Preparing the Corp. Representative for Dep: Fed. Rule 30(b)(6) Can Make the Case

december 22, 2017

By: Heidi Agustsson, hagustsson@heylroyster.com

Company X’s driver is traveling southbound on a major highway when a car in front of him swerves to miss a stalled car which is partially blocking the right lane. Company X’s tractor and plaintiff’s car collide. Plaintiff files suit claiming the driver was traveling too fast for conditions. The depositions of the plaintiff and Company X’s driver are taken and liability is still at issue. Plaintiff’s counsel now turns his focus on the trucking company in an attempt to make Company X out to be the “bad guy” with deep pockets. To do so, plaintiff’s counsel sends Company X a Rule 30(b)(6) notice for its deposition. To counter the anticipated attack, Company X and its defense counsel must work together to identify the proper witness and educate and prepare him for his deposition.

Federal Rule of Civil Procedure 30(b)(6)

Rule 30(b)(6) of the Federal Rules of Civil Procedure requires a corporation to designate a witness who will provide testimony on its behalf. The testimony offered is in response to a deposition notice that must describe the categories of inquiry “with reasonable particularity.” Specifically, the rule provides:

In its notice or subpoena, a party may name as a deponent a public or private corporation, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. 

Although the Rule appears straightforward, the strategy of defending the corporate representative deposition can make or break a case. The testimony obtained during these depositions binds the company and can be used as leverage during mediations or as impeachment at trial. A good plaintiff’s attorney will use admissions made during a 30(b)(6) deposition of a corporate safety representative to prove his case. For instance, the plaintiff may attempt to demonstrate the driver was not properly trained, that the company’s general safety policies and procedures were lacking, that it cut corners to maximize profits as seen in its lack of methods for monitoring drivers and disciplining drivers after at fault events, and/or that the company was not in compliance with Federal Motor Carrier Safety Administration (FMCSA) regulations regarding service hours, vehicle inspections, maintenance, repair and reports of drug and/or alcohol testing. In addition to the strategic use of Rule 30(b)(6) depositions, some particularly aggressive plaintiff’s attorneys look to advance their case or attack the defense through sanctions. The Rule places an obligation on a corporation to produce a witness who is prepared to respond to the specific categories identified in the notice.

Control the Scope of the Rule 30(b)(6) Notice

To control the deposition, defense counsel must examine the Notice upon its receipt to ensure that it does not include overly broad or vague descriptions of the “matters for examination” listed in the Rule. Defense counsel must take steps to ensure the categories of inquiry are described with reasonable particularity so that the witnesses can be adequately prepared. To combat this, defense counsel should advise plaintiff’s counsel in writing of specific concerns and objections, demanding the notice be amended to narrow the scope of topics or clearly identify the topics of inquiry. If an amended notice is not produced, defense counsel should take further steps to protect their witness. Counsel should file a motion for a protective order or a formal response to the deposition notice, placing objections on the record. This will allow the court to make rulings before the deposition proceeds so that the witness can be properly prepared to testify. This further reduces the chance that the deposition will need to be terminated - so that legal disputes can be decided - then reconvened at a later time.

Select and Prepare the Right Corporate Representative Witness

The corporation must make a good faith effort to identify a knowledgeable witness for each identified topic of examination. This includes the duty to prepare the witness to testify about those issues personally known to him, as well as those that are known or reasonably should be known to the company. A corporate designee’s inability to answer questions may be considered a “non-appearance” for purposes of the Rule, with serious repercussions. If the corporation fails to present a prepared 30(b)(6) witness it can be subject to various sanctions, including barring of the company’s claims or defenses, barring of evidence on a topic, awarding costs to plaintiff’s counsel for fees incurred as a result of filing motions to enforce the deposition notice, or even entry of a default judgment against the company.

To defend against plaintiff’s counsel’s gamesmanship, trucking companies and their counsel must work together to prepare and formulate a strong defense strategy. The key to that strategy is determining who should be identified as a witness to testify in response to each topic listed. The witness designation could be a safety director, a CEO, a manager or even a former employee. However, consideration must be given to attorney-client privilege when a witness is selected. Furthermore, more than one witness can be designated to respond to the 30(b)(6) notice. Some attorneys have suggested that a 30(b)(6) deposition should be defended against “by committee” or by “hot tubbing” meaning several designated witnesses would appear in one room at one time and answer plaintiff’s counsel’s questions. See Solovy and Byman, Deposition by Committee, The National Law Journal, May 17, 2004.

Once the proper witness is identified, the preparation for the deposition begins. The witness will need to testify concerning his personal knowledge and the knowledge known or reasonably known to the company. This means that a corporate witness must be educated about the facts surrounding the trucking accident, including the location and date, as well as information about the investigation done after the accident, the injured or decedent’s name and personal information, what the weather conditions were at the time of the accident, and where the driver was going. The corporate witness should also be familiar with the company’s driver, his driving history, his training, what information his social media account contains, and the documents contained in the driver’s qualification file. Any problems in the DQ file should be identified well in advance of a deposition, and the strategy to address it must be discussed. It is also imperative that he understand the job description and duty of the driver and any other relevant positions within the company.

The corporate witness must review the company website to determine what promises are made to the public. In addition, he must be familiar with documentation relating to the tractor and trailer, which includes the specifics surrounding the ownership or lease of the equipment, the maintenance history, any downloads from the equipment after the accident, and the capabilities of the electronic data system in the tractor. Lastly, the witness must be knowledgeable about company policies and procedures, which include hiring, training, and retention. Also, depending on whether any revisions were made to company policies, a witness should be familiar with the latest version of those polices and understand why changes or modifications were made.

When 30(b)(6) witness preparation is complete, mock depositions are helpful to ensure the witness is ready to respond to challenging questions. Many times, these mock depositions are videotaped so the witness and defense counsel can review and refine the witness’ answers and appearance. In response to plaintiff’s counsel’s rapid fire, a corporate witness must remember that he has the ability to control the story that is being told. In doing so, he does not have to adopt the premise of a question based on some vague or incomplete hypothetical. Likewise, he does not need to accept generalities such as “a trucking company should never do x” or “a trucking company’s main goal is safety,” but rather explain specifically what his company does and demonstrate how it meets or exceeds the federal regulations and industry standards. Equally important, a witness must be ready to listen to defense counsel’s objections to questions that are outside of those topics identified in the notice.

Control the Scope of Questioning at the Deposition

If defense counsel does the work needed to limit and/or clarify the scope of the deposition before it proceeds, he must continue the defense of his client throughout the deposition to ensure those limits are maintained. This is done by placing proper, timely objections on the record and referring to the amended deposition notice, defendant’s written response/answer clearly setting forth the objections, and the court’s rulings limiting the categories of inquiry. Likewise, it is important to ensure that the door is not opened to topics outside of the scope of the amended notice by the corporate witness. This can be accomplished through adequate preparation of the witness, advising him of the defense strategy and demonstrating how his testimony will help to accomplish the strategy. The corporate representative should also be alerted about potential pitfalls, particularly if he hears plaintiff’s counsel begin asking objectionable lines of questioning.

In considering the strategy associated with a 30(b)(6) deposition, no one would dispute that it can be intimidating to even the most seasoned witness, but when the correct witness is identified and thoroughly prepared to testify about the identified topics, it can present the opportunity to demonstrate to a jury that the trucking company has complied with all federal regulations and has its focus on the safety of its employees as well as the community as a whole. This successful result can be accomplished when defense counsel and trucking companies work closely to ensure the proper witness has been educated concerning the knowledge the company possesses, understands the defense theme of the case and the role he plays in it and strategies have been developed to deal with problem areas, as well as ensure the trucking company’s values are demonstrated through its corporate representative’s testimony.