Fighting Against Discovery Abuse and Winning

March 21, 2007 on 12:08 pm | In Discovery, Services |

My experience has taught me that effective law and motion practice, both during and after the discovery period, has determined the success or failure in copyright and trademark actions, especially in the case of the 30(b)(6) deposition. The deposition of an entity, whether it is a public or private corporation, a partnership, association or governmental agency, is your best weapon against stonewalling in written discovery responses, because you can ask the entity-deponent questions directly about the elements of its case. And, as long as the question does not violate the attorney-client or work-product privileges, you are entitled to an answer.

On more than one occasion, when I have requested the bases of claims made against my client, the deponent’s response was, “I don’t know.” Whether that answer was the result of true ignorance or coaching by their counsel, “I don’t know” is an unacceptable response. I was not going to accept that answer, and neither should you. When opposing counsel attempts to thwart a 30(b)(6) deposition of an entity deponent by designating an “I don’t know” witness, here are a few important strategies to help you win the fight against discovery abuse.

It All Starts with a Notice of Deposition

While the rule itself—Fed. R. Civ. Pro. 30(b)(6)—gives little guidance as to what should go into the “notice of deposition,” you have the right to attach a comprehensive list of topics. The 30(b)(6) deposition permits the deposing party to name as a deponent, in either the party notice or in a non-party subpoena, a corporation, partnership, association or governmental agency, and to describe “with reasonable particularity the matters on which examination is requested.”

Meeting and conferring: More often than not, it is wise to call opposing counsel to determine availability for the deposition. (Some Local District Court Rules may require that you do so). It is advisable to fax or e-mail your tentative notice of deposition (e.g. near complete) to opposing counsel only with the final date omitted. Suggest a few dates in your cover letter or e-mail, and request a date for when a response should be received. If they fail to respond, then serve the notice of deposition with the date convenient to you.

Often, the location of the deposition is often another fight. Save your ammo. We recently argued that a defendant who filed a motion for injunctive relief should be deposed in the district where the motion was filed, and not in the out-of-state principal location of the defendant. Many times, though, it may not be worth the fight. As you may discover below, giving in on the location of the deposition now might provide leverage later, when it comes time to obtain the deposition of a non-complying entity deponent on a motion to compel.

When you serve your notice of deposition, you will attach a list of topics (the matters on which examination is requested). Make sure you list all of the matters on which you wish to examine the deponent. These need only be limited by general rules of relevance, which are pretty broad. (See Fed. R. Civ. Pro. 26 [i] (b)(1)[i]). Completeness and clarity will make the difference between getting what you want and being stymied.

Without a comprehensive list, you will be unable to box your entity deponent into an answer. If the examination does go into a topic that is not listed, the deponent is permitted to answer in his or her individual capacity rather than on behalf of the corporation. After all, the deponent, usually an officer, director or manager, speaks for the corporation. If you ask a question that was not on your list of topics, that individual could not be prepared to speak on behalf of the corporation. It seems fair.

The bottom line for the deponent is this: The time to argue about any lack of clarity or relevance in the deposition topics is before the deposition. If opposing counsel waits until the deposition to make objections on the record about clarity and whether or not the topics as stated in the notice are clear or proper, such objections are futile. The reason is simple. Unless the case goes to trial, such an objection will not see the light of day. If the case stands or falls on a discovery motion or dispositive motion, you’ll have to find another way to win the issue.

So, in order to prevent such questions from being asked of a 30(b)(6) designee and such answers from being made on behalf of the entity, the deponent must seek a protective order.

Here Comes a Motion for a Protective Order

Once you serve a 30(b)(6) notice of deposition, smart opposing counsel will immediately send you a meet-and-confer letter requesting that you narrow your list of topics or even change the location of the deposition. If you decline to narrow the list of topics, unless the deponent files a motion for a protective order under Fed. R. Civ. Pro. 26(c) or a motion to limit examination under Fed. R. Civ. Pro. 30(d), the designated witness is required to answer questions on the topics as listed on behalf of the deposed entity.

The motion for the protective order will rise or fall depending on whether the moving party can convince the court that there is no “good cause” basis for taking the discovery. Without filing and winning a motion for a protective order, the deponent had better be ready for a thorough examination. Counsel who expect to attend a deposition and object to the topics at that time are asking for a rude awakening at best, and sanctions at worst.

Duty to Designate and Prepare the Deponent

Although many try to dispute this obligation, there is no question that when an entity is identified as a deponent, as opposed to a particular individual, that entity must designate one or more individuals, and it must prepare that designee or designees to testify on all of the topics listed in the notice of deposition. It is not enough that the designee be prepared to testify to the extent of his or her personal knowledge.

According to Fed. R. Civ. Pro. 30(b)(6), upon receipt of a notice of deposition, the corporation, agency, or governmental organization is obligated to select and produce officers, directors, or any other person with knowledge to describe with particularity the matters examined. Once the corporation or association designates a person to testify on its behalf, the corporation appears vicariously through that person.

The designation is an affirmative act, and the deposing party should demand that the designation of witnesses to testify on particular topics be made in writing before the actual deposition. It is difficult to prepare to take a deposition when you do not know who will show up and testify on which topics. Make sure opposing counsel designates the names, titles, and topics of each witness before you begin to prepare for the deposition. Otherwise, you’ll be blindsided.

Often, corporations designate someone other than an officer, director, or manager. When they do, you should ask the deponent as part of your opening questions why he or she was designated. This is the time to ask the designee what his or her role is at the company, what he or she did to prepare, and to whom he or she spoke in preparation for deposition. More often than not, you will be met with objections, but keep moving. The objections could be something like “beyond the scope of the notice,” or “badgering,” but these are not sustainable objections. The designee will also often slip and state that he or she will only testify on all of the topics “to the best of my knowledge.”

It may require several questions to get to the basis of the designee’s knowledge before and after the designee was asked to serve by the corporation, and may, and often does, establish that the designee had no personal knowledge of a topic, but needed to talk to others to prepare. (Such designees are sometimes referred to as an “empty vessel” witness).

When you ask questions in this vein, you often uncover that the designee did not ask the right questions to adequately prepare to testify on the topics set forth in the notice of deposition. If that is the case, then the corporation has not designated a knowledgeable witness. The result may be a “do-over” of the 30(b)(6) deposition, which could win your case. After all, what corporate entity wants to have its deposition taken twice on the same topics?

This is worth repeating. Not only does the entity have to designate knowledgeable witnesses, but they also have a duty to prepare those witnesses. If the witness is not knowledgeable, he or she must become knowledgeable. Rule 30(b)(6) seeks to “ensure that such witnesses are adequately prepared to testify, that is, that each witness has reviewed all pertinent documents and is familiar with them.” Deposing counsel must hold deponents to this duty.

If you are confronted with a witness who does not know the answer to a question taken squarely from the topics contained in the notice of deposition, you should stop the deposition and ask the deponent, on the record, to immediately designate a new witness. If the deponent does not, you should know that the designation of a witness who lacks knowledge of the matters specified in the notice will entitle the noticing party, in most instances, the right to seek reimbursement of expenses incurred in taking the deposition, including reasonable attorneys’ fees.[v] Perhaps more importantly, it will give the deposing party the right to compel the deponent to designate a new witness and to take the 30(b)(6) all over again.

Know the duties incumbent upon the designating entity: First, Rule 30(b)(6) imposes on the deponent a “duty of being knowledgeable on the subject matter identified as the area of inquiry.” Second, the designating party has a duty to “prepare the witness to testify on matters not only known by the deponent, but those that should be reasonably known by the designating party.” This is because the purpose of a Rule 30(b)(6) deposition is to get answers on the subject matter described with “reasonable particularity” rather than answers “limited to what the deponent knows.” Id. Third, the deposed party has a duty to substitute an appropriate designee when it becomes apparent that the previous designee is unable to respond to certain relevant areas of inquiry.

If you are aware of these duties and spend some time at the beginning of the deposition determining whether the designee has fulfilled them, you will have obtained pretty good support that may help you win the fight against discovery abuse. The fact remains that most corporations do not understand these duties and their counsel fail to educate them. This may actually work to the deposing party’s advantage.

I am surprised how often counsel waits to “work things out” after the deposition has been taken, or even until after discovery is completed. Fighting over the relevancy of the topics listed in a notice of deposition is often futile. Counsel for the deponent should pick his or her fights carefully. If the deposing party knows of the deponent’s duties to designate and prepare witnesses well and successfully questions the deponent on whether these duties were fulfilled, the deposing party has the opportunity to learn who are the most knowledgeable persons, and on what topics, from the deposed entity.

If the entity deponent has failed to meet its obligations, you can still use the deposition to get as much information as you can from the current designee, and then file a motion to compel a further 30(b)(6) deposition. Discovery motions to compel further 30(b)(6) testimony are often worth bringing, especially when there has been blatant discovery abuse elsewhere in the case. Each motion is an opportunity to argue your case and educate the court. When you can show the court that the other side flaunts its discovery obligations and the record supports this, you’ll have the court on your side.

ENDNOTES:

Fed. R. Civ. Pro. 26(b)(1) states: “parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.”

U.S. v. Taylor, 166 F.R.D. 196, 201 (M.D. NC 1996)

U.S. v. Taylor, 166 F.R.D. 356, 361 (E.D. N.C. 1996)

Detoy v. San Francisco, 196 F.R.D. 362, 2000 U.S. Dist. Lexis 13013

See Fed. R. Civ. Pro. 26(g) and Schwarzer, Tashima & Wagstaffe, Federal Civil Procedure Before Trial. The Rutter Group, ¶11:1414.1.

What follows, under the district court’s opinion in Alexander v. Federal Bureau of Investigation, 186 F.R.D. 137, 141 (D. D.C. 1998), is a list of the several affirmative obligations and duties that have been consistently recognized in every court opinion in connection with a Rule 30(b)(6) deposition notice.