During pretrial discovery in litigation, an organization must produce witnesses to testify on its behalf at depositions. Officers and managers often consider depositions to constitute an inconvenience to business operations, as witnesses must adjust their work schedules for several hours and perhaps entire workdays to answer questions under oath at a lawyer’s office.
Nonetheless, an organization should not overlook that its witnesses’ deposition testimony may affect the success of its positions in the litigation and its ability to obtain an economically feasible settlement.
There are two ways that an organization may be deposed. First, a party may notice the deposition naming a specific person within the organization in his or her official capacity. If the named person is an officer, director or managing agent, then his or her testimony will be binding upon the organization. Second, a deposition notice may be directed at the organization itself, rather than naming a specific person or representative.
This article focuses on such depositions of the organization, which are authorized under Rule 30(b)(6) of the Federal Rules of Civil Procedure and the R.I. Superior Court Rules of Civil Procedure.
Under Rule 30(b)(6), a party may notice the deposition of a public, private or governmental organization, whether it is a party to a lawsuit or a third-party with relevant information. The deposition notice must list with “reasonable particularity” the subject matters to be examined at the deposition. If the notice lists excessive topics or is unclear, the organization’s counsel should confer in good faith with the issuing attorney to attempt to resolve such concerns. If the attorneys disagree regarding the precise and proper scope of the deposition, the organization should seek a protective order from the court.