Corporate depositions (depos) are controlled by the Rules of the Court. The rules require that the outfit being deposed(corporation or otherwise) choose and prepare one or more persons to speak on its behalf. Moreover this person(s) must be able to address the issues spelled out by the party seeking the depo. Failure to produce such a witness may result in sanctions.
The statement of issues must be clear and crisp. The outfit to be deposed then has to produce one or more people to respond to these areas set forth. In addition the outfit called upon to respond is bound by whatever answers are given. This means the witness they choose must be well briefed as to the issues. However that person does not need to have first hand knowledge of the issues. Rather that person may have to be infused with the knowledge held by the outfit.
In Corporate Depositions Being Precise Is the Key
The courts are split on exactly how precise the statement of issues need be. Some courts have said that they need to be very precise. Other courts have been less strict.
In any event the person who is chosen must appear and answer questions not only about what the outfit knows but also its beliefs and what posture it is going to assume on certain issues. In addition the witness must also be ready to address the outfit’s take on writings and events. Call, or contact us for a free consult.
The Basics of the Notice
A Notice of Deposition for an outfit should begin by asking it to choose one or more people. That person(s) must consent to appear on its behalf. The outfit must fully prepare them to answer questions in regard the stated matters. This knowledge of the witness must include such info that is known or reasonably available to the outfit:
1. All facts leading up to and which include …
2. The outfit’s posture as to how and why the Plaintiff suffered the injury in question.
3. The fact basis for any defenses.
4. The fact basis to support what the outfit contends as to…
The Person With Most Knowledge Need Not Be Produced
The Rule does not require that the outfit provide the person with the most knowledge. Rather they must prepare a witness to provide all info that is known to the outfit. In that sense you should inquire as to whether the witness is speaking from first hand knowledge or from all of the facts known to the outfit. This may include info known to persons outside of the control group i.e. the core group that controls the outfit. The witness must be prepared to provide all of this info.
If the outfit has not filed a Motion for a Protective Order or objected to the deposition, then its failure to do so precludes later objection to the Notice.
Standard Questions in Corporate Depo
Some standard questions that should be asked as part of any such deposition:
– Everything that the witness did to gather knowledge about the issues.
– Are there any other people who have knowledge of these issues?
– What has been done to make sure that the witness is able to testify as to all of the info known to the outfit?
A Common Problem
A common dispute that arises during the course of these depos is whether or not the questions asked are within the scope of the notice. Most courts do not limit what can be asked in a depo. As a result even though the questions may go outside the scope of the Notice, that does not mean that it is okay to instruct the witness not to answer. If the questions go outside the scope of the stated areas then that means that the witness is no longer binding the outfit being deposed. However directing the witness not to answer because the subject matter goes beyond that listed in the Notice is not proper.
For more information about depositions see the pages on Wikipedia. In the legal resources section of this website there is a notice of deposition for a corporate designee.
The Know-Nothing Witness
It is not uncommon in these depos that the outfit produce a witness who knows little or nothing about the issues. There is no excuse for that. It is the job of the outfit to inform its witness about the issues so they can speak on its behalf. If this happens to you then your options are several. First of all you can ask the Court to treat the issues as decided adverse to the outfit. Secondly you can ask the Court to order that a witness with knowledge be produced. Thirdly you can use the lack of knowledge to bar future proof on behalf of the outfit on those issues.
Audio-Visual
It is generally a good idea to take the deposition by audio-visual if the trial will be with a jury. Beware that under Virginia Rule 4:7A the audio visual depo can only be edited with consent of all parties or by court order.
Depositions of Corporate Officers
When you’re dealing with a publicly-traded company and you want to take the deposition of a corporate officer, you need to be aware of Virginia Code § 8.01-420.4:1 which lays down certain criteria for taking such a deposition.
These types of depositions are sometimes referred to as “apex depositions” and the theory that protects corporate officers is sometimes called the “apex doctrine”. The doctrine itself is essentially a burden shifting mechanism. In other words, in general the party for whom discovery is sought has the burden of showing good cause when seeking a protective order. For apex officials, this doctrine shifts the burden to the party seeking the discovery. Under the Virginia statute, typically a corporate designee deposition has to be taken first. This only applies however to certain corporations. If the statute does not apply, then the apex doctrine may still apply. In particular you should be prepared to show that the corporate officer has knowledge of specific facts that are relevant to the proceeding.
Whether the statute applies or not, you should be prepared to offer certain accommodations i.e., agree to limit the time of the deposition, the place of the deposition, scope of the questioning, etc.
Call, or contact us for a free consult.
