Defending Rule 30(b)(6) Corporate Depositions in Employment Litigation

Transcription

1 Presenting a live 90-minute webinar with interactive Q&A Defending Rule 30(b)(6) Corporate Depositions in Employment Litigation Best Practices for Responding to a Deposition Notice, Selecting and Preparing Witnesses WEDNESDAY, MAY 27, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Brian M. Brown, Shareholder, Thorndal Armstrong Delk Balkenbush & Eisinger, Reno, Nev. Allegra J. Lawrence-Hardy, Partner, Sutherland Asbill & Brennan, Atlanta, Ga. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 10.

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4 Brian M. Brown Thorndal Armstrong Delk Balkenbush & Eisinger

5 Introduction Litigants may discover information from a corporation by serving a notice which requires the corporation to designate a person or persons to testify in a deposition on specifically enumerated topics. FRCP 30(b)(6) 5

6 A party may... name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested.... [T]he organization so named shall designate on or more officers, directors, or managing agents or other persons who consent to testify on its behalf, and may set forth, each person designated, the matters on which the person will testify. The person so designated shall testify as to matters known are reasonably available to the organization.... 6

7 The Comments to FRCP 30(b)(6) State Three Reasons in Support of the Rule. Assist parties in determining whether a particular employee of a corporation is a managing agent. Prevent bandying. Limit the number of employees to be deposed. 7

8 Initial Issues to Evaluate Was the notice procedurally proper? Does the notice satisfy the rule requirements? Was service proper? Is adequate time provided to respond? 8

9 Items to Consider Designated topics Location of deposition Length of deposition Number of witnesses required to testify based upon identified topics Privileged information. i.e., attorney-client work product, trade secret, etc. 9

10 Evaluating the Decision to Serve Objections Identify all potential objections Identify any topics which the employer has no information Serving Objections Check jurisdictional rules on requirement of serving or filing objections FRCP 32(d)(1) requires service on parties Filing objections may not result in ruling 10

11 Procedural Defects If a defect exists is it real or technical? Cost of motion practice Goodwill with opposing counsel Is the Request Vague and Ambiguous? Are the designated topics very broad? A large number of documents is requested? Cost of gathering information Exceeds seven hours of deposition time per witness Solutions Meet and confer with opposing counsel Negotiate resolution of dispute Negotiate an amended notice Serve objections Move for protective order 11

12 Filing a Reciprocal 30(b)(6) Notice May Not Be Applicable in an Employment Law Context 30(b)(6) is only applicable to a party 12

13 Allegra J. Lawrence-Hardy, Esq. Defending Rule 30(b)(6) Corporate Depositions in Employment Litigation

14 SELECTING THE 30(B)(6) WITNESS(ES) 2015 Sutherland Asbill & Brennan LLP

15 Selecting the 30(b)(6) Witness(es) A witness with detailed knowledge of the subject matter noticed presents advantages over a witness with isolated knowledge. Witness must represent the knowledge of the corporation. Elan Microelectronics Corp. v. Pixcir Microelectronics Co. Ltd., 2013 U.S. Dist. LEXIS , 2013 WL (D. Nev. August 13, 2013). Starlight Internat l. Inc. v. Herlihy, 186 F.R.D. 626, 639 (D. Kan. 1999) Sutherland Asbill & Brennan LLP

16 Selecting the 30(b)(6) Witness(es) Designating a lawyer, or someone else privy to extensive privileged information, as 30(b)(6) witness can invite trouble. An attorney who serves as a Rule 30(b)(6) witness may not frustrate or impede the deposition under the banner of privilege. New Jersey v. Sprint Corp., JWL, 2010 WL , at *3 (D. Kan. Feb. 19, 2010). Local rules in some jurisdictions may preclude a lawyer from serving as the Rule 30(b)(6) witness for ethical reasons. See Natural Res. Def. Council, Inc. v. Cnty. of Dickson, Tenn., 3: , 2010 WL , (M.D. Tenn. Dec. 20, 2010)(local rules required lawyer to be necessary witness ) Sutherland Asbill & Brennan LLP

17 Selecting the 30(b)(6) Witness(es) Carefully consider whether to identify as a 30(b)(6) witness someone who has been or is likely to be separately noticed for a fact deposition. This witness may be subject to provide testimony in two separate depositions, each subject to the 7-hour rule. Sabre v. First Dominion Capital, LLC, 01CIV2145BSJHBP, 2001 WL , at *1 (S.D.N.Y. Dec. 12, 2001). Deposing counsel may abuse the opportunity and overreach Sutherland Asbill & Brennan LLP

18 Selecting the 30(b)(6) Witness(es) There are benefits to limiting the number of witnesses who will address multiple topics in response to 30(b)(6) notice. One designee may not be able to testify completely where the subject matter involves complex facts and numerous legal issues. McCormick-Morgan, Inc. v. Teledyne Indus., Inc., 134 F.R.D. 275, 286 (N.D. Cal. 1991). Multiple Rule 30(b)(6) designees count as one deposition for ten-deposition limit. I/P Engine, Inc. v. AOL, Inc., 283 F.R.D. 322, 324 (E.D. Va. 2012). Each designee may be deposed for up to seven hours. See Fed. R. Civ. Pro. 30(d)(1); Todd v. Precision Boilers, Inc., No. 07-cv , at *1 (W.D. La. Oct. 24, 2008). Exceptions to the seven-hour rule. In re Rembrandt Technologies, 2009 WL , at *14 (D. Colo. May 4, 2009); E.E.O.C. v. The Vail Corp., 2008 WL , at *3 (D. Colo. Dec. 3, 2008) Sutherland Asbill & Brennan LLP

19 Educating the witness Preparing the 30(b)(6) witness Witness cheat sheets 19

20 A 30(b)(6) witness is testifying as to the employer s knowledge on the identified subject areas Witness must know the facts/policies that are the subject of the notice Potential sanctions if witnesses produced do not have the requisite knowledge of the subject matter identified in the notice 20

21 Similarities Between Fact Witnesses and 30(b)(6) Witnesses Review key documents Review witness statements Differences Review policies Review applicable legal standards/regulations The Witness Must Present as Prepared and Knowledgeable 21

22 Cheat Sheets Keep in mind these notes are discoverable Detailed facts to refresh witness s recollection Assist witness with complex subject matter Assist witness with voluminous factual information Should you ask questions of your own witness during the deposition 22

23 PROBLEM AREAS 2015 Sutherland Asbill & Brennan LLP

24 Problem Areas There are appropriate actions to take when the questioner goes beyond the scope of the notice Sutherland Asbill & Brennan LLP

25 Problem Areas If the witness proves to be insufficiently knowledgeable about a subject area, there are solutions. The company has a duty to designate an additional designee who will be knowledgeable about the subject area. Kress v. Pricewaterhouse Coopers, LLP, 2:08-CV-0965 LKK AC, 2013 WL , at *2 (E.D. Cal. June 3, 2013). Producing an unprepared witness is tantamount to a failure to appear for the deposition. United States v. Taylor, 166 F.R.D. 356, 363 (M.D.N.C. 1996). If compelled by the court, sanctions may also be awarded to the party seeking the deposition. State Farm Mut. Auto. Ins. Co. v. New Horizont, Inc., 250 F.R.D. 203, (E.D. Pa. 2008) Sutherland Asbill & Brennan LLP

26 Problem Areas 26 If a witness provides inaccurate or incomplete information at the deposition, STAY CALM. There are remedies. In some cases, a court will require an extraordinary explanation before the company will be permitted to retreat from binding admissions in the testimony of its Rule 30(b)(6) designee. Estate of Scott W. Thompson v. Kawaski Heavy Indus., 291 F.R.D. 297, 309 (N.D. Iowa 2013). See also, Rainey v. American Forest & Paper Ass n, Inc., 26 F. Supp. 2d 82, 94 (D.D.C. 1998) (must establish that information was not known or accessible); Hyde v. Stanley Tools, 107 F. Supp. 2d 992, 993 (E.D. La. 2000) (inconsistent affidavit may be accepted if accompanied by reasonable explanation). Rule 30(b)(6) tesitmony not a judicial adminission absolutely binding on the party. State Farm Mut. Auto. Ins. Co. v. New Horizont, Inc., 250 F.R.D. 203, 212 (E.D. Pa. 2008) (quoting 8A Charles Alan Wright et al., Federal Practice and Procedure 2103 (Supp. 2007)) Sutherland Asbill & Brennan LLP