Who speaks for the organization at a deposition?

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. In response to the deposition notice, the organization must conduct an investigation into matters “known or reasonably available” to it. Based upon the investigation, the organization must designate one or more persons who will be able to testify regarding its collective knowledge about the subject matters listed in the notice. The decision concerning whom to designate belongs solely to the organization. Of course, the fewer witnesses the better in order to ensure consistency in the organization’s deposition testimony.
Often, the organization will rely on a director, officer or senior administrator to testify, but titles should not be the sole determinative consideration. The organization may also consider its in-house counsel as its witness, but it must analyze carefully the preservation of its attorney-client privilege and work-product protection.
There is no requirement that the organization’s designated witness must have first-hand knowledge or direct involvement in the subject matters of the deposition. An organization may face the dilemma that the individuals with personal knowledge are no longer within its control. Regardless, the organization will still have to prepare and produce a witness. It cannot decline to designate a witness simply because it no longer employs an individual with personal knowledge.
The organization has the option to designate a former employee as its witness, provided that the person is willing to testify for the former employer and the organization is comfortable with the person’s trustworthiness.
If the organization elects to designate multiple witnesses, each representative must understand and adhere to the precise scope of his or her testimony. When preparing each witness, legal counsel and risk managers must ensure that there is overall consistency in the key points of the organization’s testimony and that all reasonably foreseeable “red flags” are identified. At the deposition, the examining attorney will seize upon the opportunity to create inconsistencies in the record and expand the scope of questioning if unprepared witnesses stray beyond the scope of their designated subject matters, volunteer too much information or contradict one another.
At the deposition, the organization’s counsel may instruct the witness not to answer typically only when the question invades a privilege or violates a court order, so it is often difficult to undo the harm caused by the witness who is simply saying too much.
If an organization’s designated witness is unable to provide responsive information at the deposition and simply responds with “I don’t know” answers, courts often deem such action to constitute a failure to appear subject to sanctions, such as the retaking of the deposition at the organization’s expense with a different witness or the preclusion of evidence in the proceedings. The witness may testify that, based upon a proper investigation, the organization has no information or “institutional memory” with respect to a topic, but such an answer may limit or preclude the ability to present claims and defenses going forward.
A flustered witness who steers off course at the deposition could tie the organization’s hands going forward in the litigation. If the organization takes the appropriate time to designate and prepare a witness, the greater the likelihood that its story will be told properly in the litigation. •


Steven M. Richard is with Nixon Peabody LLP in Providence and is a member of the firm’s commercial-litigation practice.

No posts to display