For The Defense, November 2012 - DRI Today

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Product Liability Once the notice lands on your desk, immediately consult with your client to determine whether it has a witness or witnesses who can testify on the topics. 469 F.3d 416, 434 N. 20 (5th Cir. 2006). The potential trial implications of a corporate witness’ testimony require counsel to understand his or her client’s product, carefully examine the deposition notice topics, help identify the proper corporate designee or designees to testify, and thoroughly prepare designees to testify on the notice topics, among others. It is preparation, probably above all else, that ensures a successful 30(b)(6) deposition. The Deposition Notice The starting point is the deposition notice. Federal Rule of Civil Procedure 30(b) (6) deposition notices are different from fact- witness deposition notices and must be treated that way. The deposition topics must be examined carefully to determine whether a client can even produce a witness with knowledge to testify on the listed topics. Counsel must not misinterpret the threshold question. The question is not whether counsel understands the scope of the deposition topics, but rather whether a client’s designee understands what he or she will testify about. You must object to descriptions that are vague, ambiguous, and extremely broad, in writing, and well in advance of a deposition. Vagueness is always a concern. When objecting, inform a plaintiff’s counsel that your client will produce a witness to testify based on the client’s understanding of the deposition topics. Timing is key. Once the notice lands on your desk, immediately consult with your client to determine whether it has a witness or witnesses who can testify on the topics. In product cases, it often takes counsel and a client considerable time to identify the 36 ■ For The Defense ■ November 2012 correct corporate designee or designees to testify. There is often a long delay between receiving the deposition notice and identifying a witness, who then needs to read the notice to ensure that he or she has the knowledge to testify. Do not wait until two weeks before a deposition to locate a witness because that leaves very little time either to object to the notice or to prepare the witness. Likewise, you cannot assume that your client can produce a witness at all, or only one witness on each of the topics. Multiple witnesses may be involved, including former employees, which may take your client even longer to identify. If you plan to object to the scope of the topics, and there are few occasions when you would not, you should object soon after receiving the notice to allow you and your adversary significant time to discuss your objections. If you cannot resolve your differences, your adversary may file a motion to compel the deposition, or you may be forced to file a motion for a protective order. Certain topics may be so excessively broad or so vague that the scope will have to be refined for your client before the client can identify the proper witness to testify. Court intervention may be required. During the Federal Rule of Civil Procedure 16 conference, ask the magistrate judge how the court handles deposition disputes in case one occurs. Courts have chastised counsel for improperly terminating a deposition rather than seeking court intervention to resolve deposition disputes. See American General Life Ins. Co. v. Billard, 2010 U.S. Dist. Lexis 114961, *20–22 (finding that counsel “improperly instructed [the witness] not to answer for reasons unrelated to asserted privilege, and without immediately seeking Court intervention pursuant to Rule 30(d)(3).”). This obviously presumes that the counsel have a poor relationship. One of the keys to limiting the scope of 30(b)(6) deposition topics successfully is to negotiate them in good faith and in advance with your adversary. Magistrates’ scheduling orders typically require counsel to meet and to confer before raising a discovery dispute. Although sometimes it is nearly impossible to establish a good working relationship with your adversary, when you and your adversary do have one, try to resolve scope and vagueness issues in a notice before a deposition begins. This should ensure that a deposition proceeds more smoothly for your witness. Counsel should not automatically assume that a 30(b)(6) deposition is the most appropriate discovery tool for a plaintiff’s attorney to use to discover information about the topics listed in a deposition notice. TV Interactive Data Corp. v. Sony Corp., C-10-475, 2012 U.S. Dist. Lexis 56861 (N.D. Cal. Apr. 23, 2012). In TV Interactive, a patent dispute case, the plaintiff, TV Interactive, sought the factual basis of the defendant’s, Funai, affirmative defenses and legal claims. Id. at *8–9. Using a 30(b) (6) deposition to question someone who was not a lawyer about the defendant’s legal positions troubled the court, especially in a patent dispute. Id. at *11 (quoting McCormick- Morgan, Inc. v. Teledyne Indus., Inc., 134 F.R.D. 275, 287 overruled on other grounds, 765 F. Supp. 611 (N.D. Cal. 1991)). The court ultimately held that contention interrogatories, rather than 30(b) (6) depositions, were more appropriate discovery tools for obtaining the factual bases for the defendant’s affirmative defenses. Id. Therefore, TV Interactive teaches that 30(b) (6) depositions require more exacting scrutiny than we probably give them. Witness Selection Choosing the correct corporate witness designee to testify is important because the witness is the face of a corporation, and the deposition testimony, which counsel will often videotape, will bind the corporation during a trial. Counsel will want to be sure that a witness designated to testify has knowledge of the deposition topics that not only satisfies the corporation’s obligation under the Federal Rule of Civil Procedure 30(b)(6), but also will deliver an excellent deposition and, in turn, make a good trial witness. Therefore, several issues must be examined before selecting a corporate designee. Previous Testimonial Experience The first question to ask is, “Has the witness testified before” If the answer is yes, the next question is, “Is that a good or a bad thing” The answer to that question depends on the witness. Some corporate designees are skilled deposition witnesses. They do not require significant hand- holding or preparation and can represent themselves and a corporation even against the
most skilled questioner. However, numerous deposition transcripts will exist for the serial deponent and offer a plaintiff’s attorney ample cross- examination material. So read these first after searching for them and before designating a witness. On the other hand, a first-time witness requires more preparation time, which means additional cost, a significant issue in today’s world. Jury Appeal Even though most cases settle, defending counsel should always consider a deponent’s potential to appeal to a jury. The analysis is no different from deciding whether to call a witness during a trial. If a plaintiff alleges warning defect claims, evaluate whether your client’s warning witness will communicate the reasons why the company chose to design the warning the way it did effectively. Similarly, can a company’s design engineer in a design- defect case involving complex engineering issues explain to a jury how the product was designed, what risks the company evaluated, rejected, and accepted, and how the company conducted feasibility and alternative- design studies If these witnesses are skilled communicators who can teach a jury about a product, designate them as 30(b)(6) witnesses. However, if not, work with a client’s in-house counsel to identify the witness or witnesses who can serve in the role. Temperament Similarly, you should evaluate a witness’ temperament, appearance, and likeability. You would never put certain employees on the witness stand for a variety of reasons. They are generally unlikeable, do not have jury appeal, and do not communicate well, among other things. Therefore, you should not designate them as 30(b)(6) witnesses. If a plaintiff’s counsel is aggressive, consider whether your client’s witness’ personality will handle or succumb to the aggressive tactics, always remembering that the witness potentially will testify before a jury. The last thing that you want is for a witness to lose his or her cool and to come across poorly during a deposition. Person with the Most Knowledge vs. Prepared Knowledge In a product liability action, the knee-jerk reaction in choosing a 30(b)(6) witness is to select the engineer involved in the manufacture, design, or warning of the product. While a natural reaction, counsel should first reread the deposition notice to make sure that it seeks testimony about the manufacture, design, and warning of the product that this witness can provide. It is important to note that the rule allows a corporate defendant to designate more than one witness to testify on the noticed topics. Fed. R. Civ. P. 30(b)(6) (“then designate one or more officers”); King, 161 F.R.D. at 476. Sometimes choosing multiple witnesses to testify on a product’s manufacturing or design history can work best. Next, will the witness with the most knowledge— the engineer—make the most effective witness As already mentioned, you want to pay attention to a witness’ temperament and potential to appeal to a jury. If the witness with the most knowledge, no matter his or her position, will not be an effective witness, then educate another corporate employee to testify. Or, for instance, have an engineer testify only on limited topics, limiting the damage that he or she might do because he or she cannot communicate what he or she knows effectively. Witness Involvement with a Product Another compelling consideration is the witness’ involvement, even if remote, with a product. Before selecting a witness, you should review the relevant documents thoroughly to determine whether the witness authored any of the “bad company documents.” The answer to this question may influence your witness selection decision. An author- turned- witness may be in a better position to explain a “bad” document than a witness who did not author the document. However, someone other than an author may have the ability to answer questions about the correspondence because he or she did not draft it and might feel less defensive about the contents, allowing the witness to testify more comfortably about it. Warning- defect cases are especially difficult. The potential witness with the most knowledge almost always is the engineer who designed the warning. Before producing this witness, every document, including electronically stored information, should be located and reviewed to determine whether an opponent can cross- examine the witness with damaging documents. Does an engineer have notes or diagrams that did not make it into the relevant project file Are they damaging Remember, a client will have to produce these documents if it relies on them to prepare for a deposition, assuming that the client did not already need to produce them in response to a plaintiff’s document request. The witness is the face of a corporation, and the deposition testimony, which counsel will often videotape, will bind the corporation during a trial. Similarly, does a potential witness have “product pride” All corporate witnesses will take a certain pride in their company’s product and believe that the company “did no wrong,” or they often believe that a plaintiff misused a product in an unforeseeable manner, maybe even recklessly, and disregarded the product’s warnings. This “pride” can become problematic when a witness fights with an opposing counsel during a deposition. Always admonish a witness during preparation that the goal of a deposition is not to win a case but just to get in the car at the end of the day without having torpedoed the case. Because you do not want a witness’ pride to hinder a deposition’s success, do not hesitate to be firm with the witness during deposition preparation. Current or Former Employee The rule requires a corporation to produce a witness with “information known or reasonably available to the organization.” Fed. R. Civ. P. 30(b)(6). That witness, at times, may be a former employee if the information that the former employee has is “reasonably available” to the corporation and a current employees does not possess the former employee’s knowledge base or can become educated sufficiently to testify. Certain issues are associated with desig- For The Defense ■ November 2012 ■ 37
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