Taking and Defending Key Depositions in Employment and Wage and Hour Cases

Transcription

1 Taking and Defending Key Depositions in Employment and Wage and Hour Cases AMERICAN BAR ASSOCIATION SECTION OF LABOR AND EMPLOYMENT LAW FEDERAL LABOR STANDARDS LEGISLATION COMMITTEE MIDWINTER MEETING GRAND HYATT BAHA MAR ~ NASSAU, BAHAMAS FEBRUARY 21-23, 2018

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3 Why 30(b)(6)? 2 basic goals of a Rule 30(b)(6) deposition: Learn the Facts! Lock in Defendant! How do you go about accomplishing these goals? Facts Sources of Information Positions, subjective opinions or beliefs, interpretation of facts and events, claims and defenses U.S. v. Taylor, 166 F.R.D. 356 (M.D.N.C. 1996)( subjective beliefs and opinions interpretation of documents and events ); Coryn Group II, LLC v. O.C. Seacrets, Inc, 265 F.R.D. 235, 238 (D. Md. 2010) ( "To the extent information sought in a Rule 30(b)(6) deposition is relevant to the claims or defenses in the case and is known or reasonably available to the corporation, it must provide a corporate designee or multiple designees prepared to provide that information."); Krasney v. Nationwide Mut. Ins. Co., 2007 WL (D. Conn. Dec. 11, 2007)

4 Why 30(b)(6)? Understand an organization s general structure Learn the policies of an organization Tie to workplace investigations or some other corporate act that is part of the case Set up for trial commitment to reliance on policies Obtain documents Rules 30(b)(2)/30(b)(6) Systems / Electronic databases Searches performed by defendant Existence of specific documents Determine document retention policy Location of employees even former employees

5 Why 30(b)(6)? FLSA / Collective or Class Actions Take early in the case? Policies that justify collective or class treatment All paid the same way All subject to same training Management structure Lock down defenses Misclassification: elements to specific exemptions Good faith to liquidated damages and willfulness

6 Why 30(b)(6)? Framing the 30(b)(6) notice Are the claims and defenses a proper subject for a 30(b)(6) deposition notice? What does reasonable particularity mean? Nippo Corp./Int'l Bridge Corp. v. AMEC Earth & Envtl., Inc., 2009 BL , 3 (E.D. Pa. Dec. 11, 2009): The "reasonable particularity" requirement in Rule 30(b)(6), however, merely requires that the requesting party describe topics with enough specificity to enable the responding party to designate and prepare one or more deponents. The requirement does not limit the scope of discovery of relevant matters. Bizzaro v. First Am. Title Co., LLC, 2016 WL , at *3 (D. Utah May 19, 2016): While the court has an obligation to allow discovery of relevant and proportional information, it must also limit discovery in certain circumstances. See Fed. R. Civ. P. 26(b). With these guidelines in mind, the court turns to the specific topics in this case. Also identify the outer limits of the areas of inquiry notice Tomelleri v. Zazzale, Inc., 2014 WL (D. Kan. Dec. 12, 2014) ( painstaking specificity ).

7 Why 30(b)(6)? AVOID The allegations set forth in the Amended Complaint in the abovecaptioned action The allegations set forth in Defendant s Answer, Counterclaim and Third-Party Complaint in the above-captioned action The defenses asserted by Defendant in connection with the abovereferenced action The documents produced by Defendant in connection with the above-captioned action Including, but not limited to (See Federal Ins. Co. v. Delta Mechanical Contractors, LLC, 2013 U.S. Dist. LEXIS 47582, 2013 WL , at *4 (D.R.I. Apr. 2, 2013); RM Dean Farms v. Helena Chem. Co., 2012 U.S. Dist. LEXIS 5830, 2012 WL , at *1 (E.D. Ark. Jan. 19, 2012); Trs. of Bos. Univ. v. Everlight Elecs. Co., 2014 BL , 5 (D. Mass. Sept. 24, 2014))

8 Preparing for the 30(b)(6) Deposition What if your topics fail to provide reasonable particularity? An overbroad Rule 30(b)(6) notice subjects the noticed party to an impossible task. Id. To avoid liability, the noticed party must designate persons knowledgeable in the areas of inquiry listed in the notice. Id. Where the defendant cannot identify the outer limits of the areas of inquiry noticed, compliant designation is not feasible. Steil v. Humana Kansas City, Inc., 197 F.R.D. 442, 444 (D. Kan. 2000); see also Reed v. Bennett, 193 F.R.D. 689, 692 (D. Kan. 2000) The 30(b)(6) notice establishes the minimum about which the witness must be prepared to testify, not the maximum. Detoy v. City & County of San Francisco, 196 F.R.D. 362, (N.D. Cal. 2000). See also Eng-Hatcher v. Sprint Nextel Corp., No. 07-cv-7350, 2008 WL (S.D.N.Y. Aug. 28, 2008) Meet and confer "The purpose of the conference requirement is to promote a frank exchange between counsel to resolve issues by agreement or at least narrow and focus the matters in controversy before judicial resolution is sought. Nevada Power v. Monsanto, 151 F.R.D. 118, 120 (D. Nev. 1993) Defendants have an obligation to note objections and discuss objections. Connect objections to duty to designate and prepare witnesses Meet and confer in person/on the phone and memorialize agreement in writing

9 Objections Objecting to the 30(b)(6) Notice Review 30(b)(6) notice immediately and serve written objections Schedule a Meet and Confer on objections Motion for Protective Order Defense really bears burden to move for Protective Order The party seeking a protective order must demonstrate "'good cause' for the protection sought." Wrangen v. Pennsylvania Lumbermans Mut. Ins. Co., 593 F. Supp. 2d 1273, 1277 (S.D. Fla. 2008). 'Good cause' has been defined as a 'sound basis or legitimate need to take judicial action.' In re Alexander Grant & Co. Litig., 820 F.2d 352, 356 (11th Cir. 1987)). Failure to produce witness without moving for protective order can be sanctionable. Barten v. State Farm Mut. Auto. Ins. Co., 2014 WL , at *2 (D. Ariz. Jan. 31, 2014) Some courts local rules may provide for automatic stay (see Petersen v. DaimlerChrysler Corp., No. 06-cv-0108, 2007 WL , at *5 (D. Utah Aug. 17, 2007) (discovery automatically stayed under D. Utah Local Civil Rule 26-2))

10 Organization s Obligation to be Prepared Preparing the Organization s Deponent The duty to prepare a Rule 30(b)(6) designee "goes beyond matters personally known to that designee or to matters in which the designee was personally involved." Trs. of Bos. Univ. v. Everlight Elecs. Co., 2014 BL , 4 (D. Mass. Sept. 24, 2014) Advisory Committee Notes to Rule 30 indicate Rule 30(b)(6) was enacted to prevent bandying or putting up a series of individual witnesses without knowledge of the facts known by the organization Designee must also be prepared with all information reasonably available to the company on the topics specified in the deposition notice. Bd. Of Tr. of the Leland Stanford Junior Univ. v. Tyco Int l Ltd., 253 F.R.D. 524, 526 (C.D. Cal. 2008) "Although adequately preparing a Rule 30(b)(6) deposition can be burdensome, 'this is merely the result of the concomitant obligation from the privilege of being able to use the corporate form in order to conduct business.'" Great Am. Ins. Co. of New York v. Vegas Constr. Co., Inc., 251 F.R.D. 534, 540 (D. Nev. 2008) (quoting United States v. Taylor, 166 F.R.D. 356, 362 (M.D.N.C. 1996)); see also Calzaturficio S.C.A.R.P.A. S.P.A. v. Fabiano Shoe Co., Inc., 201 F.R.D. 33, 37 (D. Mass. 2001)

11 Organization s Obligation to be Prepared Deponent must use documents, past employees, and other resources in performing the required preparation. Trs. of Bos. Univ., 2014 BL , 4 Collect information Review documents (Wilson v. Lakner, 228 F.R.D. 524, 529 (D. Md. 2005) (be careful when using privileged documents to prepare a 30(b)(6) witness)) Interview current (and former) employees with personal knowledge (United States v. Magnesium Corp. of Am., 2006 WL , *4 (D. Utah 2006)) Remind the witness of the binding effect of his/her testimony Wilson, 228 F.R.D. 524: If witness does not know the answer to a particular question, organization may be precluded from introducing evidence on that topic in opposition to a summary judgment motion or at trial. See also QBE Ins. Corp. v. Jorda Enterprises, Inc., 277 F.R.D. 676, 690 (S.D. Fla. 2012). At a minimum, the testimony can be used for impeachment. Bello v. Vill. of Skokie, 151 F. Supp. 3d 849, 861 (N.D. Ill. 2015).

12 Organization s Obligation to be Prepared Selecting the Company Representative How many witnesses to designate? One witness versus multiple witnesses The individual with the most extensive knowledge vs. the better witness with more limited knowledge? Possible witness s experience testifying on behalf of organization? Current employee vs. former employee Witness s personal traits

13 Organization s Obligation to be Prepared In-House Counsel as the Company Representative Majority rule: designating in-house counsel as the company s Rule 30(b)(6) representative is not an automatic waiver of the attorney-client privilege. However, the privilege can be waived if: In-house counsel volunteers privileged information during the deposition. Motley v. Marathon Oil Co., 71 F.3d 1547 (10 th Cir. 1995). The company is relying on advice of counsel as a defense. Sometimes, the line between what is waived and what is privileged is blurry. Sony Computer Entertainment America Inc. v. Great American Insurance Co., 229 F.R.D. 632, 634 (N.D. Ca. 2005).

14 Organization s Obligation to be Prepared Preparing the Witness Beyond the Scope of the Notice Be mindful that whatever information a company representative reviews to prepare for the deposition is discoverable. Nutramax Laboratories Inc. v. Twin Laboratories, Inc., 183 F.R.D. 458, 469 (D. Md. 1998): witness should not review privileged information or documents The witness should not review documents the company does not want to highlight in the litigation. Consider keeping a segregated record of which documents were used to prepare the company s representative. Preparing Document for Counsel When would you, if ever, consider having the company representative prepare a handout for plaintiff s counsel? Should the attorney prepare documents for the plaintiff? When should you decline to prepare documents?

15 In the Deposition Is plaintiff s counsel restricted to the scope of the notice? Majority rule: Exam is limited only by bounds of relevance. Fed. Deposit Ins., Corp. v. Giancola, 2015 WL , at *2 (N.D. Ill. Sept. 18, 2015) Minority Rule: Notice limits scope of deposition. Paparelli v. Prudential Insurance Co., 108 F.R.D. 727, 730 (D. Mass. 1985) Are answers to questions beyond the scope of the notice binding on the company? No. EEOC v. Caesar s Entertainment, Inc., 237 F.R.D. 428, 432 (D. Nev. 2006) Yes. King v. Pratt and Whitney, 161 F.R.D. 475, 476 (S.D. Fla. 1995) (court referred to no special protections conferred by virtue of Rule 30(b)(6) notice, arguably indicating that if witness can answer questions, organization may be bound) Maybe. Detoy, 196 F.R.D. at : purports to adopt King, but also notes "[p]rior to trial, counsel may request from the trial judge jury instructions that such answers were merely the answers or opinions of individual fact witnesses, not admissions of the party.

16 In the Deposition Do you allow a company representative witness to answer questions beyond the scope? Mass Engineer Design, Inc. v. Ergotron, Inc., 2008 WL (E.D. Tex. Jan. 8, 2008) (sanctioning attorney for instructing a 30(b)(6) witness not to answer questions). How to preserve the record if questions go beyond the scope? Note on the record that the question exceeds the scope of the notice, That the answers are not intended to be the answers of the 30(b)(6) designee corporation and Therefore do not bind the corporation Should you have documents in front of the witness? Very useful in keeping deposition moving Not a way to avoid preparing If obvious that the designated representative is deficient, obligation is on the organization to find substitute witness. Celanese Corp. v. Clariant Corp., 2016 WL (N.D. Tex. July 28, 2016)

17 In the Deposition What to do if the witness takes a break, talks to his/her lawyer, and returns wanting to correct or supplement a previous response Defense perspective: This is to bind my client and not a memory test, we are taking breaks to get the record right. Plaintiff perspective: It depends on the question being asked and how the question is answered. Plaintiff s focus should be on getting the information and locking the organization in on its answers whether a break is needed for that to happen generally shouldn t be a concern worthy of argument.

18 Waiver of Privilege Defendant asserts good faith defense [I]f the employer shows to the satisfaction of the court that the act or omission giving rise to [the FLSA] action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of [the FLSA], an award of liquidated damages may be limited or avoided. 29 U.S.C To establish the requisite subjective good faith, an employer must show that it took active steps to ascertain the dictates of the FLSA and then act to comply with them. Barfield v. N.Y.C. Health & Hosps. Corp., 537 F.3d 132, 150 (2d Cir. 2008) (quoting Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132 (2d. Cir. 1999) Defendant may be found to have waived protection of privilege if (1) defendant claims defense of good faith, and (2) claim can only be scrutinized by examining communications between attorneys and clients. Scott v. Chipotle Mexican Grill, Inc., 67 F. Supp. 3d 607, (S.D.N.Y. 2014)

19 Waiver of Privilege Scope of Waiver Edwards v. KB Home, No. 3:11-CV-240, 2015 WL , *3 (S.D. Tex. July 18, 2015) (holding that defendant has not waived its privilege (or work product) as to prior overtime litigation or other attorney communications to the extent they are not probative on what decisionmakers were told about the lawfulness of the disputed decision) Henry v. Quicken Loans, Inc., 263 F.R.D. 458, 466 (E.D. Mich. 2008): [S]imply by asserting a claim of good faith as an affirmative defense does not imply reliance on counsel even where the party asserting the claim acknowledges seeking such advice--but only where the party puts the content of that advice behind its claim of good faith. Henry, 263 F.R.D. at 469: Together, [cases of U.S. v. Bilzerian, 926 F.2d 1285 (2d Cir. 1991); Chevron Corp. v. Pennzoil Co., 974 F.2d 1156 (9th Cir. 1992); In re Lott, 424 F.3d 446 (6th Cir. 2005)] stand for the principle that when a party asserts a defense of good faith or reasonableness, and affirmatively offers testimony that the party consulted with their attorney as factual support for the defense, and when counsel's advice in some way supports the defendant's good faith belief, the defendant has put his counsel's advice 'at issue' and thereby waives the attorney-client privilege on the narrow subject matter of those communications. McKee v. PetSmart, Inc., 71 F. Supp. 3d 439, (D. Del. 2014) (defendant has not waived the attorneyclient privilege by asserting a good faith affirmative defense because defendant has not relied on privileged communications or testimony in support of its defense)

20 Q&A