30(b)(6) Deponents and Trial Testimony 3 ( )( ) p y in Coverage - - PowerPoint PPT Presentation

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30(b)(6) Deponents and Trial Testimony 3 ( )( ) p y in Coverage and Bad Faith Litigation

Preparing and Responding to Notices of Corporate Deposition

T d ’ f l f

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific THURS DAY, AUGUS T 15, 2013

Today’s faculty features:

Richard E. Dolder, Partner, Slappey & Sadd, Atlanta Alan P . Jacobus, Partner, Carroll, Burdick & McDonough, S an Francisco

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

d T i l T i i C d and Trial Testimony in Coverage and Bad Faith Litigation

Richard Dolder Alan Palmer Jacobus Slappey & Sadd, LLC Carroll, Burdick & McDonough LLP 352 Sandy Springs Circle 44 Montgomery Street, 4th Floor A l G i 30328 S F i C lif i 94104 Atlanta, Georgia 30328 San Francisco, California 94104 Telephone: 404-255-6677 Telephone: 415-989-5900

Presenter—Policyholder Side Presenter Policyholder Side

 Richard Dolder

Richard Dolder

6

Presenter—Insurer Side Presenter Insurer Side

 Alan Palmer Jacobus

Alan Palmer Jacobus

7

Introduction to the Topic Introduction to the Topic

 Corporate representative deposition (Fed. R.

Corporate representative deposition (Fed. R.

• Civ. P. 30 (b) (6))

 Insurance companies

p

 Corporate policyholders  Third parties

p

 Goals of deposition

 Obtain information  Prepare for dispositve motions, settlement, trial  Bind party

8

Why is This Topic Important? Why is This Topic Important?

 A 30 (b) (6) deposition is the opportunity to  A 30 (b) (6) deposition is the opportunity to

• btain the overall knowledge of a corporate

party party

 Failing to prepare to take or defend a 30 (b) (6)

deposition may irreparably harm a client’s case deposition may irreparably harm a client s case

 Often the 30 (b) (6) deposition plays a crucial

l i l role at trial

9

The Rule: Fed. R. Civ. P. 30 (b) (6) The Rule: Fed. R. Civ. P. 30 (b) (6)

Notice or Subpoena Directed to an Organization. In its p g notice or subpoena, a party may name as the deponent a public

• r private corporation, [etc.] and must describe with reasonable

particularity the matters for examination. The named p y

• rganization must then designate one or more officers, directors,
• r managing agents, or designate other persons who consent to

testify on its behalf; and it may set out the matters on which each y y 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 p g y reasonably available to the organization. This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules.

10

Policies Behind the Rule: Notes of Advisory Committee on Rules—1970 Advisory Committee on Rules 1970 Amendment

The [rule] should be viewed as an added facility for discovery The [rule] should be viewed as an added facility for discovery,

• ne which may be advantageous to both sides as well as an

improvement in the deposition process. It will reduce the difficulties now encountered in determining prior to the taking difficulties now encountered in determining, prior to the taking

• f a deposition, whether a particular employee or agent is a

“managing agent.” ). [Citation omitted.] It will curb the “bandying” by which officers or managing agents of a bandying by which officers or managing agents of a corporation are deposed in turn but each disclaims knowledge of facts that are clearly known to persons in the organization and thereby to it [Citation omitted ] The provisions should also thereby to it. [Citation omitted.] The provisions should also assist organizations which find that an unnecessarily large number of their officers and agents are being deposed by a party ncertain of ho in the organization has kno ledge [ ] uncertain of who in the organization has knowledge. [. . . .]

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Key Characteristics of the Rule Key Characteristics of the Rule

 An entity’s deposition may be taken  An entity s deposition may be taken  Entity must designate a representative (the

“corporate designee”) corporate designee )

 Designee must testify as to information known

bl il bl h i

• r reasonably available to the entity

 Entity is to be protected against serial,

cumulative, or duplicative depositions

 Provides remedy for the “run-around”

y

12

Procedure and Mechanics: The Deposing Party

 The noticing party must “describe with reasonable

g p y particularity the matters for examination . . . .”

 With respect to properly and clearly noticed topics, the

responding entity must designate a person who can provide responding entity must designate a person who can provide information “known or reasonably available to the

• rganization.”

 No witness available on a topic?  Duces tecum demands

Th di i b b d b i

 The responding entity may not be bound by any testimony

not properly noticed

 Best practices: Provide list of topics early

Best practices: Provide list of topics early

13

Procedure and Mechanics—the Responding Entity

 Must designate a representative or representatives to

g p p provide information known or reasonably available to the entity

 Current versus former employee considerations  Current versus former employee considerations  Person from outside of the entity  Two depositions of same witness?—30 (b) (6) and percipient

F il d i ( d ) lifi d i

 Failure to designate (and prepare) a qualified witness

may result in a motion to compel and additional depositions

 Best practice is a letter response to designations  Objections—Fed. R. Civ. P. 32 (d)

P d l

 Procedural  Substantive?

14

Preparation for the Deposition: Deposing Party

 Carefully assess entire file including discovery  Carefully assess entire file, including discovery

received and pleadings

 Elements of cause of action  Elements of cause of action  Affirmative defenses

P d i i li b f i

 Prepare deposition outline before preparing

notice

 Ensure notice includes topics clearly covering

all areas of intended examination

15

Preparation for Deposition: Responding Entity

 Carefully examine notice  Carefully examine entire file  Choose witness carefully

 Deponent with personal knowledge is always best, if

possible—e.g. supervisor

 Experienced deponent  Experienced deponent

 Witness preparation—Required

 Meet with counsel  Review corporate documents  Interview others with knowledge of noticed topics

K h i id d

 Know the case, inside and out  Fix previous, damaging testimony

16

Preparing for Deposition: Responding Entity

 Personal knowledge of deponent not required,

Personal knowledge of deponent not required, but preferred, when possible

 Attempt to provide foundation (personal

p p (p knowledge) of facts testified to

 Especially important when entity wants witness to

if 30 (b) (6) i d i l i testify as 30 (b) (6) witness and trial witness

 At trial, evidentiary requirements (including

foundation and hearsay) apply See Williams Advanced foundation and hearsay) apply. See Williams Advanced Materials, Inc. v. Target Tech. Co., LLC, 2009 WL 3644357 (W.D.NY. Oct. 28, 2009)

17

Preparing for Deposition— Responding Party: Practice Pointers

 Prepare binders for witness with key documents for

p y each deposition topic arranged by tab

 Include any other key documents in binder  O l

t d t i bi d h d d

 Only put documents in binder you have produced

• r are willing to produce

 No witness notes in binder—blank flags usually ok

g y

 Create summaries, spreadsheets, etc. of complex

matters W k ith it i ti t f ili i th

 Work with witness in preparation to familiarize the

witness with the binder method

 Be prepared to produce a copy of the binder, if asked,

p p p py , , and you will be asked

18

Conduct of Deposition: Examination

 Confirm knowledge of designation for all topics

Confirm knowledge of designation for all topics

 Examining attorney should try to keep questions within

noticed topics (other than background, etc.) p ( g , )

 Counsel should be prepared to link particular questions

to particular noticed topics p p

 Although awkward, questions should be phrased as

“What did XYZ Corporation do on August 14?” as

• pposed to “What did you do on August 14?”

 Counsel should question witness on all important

documents

19

Conduct of Deposition: Defending Party

 Usual objections apply (e g form speculation  Usual objections apply (e.g. form, speculation,

asked-and-answered)

 Defending counsel should object to all questions  Defending counsel should object to all questions

• f substance that are not within any noticed

topic topic

 The proper procedure is to object, then instruct the

witness that the witness may provide any personal witness that the witness may provide any personal knowledge, but is not speaking on behalf of the entity e tity

20

Post-Deposition Considerations Post Deposition Considerations

 Read and sign procedure  Read and sign procedure  Motion to compel (noticing party)?

M i f i d (d f di )?

 Motion for protective order (defending party)?

21

Use of the 30 (b) (6) Deposition In Further Proceedings

 Admissions  Admissions  Making the most of “I don’t know . . .”

D i hibi

 Demonstrative exhibits  Impeachment

 Of deponent  Of other witnesses  Of corporate statements in documents

 Entity’s use of deposition at trial may be limited  Entity s use of deposition at trial may be limited

 Foundation and hearsay issues

22

Special Considerations in Insurance Coverage and Bad Faith Claims

 Underwriting versus claims handling functions  Underwriting versus claims handling functions

at insurance companies (two witnesses?)

 Familiarity with the policy and all available  Familiarity with the policy and all available

underwriting / claims materials F ili i i h ll l d

 Familiarity with all relevant procedures  Bad faith claim may create an implied waiver of

some privilege and work product protections

 Protection of other policyholders’ information

p y

23

Wrap-Up and Questions Wrap Up and Questions

 Prepare prepare prepare  Prepare, prepare, prepare

24