Portland Oregon Business Patent Trademark Copyright Personal Injury Litigation

A deposition under Federal Rules of Civil Procedure 30 (b) (6) requires an adverse organization to provide a  witness who will give up its information on the specified topics.

“FRCivP 30 (b) (6) Notice or Subpoena Directed to an Organization.
In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, 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. A subpoena must advise a nonparty organization of its duty to make this designation. The persons designated must testify about information known or reasonably available to the organization. …”

However, an adverse witness is motivated to not cooperate and to neither know nor remember anything specific. This makes the discovery process less efficient, more costly, and maybe incomplete.

To lessen the chance of stalling and delaying deposition answers (not that any witness would ever try to stall or delay), I have found it helpful to send a letter with the notice of deposition commenting on the company’s obligation to investigate and review the topics of a 30(b)(6) notice of deposition.

The following is an example letter to send after conferring with adverse counsel about the topics, and setting a convenient time. With the letter I include a one-page summary of the law. Sophisticated adverse counsel will understand that the letter is intended to be a concise way to persuade the Judge, if a discovery dispute breaks out.

[Letter to: Attorney for adverse party]

Re: [case name], US District Court No. ______

Dear Ms. ______:

We have discussed deposition scheduling a number of times. The deposition of XYZ Company is scheduled for _______ 200_ .

To clarify the topics I wish to cover, I will depose XYZ Company under FRCivP 30(b)(6) on these topics:

1. Safety standards used or referred to by XYZ Company that relate to _______. I expect that this will include [specific references]. In any event the witness will need to testify about sources XYZ Company refers to for safety standards. The witness will need to be familiar with the specific application of the relevant standards to [specifics of case].

2. As pertaining to [a relevant contract]: what XYZ Company understood in 200_ to be its obligations for [relevant performance] as to [relevant circumstances], [relevant place], [relevant communications with others], [relevant knowledge], and [relevant action].

3. Other information about the [relevant incident].

Please note that, under FRCivP 30(b)(6), XYZ Company has an obligation for the designated witness to investigate and prepare to testify on the designated topics. See enclosed quotation from Calzaturficio S.C.A.R.P.A. V. Fabiano Shoe Company, Inc., 201 F.R.D. 33 (D.Mass 2001), and cases cited therein.

As is my practice, a formal Notice of Deposition under FRCivP 30(b)(6) is also enclosed.

Yours truly,

E. J. Simmons

Encl

………………………………………….

The following quotation is from Calzaturficio S.C.A.R.P.A. V. Fabiano Shoe Company, Inc., 201 F.R.D. 33, 36:

Indeed, the law is well-established that a 30(b)(6) deponent does have an affirmative obligation to educate himself as to the matters regarding the corporation.

Rule 30(b)(6) explicitly requires [a company] to have persons testify on its behalf as to all matters known or reasonably available to it and, therefore, implicitly requires persons to review all matters known or reasonably available to it in preparation for the 30(b)(6) deposition. This interpretation is necessary in order to make the deposition a meaningful one and to prevent the “sandbagging” of an opponent by conducting a half-hearted inquiry before the deposition but a thorough and vigorous one before the trial. This would totally defeat the purpose of the discovery process…Preparing for a Rule 30(b)(6) deposition can be burdensome. However, this is merely the result of the concomitant obligation from the privilege of being able to use the corporate form in order to conduct business…[A company] does not fulfill its obligations at the Rule 30(b)(6) deposition by stating that it has no knowledge or position with respect to a set of facts or area of inquiry within its knowledge or reasonably available….

United States v. Taylor, 166 F.R.D. 356, 362 (M.D.N.C., 1996), aff’d 166 F.R.D. 367 (M.D.N.C., 1996). See also Poole ex rel. Elliott v. Textron, Inc., 192 F.R.D. 494, 504 (D. Md., 2000) (”Upon notification of a deposition, the corporation has an obligation to investigate and identify and if necessary prepare a designee for each listed subject area and produce that designee as noticed.”); Dravo Corp. v. Liberty Mut. Ins. Co., 164 F.R.D. 70, 75 (D. Neb., 1995) (citing Marker v. Union Fidelity Life Ins. Co., 125 F.R.D. 121, 126 (M.D.N.C., 1989)) (”If the persons designated by the corporation do not possess personal knowledge of the matters set out in the deposition notice, the corporation is obligated to prepare the designees so that they may give knowledgeable and binding answers for the corporation.”); Buycks-Roberson v. Citibank Fed. Savings Bank, 162 F.R.D. 338, 343 (N.D. Ill., 1995)(stating that the duty to present and prepare a Rule 30(b)(6) designee goes beyond matters personally known to that designee or to matters in which that designee was personally involved.); Securities and Exchange Commission v. Morelli, 143 F.R.D. 42, 45 (S.D.N.Y., 1992) (citing Mitsui & Co. (U.S.A.), Inc. v. Puerto Rico Water Resources Authority, 93 F.R.D. 62, 67 (D.P.R., 1981)) (”under Rule 30(b)(6), the deponent ‘must make a conscientious good-faith endeavor to designate the persons having knowledge of the matters sought by [the party noticing the deposition] and to prepare those persons in order that they can answer fully, completely, unevasively, the questions posed…as to the relevant subject matters.’”); ABA Civil Discovery Standards (Aug. 1999), § 19(f) (”Counsel for the [corporation] should prepare the designated witness to be able to provide meaningful information about any designated area(s) of inquiry.”).

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This example is based on questions and answers used to prepare a company president to testify. The case was a contract action. The contract terms were on the plaintiff’s website. Acceptance by the defendant was based on a click-through.

By going through this review and preparation process, the witness becomes familiar with the questions that lay the foundation for introduction of each business record exhibit.

________________________________________

Questions for [Company President]
And Expected Answers

When going over the questions and answers with the witness, explain:
These are questions I expect to ask and the answers I expect you will give, based on our prior conversations.  This is not a script.  In every answer, tell the truth even if it varies from what I expect.  Each time we go through this, please let me know if any expected answer is incorrect.

Q. What is your relationship to [plaintiff company]?
A. I am the owner and president.

Q. What business does [company] do?
A. We provide a web-based service of [describe the basic service offered]

Q. Please describe the website offer.
A. On our site, we offer [basic terms]

Q. How would a buyer review what to buy?
A. [Describe how the prospective buyer looks at what is offered]

Q. Please look at Exhibit 1 and identify it.
A. It is a printout of the home page of the company’s website.

Q. Is Exhibit 1 an accurate representation of the home page that defendant saw around December 200_ when first visiting your website?
A. Yes.

Attorney: I move to admit Exhibit 1.

[The witness is examined about the relevant pages of the website, to get to the page where the click-through agreement is accepted by the defendant.]

…

Q. How does a buyer get in touch with the seller to buy an [object]?
A. The buyer clicks on “Contact Seller”, as shown on Exhibit 5.

Q. What happens then?
A. The Buyer’s Agreement is displayed, Exhibit 6.  In the paragraph above the buttons, the agreement refers to the “Legal Notice”. The “Legal Notice” is an underlined hyperlink. The buyer must click on “I agree to all conditions” to proceed. When the buyer clicks on that button, the computer program displays an inquiry form, to gather information to be sent by e-mail to the seller. It is a fill-in the blanks form, for the buyer to identify itself.  The website sends an email to the seller and to our company, including a copy to me.

Q. Please examine Exhibit 7. Is Exhibit 7 an accurate representation of the Legal Notice that was on the website when [defendant] agreed to your terms and conditions?
Yes.

Q.Is Exhibit 7 the contract that the defendant entered into with your company?
A. Yes.

Attorney: I move to admit Exhibit 7 into evidence.
…

______________________________________

The witness is similarly made familiar with the questions and expected answers for the other areas of his testimony. For example, performance of the contract by the plaintiff, the contract price, the lack of payment by the defendant, and the elements of a quantum meruit claim as a precaution.

After two or three times through this review, the witness will be organized and confident in his testimony.

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Once I heard a trial lawyer making a speech. He recalled a time when he had to testify in a civil action. This lawyer was experienced, intelligent and motivated to testify clearly, completely and truthfully. But while he was testifying on direct examination, answering questions asked by his own lawyer, he could not tell for sure what facts his own lawyer wanted. “I had no idea where we were going.”

If an attorney-witness cannot read the examining attorney’s mind, imagine the difficulty facing the average witness. More nervousness, less familiarity with the elements.

A colleague of mine once was trying a case. The adverse party was being examined by the adverse attorney. The adverse attorney became visibly exasperated with his own witness for failing to give the desired answers. Of course, the witness had a common shortcoming, that is, lack of mental telepathy.

Presenting a guessing game is the wrong way for a witness to testify. You may wish to consider the most effective way to prepare a witness for direct examination.

The best method I know of is to write out, for each witness, each question to ask, and each expected answer, in the order for trial testimony.

The expected answers come from prior interviews with the witness. Preparing the question and answer memorandum forces the trial attorney to organize. You will decide which facts to introduce from which witness and in what order.

Moreover, you should write into this question and answer memorandum the exhibits to be introduced, and at what point from what witness. In a State court case, with no pre-admission of exhibits, the foundational questions can be organized and written into the memorandum. Potential objections are eliminated.

Some attorneys believe that this is too much work. I hope that all my opponents think this.

A few days before trial, when meeting with a witness, you will use the question and answer memorandum to go over the testimony. Inevitably, you discover weak spots, confusion over what you are asking, and the need to improve. After revision, you go over it again.

No witness will testify completely in accordance with your expectation. But your presentation will be much smoother and complete. Your witness will be nervous, but much less so since every question on direct will be a question the witness has heard before.

Since examples are useful, another post will provide an excerpt from a memorandum as used in actual testimony, with names changed to preserve confidentiality. (We won the prayer for relief.)

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In most depositions, the testimony is taken down by a stenographic court reporter. The court reporter then produces a transcript. Using the deposition transcript works well in support of a motion for summary judgment.

However, not all cases are resolved by summary judgment. For those cases not decided by motion, video depositions are better for settlement assessment and are much better for impeachment at trial.

Judges recognize why video depositions are better.

“… video depositions provide greater accuracy and trustworthiness than a stenographic deposition because the viewer can employ more of his senses in interpreting the information from the deposition.” Burlington City Board of Education v. U.S. Mineral Products Co., Inc., 115 F.R.D 188, 189 (Middle District of North Carolina 1987).

Independent videographers are available, but an independent videographer is not required. The attorney taking the deposition may also take the video. Juanita J. Ott v. The Stipe Law Firm, 169 F.R.D. 380 (Eastern District of Oklahoma 1996); Rice’s Toyota World, Inc. v. Southeast Toyota Distributors, 114 F.R.D. 647 (Middle District of North Carolina 1987).

In my office, we make a video of all depositions we take. The legal assistant runs the camcorder, while the court reporter takes down the traditional transcript. Later, we make digital video clips.

Federal Rules

F.R.Civ.P. 30(b)(2) allows video taping. The notice of deposition must state that video will be used to record the testimony. Note that F.R.Civ.P. 30(b)(4) requires certain statements on the record to be done at the beginning of each tape, and a statement to be made at the end of the tape. In my office, we use a checklist during the deposition to ensure that the F.R.Civ.P. requirements are met.

Hardware

The equipment is inexpensive. In a lawyer’s office, the camcorder’s audio quality is important. For about $250.00 you can buy a mini-DV camcorder, for example the Canon ZR900. For $20 you can buy a short tripod to sit the camcorder on the conference room table. With the camera near the witness, the built-in microphone will clearly record the witness testimony.

To make the video in the first place, the legal assistant just sets up the camcorder, points it at the witness, and presses the Record button. I do not recommend that you try to use separate microphones or special lighting. Trying too hard in this way increases the chances of an equipment problem. Relax, and let the camcorder do the work. Have plenty of tapes, label them, and keep feeding the tapes to the camcorder every hour as needed.

Software

After the deposition, the digital video from the camcorder is edited on a computer. A Firewire cable connects the camcorder to the computer. For a Windows computer, Sony Vegas or the free Windows Moviemaker is adequate to make clips. On a Mac, iMovie is more than adequate and easy to use.

At Trial

To introduce video deposition excerpts at trial, you must be prepared in advance. This is similar to using a written deposition transcript: you must know in advance which excerpts you will present. The practical procedure is to have, for each topic to introduce by video testimony, a clip. For example:

• Clip 1: Two minute excerpt: Defendant’s president admits liability.
• Clip 2: One minute excerpt: Defendant’s vice-president admits the amount of damages.

Then, all you have to do is play the clip at the appropriate time from the notebook computer using a projector or big screen TV. (Remember to provide computer speakers, so the jury can hear the witness.) Before you play the tape, you will let the Judge and adverse counsel know what you plan to introduce. The Judge will be given a transcript of what is on the clip. The other side may or may not object. If an objection is sustained, re-editing may be needed.

Showing a video clip has much more impact than reading from the transcript. You are not trying to compete with a movie studio in production quality. You only have to be better than your opponent’s boring reading from a transcript.

Conclusion

There are three purposes for depositions: discovery, settlement assessment and impeachment. For settlement assessment and impeachment, video recording of depositions is better. Currently available camcorders and software make video depositions an inexpensive and simple part of the discovery process.

If you want to try taking a video deposition using your staff, let my office know. We will send you a copy of the video deposition checklist, including what statements the court reporter must make while the tapes are recorded.

- E. J. Simmons

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Law related blogs and websites provide a valuable advantage. Electronic advance sheets may be necessary to read the changing caselaw, but the commentary provided by lawyers can improve your assessment of developments in the law.

Once you find a website with pertinent information, you could try to remember to keep checking for updates. But that is an inefficient waste of your time.

If you want an efficient way to keep up with the information published by interesting blogs (like this one), then you will be happy to learn how simple it is to use RSS. The video below (not prepared by this office, but recommended) is under 4 minutes. It explains what you need to know.

If I may recommend: use Google’s Reader to read what you subscribe to. You should have a Google gmail account anyway, as a backup to your office email and for easy transfer and back-up of files. So, when you sign in to Google mail, you might as well look at Google Reader to keep up.

For this website, some like to subscribe to Trial Tactics, others like to get updates from the RSS feed. To try out the RSS feed, just look at the top right of any page on this site, and click on the “subscribe” word or the adjoining icon. On the page that comes up, click on the box to choose Google or Yahoo or Bloglines as your reader, and then click on “Subscribe Now”.

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Cross-examination is easy because it is a conflict between the lawyer and the witness. It is easy to hold the factfinder’s interest. It is easy to force the witness to concede some points. If the cross-examiner is skilled, the testimony will result in memorable answers that help the case.

Direct examination often results in lost ground because of wasted opportunities.

A United States District Court Judge was recently complaining about the lack of trial experience among attorneys. He had been surprised to observe a specific illustration of the problem, more than once, during trials before him in his Court. The Judge had sustained an objection of “leading”. The hapless attorney trying to carry out direct examination did not know what to do next. That is, the attorney did not know how to ask a non-leading question.

Why such a fundamental lack of ability? The Judge’s theory was that lots of depositions are taken. Depositions are almost all cross-examination. Objections are not much of an issue, since there is no Judge to sustain an objection. So an attorney can practice for a long time, but have witness examination experience mostly in depositions. Then, in trial, the attorney does not know how to examine a witness on direct without leading questions.

The Judge’s comments were about fundamental competence. It seems to me that a more difficult problem is boredom. Can there be a more boring experience than hearing “What happened next?” and the witness drones on.

In a business trial, the boredom problem is worse than in a personal injury trial. This is why I try to use as much visual stimulation as possible. This leads to my First Rule of Direct Examination: The only purpose of a witness on direct examination is for foundation of and comments about an exhibit.

In another post I will comment on the best practice to prepare for direct examination. This witness preparation should follow use of the best method I know to validate the themes of the presentation. Neither method is used as much as should be.

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