Preparing the Designated Corporate Representative for Deposition
August 17, 2016
In most commercial, IP, employment and product liability litigation, it is common for some deponents to be corporate representatives rather than individual fact witnesses. Federal Rule of Civil Procedure 30(b)(6) and its state analogues allow a party to name as the deponent a corporation, association or other entity. The Rule 30(b)(6) deposition can be used early in a case to determine the litigation landscape, and later serve as a wrap up to fill in gaps on substantive issues.
There are major differences between preparing an individual fact witness and a corporate representative for a deposition. First, the “named organization” rather than the adversary designates the deponent and knows in advance the subjects that will be covered. The named organization then has a statutory obligation to prepare its “designated person(s)” to testify regarding the listed “matters for examination.”
Defense counsel must assume responsibility for educating the designated witness about what needs to be investigated in order to testify, keeping in mind designated witnesses can be asked to testify regarding more than just facts. Counsel for the named entity must object in writing to the matters for examination if they are vague or otherwise objectionable. Objections should lead to a negotiation regarding the scope of matters for examination.
It’s prudent not to name the general counsel, or any lawyer, as a designated witness because that effectively waives protection of the attorney-client privilege and work product doctrine.
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