Corporate Depositions: Limiting In-House Counsel Depos and Selecting/Preparing Employees for 30(b)(6) Depos

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1 Kansas Missouri

2 Corporate Depositions: Limiting In-House Counsel Depos and Selecting/Preparing Employees for 30(b)(6) Depos February 15, 2017 Association of Corporate Counsel Mid-America Chapter

3 Preventing or limiting depositions of in-house attorneys Discovery rules (federal, Kansas, Missouri) Applicable ethics rules and privilege Motions to Quash and Protective Orders Impact of lawyer as business advisor vs. legal advisor or litigation counsel Tips for how to avoid being noticed for deposition entirely

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5 Discovery rules FRCP 26: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.... Information within this scope of discovery need not be admissible in evidence to be discoverable.

6 MO Rule 56: Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

7 K.S.A : Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to the subject matter involved in the action, whether it relates to any party's claim or defense. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.

8 Ethics Rules & Privilege Missouri Rule A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by Rule 4-1.6(b). KRPC 1.6

9 Organization as Client Kansas Rule 1.13 Missouri Rule A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.

10 Lawyer as Witness Kansas Rule 3.7 Missouri Rule (a) A lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness except where: (1) the testimony relates to an uncontested issue; (2) the testimony relates to the nature and value of legal services rendered in the case; or (3) disqualification of the lawyer would work substantial hardship on the client. (b) A lawyer may act as an advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.

11 Motions to Quash and Protective Orders Confer with Outside Counsel Motion to Quash/Motion for Protective Order Fed. R. Civ. P. 26 and 37 Understand scope of topics Geographic limitations Undue Burden Proprietary/Commercial Information Responding party has burden to prove objections

12 Potential Pitfalls Attorney-Client Communications Attorney Work Product It is important to distinguish between facts learned by a lawyer, a memorandum or document containing those facts prepared by the lawyer, and the lawyer's mental impressions of the facts. The facts are discoverable if relevant. The document prepared by the lawyer stating the facts is not discoverable absent a showing required by Federal Rule of Civil Procedure 26(b)(3). State Farm Mut. Auto. Ins. Co. v. New Horizon, Inc., 254 F.R.D. 227, 233 (E.D. Pa. 2008).

13 In-House Counsel: Legal Advisor v. Business Advisor Sony Elecs., Inc. v. Soundview Techs., Inc., 217 F.R.D. 104 (D. Conn. 2002) ( When general counsel is designated by a party as one of its Rule 30(b)(6) witnesses, the witness is required to testify about the business operations of the corporation to the extent his knowledgeable about the operations, irrespective of the fact that he also serves as legal advisor for the corporation. )

14 In-House Counsel: Legal Advisor v. Business Advisor But what happens when those roles intersect - when business decisions/actions are intertwined with otherwise privileged legal advice?

15 Tips for how to avoid being noticed for deposition entirely Select non-attorneys as 30(b)(6) representative Have personnel other than in-house counsel provide/sign discovery responses Assist outside counsel in preparing witness

16 Corporate Representative Depositions Overview Applicable civil procedure rules Handling the corporate representative deposition notice Objections and Motions for Protective Order Selecting the appropriate witness or witnesses Preparing the witness for deposition Use of a corporate representative deposition at trial

17 Applicable civil procedure rules FRCP 30(b)(6) Missouri 57.03(b)(4) K.S.A (b)(6)

18 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 the 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 subsection does not preclude a deposition by any other procedure allowed by the rules of civil procedure.

19 30(b)(6) Breakdown Party may name a corporation as deponent Requesting Party Burden: Describe with particularity matters for examination Producing Party Burden: Designate 1 or more persons to testify on its behalf Designee must testify as to information known or reasonably available to the organization

20 30(b)(6) Breakdown Designee s testimony represents knowledge of the corporation, not the individual deponent Corporation has duty to provide witness who is knowledgeable in order to provide binding answers on behalf of the corporation Starlight International, Inc. v. Herlihy, 186 F.R.D. 626, 638 (D. Kan. 1999).

21 Handling the corporate representative deposition notice Review the Deposition Topics Confer with Opposing Counsel on Topics Time for compliance Key: Strategy in selecting the witness and preparing the witness

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25 Objections and Motions for Protective Order Kansas/Missouri/Federal procedures Object to vague topics Object to disclosure of privileged information Person most knowledgeable

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28 Selecting the appropriate witness or witnesses Duty to prepare the witness or be sanctioned Possibly no witness with information Personal knowledge is not a requirement Be prepared to explain the basis for knowledge, what preparation was done Is there anyone more knowledgeable than you? How did you determine what to review/prepare? In-house counsel assist in overall strategy, witness selection for trial

29 Preparing the witness for deposition Again, duty to prepare the witness Educate witness on what will be asked per the topics Reptile Theory In-house counsel assist outside counsel with prior testimony of witnesses Litigation strategy/messaging Videotaped?

30 Depositions Outside the Scope of Notice Objections Redirect the question to the scope, advise beyond the scope and advise attorney that another witness can testify on that topic Question will be allowed Testimony beyond scope may not be binding on the company, binding on individual Potentially still binding on the company depending on the employee s management level and scope of employment

31 Use of a corporate representative deposition at trial Answers binding Can be used when? Can still make objections as to relevance (and resolve pending objections as to form of questions) Continue to prepare the witnesses for trial Videotape

32 Questions?

33 Kate B. McKinney Attorney at Law Practicing In: Litigation Insurance Defense Business Law

34 Lora M. Jennings Attorney at Law Practicing In: Employment Law Health Law Insurance Defense Business Litigation

35 Kate McKinney: Lora Jennings: or

36 Kansas Missouri