b)(6) witness is not feasible.”

“Reasonable Particularity” ULTIMATELY Means…

Fed.R.Civ.P. Rule 26(c)

Motion For A Protective Order• May be filed by any person from whom

discovery is sought.

• File in court of pending action or in court for district where deposition will be taken.

• Requires certification of good faith attempt to resolve Court may issue protective orders for good cause to protect from annoyance,embarrassment, oppression, or undue burden or expense.

Motion For A Protective Order

Number of topicsoNot likely to succeed.oCourts have sustained 30(b)(6)Notices for 55 topics, 47 topics,and 35 topics

Heartland Surgical Specialty Hosp. v. Midwest Division, Inc., No. 05-2164-MLB-DWD, 2007 WL 1054279, at *1 (D. Kan. Apr. 9, 2007); QBE Ins. Corp., 277 F.R.D. at 681; Banks v. Office of the Senate Sergeant-At-Arms, 222 F.R.D. 7, 18 (D. D.C. 2004).

Motion For A Protective Order

Heartland Surgical Specialty Hosp. v. Midwest Division, Inc., No. 05-2164-MLB-DWD, 2007 WL 1054279, at *1 (D. Kan. Apr. 9, 2007); QBE Ins. Corp., 277 F.R.D. at 681; Banks v. Office of the Senate Sergeant-At-Arms, 222 F.R.D. 7, 18 (D. D.C. 2004).

Scope of NoticeoFails to identify with reasonable particularity

Agenda

• Introduction


• Investigate & Inspect

Duty to Investigate

Alba Romano, Esq.

Riley Hewitt Witte & Romano, P.C.

Pittsburgh, PA

Duty To Investigate

Corporation has duty to gather reasonably

available information

Documents (even if voluminous)

Past Employees

Other Sources

Preparing With Documents


Corporation has duty to prepare the witness to testify

on matters not only known by the deponent, but also as to

those that should be reasonably known by the designating

party.






party.

An organization that no longer has a person with

knowledge on the designated topics is not relieved of the

duty to prepare a corporate witness designee.






party.




Witness speaks for the corporation and answers are

binding on the organization.






party.






Corporation appears vicariously through designee.






party.






Corporation appears vicariously through designee.

Notice for taking of deposition sent to all parties is

sufficient – subpoena is not necessary

Agenda

• Introduction



• Choose & Prepare Wisely

Selecting Your Deponent

Darby Doan, J.D., CPA

Haltom & Doan

Texarkana, TX

Eeny, meeny, miny, moe

Review 30(b)(6) Topics& Discuss With Client

The face & voice of the companyKnow the audience (judge/jury)

What you don’t know won’t hurt you…

Except during a 30(b)(6) Deposition !!!

Identify Candidates Most Knowledgeable About Topics

Be actively involved.Interview in person.Research thoroughly.

Identify Candidates Who Can LEARN About Topics !!!

Beyond Knowledge: Other Factors In Choosing Deponent

Testify clearly & accuratelyPrior experienceTimePersonality TraitsResearch thoroughly.

“Don’t Use A Lot When A Little Will Do”

Deciding Whether 30(b)(6) Topics Can Be Covered With One Witness

Pros Cons

Minimize Opponent’s Time


Pros Cons


Eliminate Contradiction


Pros Cons



More Economical


Pros Cons


Too Many Topics For One


More Economical

Preparing Your Deponent

Darby Doan, J.D., CPA

Haltom & Doan

Texarkana, TX

Knowledge Of 30(b)(6) Topics:

• Review all 30(b)(6) topics

• Review company documents

• Review prior depositions

• Review discovery responses and pleadings

• Interview co-workers/past employees on topics where gaps

“In Theory There Is No Difference Between Theory And Practice. In Practice There Is.”

Yogi Berra

Mock The Deposition

• Facts AND company positions, opinions, beliefs

• No personal opinions

• Cover every conceivable question

• Test witness memory

• Ask questions beyond the noticed topics

Practice Makes Perfect

• Show location in advance

• Practice with camera and microphone

• Show image on video screen

• Practice with exhibits likely to be used

• What NOT to do on camera

• If budget allows, professional coach

“You cannot climb the ladder of success dressed in the costume of failure.”

Zig Ziglar

Appearance

Don’t Forget Basic Luck

Listen to the question carefully

Understand the question or don’t answer

Consider the answer before giving it

Keep it short, answer only the question

Agenda

• Introduction




• Chisel Away At The Questions

Scope Still Unsettled (11-4-15)

California Found. for Indep. Living Centers v. Cty. of Sacramento, No. 212CV03056KJMGGH, 2015 WL 6744659, at *3 (E.D. Cal. Nov. 4, 2015)(citation omitted)

“The case law is unsettled whether witness testimony at a 30(b)(6) deposition is limited to the subject matter in the designation of the notice.” Detoy v. City and County of San Francisco, 196 F.R.D. 362, 366 (N.D.Cal.2000). Most courts have held that a deponent may testify to matters beyond the designated topics. Defense counsel may avoid prejudice by noting on the record that a represented witness's answer is not representative, but his or her answer only.”

Scope of Questioning – Not Limited

“The proper scope of the questioning of a Rule 30(b)(6) witness is not defined by the notice of deposition, but by Rule 26(b)(1) of the Federal Rules of Civil Procedure, unless a court otherwise directs.”

Crawford v. Franklin Credit Mgmt. Corp., 261 F.R.D. 34, 38 (S.D.N.Y. 2009) citing Employers Ins. Co. of Wausau v. Nationwide Mut. Fire Ins. Co., No. CV 2005–620(JFB)(MDD), 2006 WL 1120632, at *1 (E.D.N.Y. Apr. 26, 2006) (Go, Mag. J.).

Scope of Questioning – Not Limited

Detoy v. City and County of San Francisco, 196 F.R.D. 362, 366 (N.D.Cal.2000) (citing King v. Pratt & Whitney, a Div. of United Technologies Corp., 161 F.R.D. 475 (S.D.Fla.1995)).

In fact, a notice of deposition cannot be used to limit what is asked of the designated witness, but rather, it “constitute[s] the minimum, not the maximum, about which a deponent must be prepared to speak.”

Scope of Questioning – IS Limited

Paparelli v. Prudential Ins. Co. of Am., 108 F.R.D. 727, 730 (D. Mass. 1985)

“Accordingly, I rule that if a party opts to employ the procedures of Rule 30(b)(6), F.R.Civ.P., to depose the representative of a corporation, that party must confine the examination to the matters stated “with reasonable particularity” which are contained in the Notice of Deposition.”

Scope of Questioning – IS Limited

Paparelli v. Prudential Ins. Co. of Am., 108 F.R.D. 727, 731 (D. Mass. 1985), citing Federal Rule of Civil Procedure 30(d).

At any time during the taking of a deposition, on motion of a party ... and upon a showing that the examination is taken in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending or the court in the district where the deposition is being taken may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope or manner of taking the deposition as provided in Rule 26(c).(Emphasis supplied)

Answer Not Binding (If Limited)

Falchenberg v. New York State Dep't of Educ., 642 F. Supp. 2d 156, 164 (S.D.N.Y. 2008) aff'd,338 F. App'x 11 (2d Cir. 2009)(citation omitted).

Questions and answers exceeding the scope of the 30(b)(6) notice will not bind the corporation, but are merely treated as the answers of the individual deponent. As these courts noted, “if the [30(b)(6) ] deponent does not know the answer to questions outside the scope of the matters described in the notice, then that is the examining party's problem.”

Proper Objections (If Limited)


None of the reasons given by counsel for the defendant Westinghouse for instructing the witness not to answer fall within the category where an answer would cause some serious harm, i.e. the answer would reveal trade secrets, privileged material, or other confidential material. Counsel for the defendant's instructions, rather, were based on the fact that the subject matter of the questions went beyond the subject matter listed in the 30(b)(6) deposition. Accordingly, the instructions not to answer were improper and a violation of Rule 30(c), F.R.Civ.P.

Need To Seek A Protective Order


“Even in the case of a “proper” instruction not to answer, as defined by Judge Flannery, the party who instructs the witness not to answer should immediately seek a protective order. International Union Of Electrical, Radio And Machine Workers, AFL–CIO et al v. Westinghouse Electric Corporation, supra at 280, footnote 4.”

“Litigation is not a game, but rather is a search for the truth and an effort to obtain justice..”

Howard v. Offshore Liftboats, LLC, No. CIV.A. 13-4811, 2015 WL 965976, at *9 (E.D. La. Mar. 4, 2015) aff'd, No. CIV.A. 13-4811 C/W, 2015 WL 3796458 (E.D. La. June 18, 2015)(citing Sims v. ANR, 77 F.3d 846, 849 (5th Cir.1996); Hall v. Freese,735 F.2d 956, 96162 (5th Cir.1984); Bintliff v. U.S., 462 F.2d 403, 407 (5th Cir.1972).”

1. Improperly instructing not to answer

1. Improperly instructing not to answer2. Objecting without a valid basis.

“Accordingly, I am able to call upon some experience in this arena, sufficient at least to belie the suggestions offered by [the attorney] at the hearing on this motion that conduct such as he displayed in this case is common among federal litigators “in the heat of battle.” (Tr. at pp. 25, 27) While it may be common behavior for [the attorney], it is not, nor should it be, common or acceptable among members of the federal bar.”

Howard v. Offshore Liftboats, LLC, No. CIV.A. 13-4811, 2015 WL 965976, at *5 (E.D. La. Mar. 4, 2015) aff'd, No. CIV.A. 13-4811 C/W, 2015 WL 3796458 (E.D. La. June 18, 2015)

1. Improperly instructing not to answer2. Objecting without a valid basis.3. Interrupting & obstructing

“Let me object to the form of the question because it doesn't define who the passenger is. If the passenger is a licensed captain and merchant mariner.”

Howard v. Offshore Liftboats, LLC, No. CIV.A. 13-4811, 2015 WL 965976, at *6 (E.D. La. Mar. 4, 2015) aff'd, No. CIV.A. 13-4811 C/W, 2015 WL 3796458 (E.D. La. June 18, 2015).

1. Improperly instructing not to answer2. Objecting without a valid basis.3. Interrupting & obstructing4. Speaking objections

“I'm objecting because it's a document that is outside of his knowledge since he didn't prepare it and he's never seen it before today's date.”


1. Improperly instructing not to answer2. Objecting without a valid basis.3. Interrupting & obstructing4. Speaking objections5. Commenting

“Look, if you don't understand, maybe you shouldn't be working as a crane operator. Simple question, sir.”


1. Improperly instructing not to answer2. Objecting without a valid basis.3. Interrupting & obstructing4. Speaking objections5. Commenting 6. “Failing to treat deponent

like at trial”

“Rule 30(c)(1) provides that “[t]he examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence ....“ Fed.R.Civ.P. 30(c)(1). “During the taking of a deposition the witness has, in general, the same rights and privileges as would a witness testifying in court at a trial.”

Howard v. Offshore Liftboats, LLC, No. CIV.A. 13-4811, 2015 WL 965976, at *2 (E.D. La. Mar. 4, 2015) aff'd, No. CIV.A. 13-4811 C/W, 2015 WL 3796458 (E.D. La. June 18, 2015) (citing 8A Wright, Miller and Marcus, Federal Practice and Procedure § 2113 (2d ed.1994).

Agenda

• Introduction




• Chisel Away At The Questions

• Wrap-Up And Questions

30(B)(6) Witness Preparation Strategies

Questions for Presenters?

Darby V. Doan Haltom & Doan

Texarkana, TX

[email protected]

John Jerry Glas Deutsch Kerrigan, L.L.P.

New Orleans, LA

[email protected]

Jamie Hood Hood Law Firm, LLC

Charleston, SC

[email protected]

Alba Romano Riley, Hewitt, Witte & Romano P.C

Pittsburgh, PA

[email protected]





30(b)(6) Witness Preparation

Strategies

Wednesday, April 6, 2016

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