For The Defense, November 2012 - DRI Today
For The Defense, November 2012 - DRI Today
For The Defense, November 2012 - DRI Today
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Product Liability<br />
nating a former employee to testify—compensation,<br />
costs, expenses, the relationship<br />
with the former employer, and “pride in<br />
the product,” are just some. <strong>The</strong>se issues<br />
must be addressed before a corporation can<br />
select a former employee to testify.<br />
Other Factors<br />
Consider several factors before deciding<br />
<strong>The</strong> last thing that you<br />
want is for a witness to<br />
lose his or her cool and<br />
to come across poorly<br />
during a deposition.<br />
which witness to select. <strong>Today</strong>, deposition<br />
preparation legal fees and expenses are significant<br />
concerns for in-house counsel. Selecting<br />
a witness with the “most knowledge”<br />
typically results in less preparation time,<br />
and therefore, less cost because the witness<br />
does not need educating about the product.<br />
On the other hand, selecting a witness who<br />
will testify based on “prepared knowledge”<br />
will require more deposition preparation<br />
sessions and result in more legal fees. Time,<br />
or a witness’ schedule, is another factor, as<br />
well as other resources that affect deposition<br />
preparation sessions—location of the<br />
witness, location of the product, and the location<br />
of the accident scene. <strong>For</strong> example,<br />
you may need to decide if you want to prepare<br />
a witness at an accident scene so that<br />
the witness can inspect it. All of these factors<br />
have to be balanced, however, against<br />
the most important factor of all: whether a<br />
witness will be an effective witness.<br />
Preparation<br />
“Before anything else, preparation is<br />
key.” —Alexander Graham Bell<br />
Preparing for a 30(b)(6) deposition is key.<br />
You must prepare two people: yourself and<br />
the witness.<br />
Educating Yourself<br />
Before counsel can adequately defend a<br />
witness—indeed, before counsel can<br />
38 ■ <strong>For</strong> <strong>The</strong> <strong>Defense</strong> ■ <strong>November</strong> <strong>2012</strong><br />
competently and diligently represent a<br />
client abiding by Model Rules of Professional<br />
Conduct 1.1 and 1.3—counsel must<br />
understand how the product works, was<br />
manufactured, was designed, and allegedly<br />
caused a plaintiff’s injury, as well<br />
as the warnings accompanying the product.<br />
Without this knowledge base, a lawyer<br />
defending a company witness will not<br />
be able to communicate with the witness<br />
effectively during the deposition preparation<br />
session or properly prepare the witness<br />
for the deposition.<br />
It is critical that counsel understand the<br />
product. Visiting a manufacturing facility<br />
offers an excellent opportunity for counsel<br />
to learn how a product was designed and<br />
manufactured. But when making a visit is<br />
not feasible, counsel needs to discuss the<br />
manufacturing, design, and warning processes,<br />
applicable regulatory framework,<br />
and distributor relationships with “business<br />
people” before beginning to prepare a<br />
witness for a deposition, before answering<br />
a complaint, and certainly before serving<br />
a discovery request. Counsel also needs to<br />
become educated on a product’s accident,<br />
recall, and litigation history to prepare a<br />
witness for questions on these topics. In<br />
essence, counsel has to “talk the talk” with<br />
a corporate designee witness.<br />
Educating a Witness<br />
A corporation has an obligation to educate<br />
a corporate witness so that the witness<br />
becomes knowledgeable about the topics in<br />
a deposition notice. King, 161 F.R.D. at 476.<br />
A corporation has an obligation to produce<br />
a knowledgeable witness because it controls<br />
who it designates. Id. This obligation<br />
stems from one of the purposes of the rule:<br />
to assist parties uncertain about whom has<br />
the relevant knowledge in the organization.<br />
Fed. R. Civ. P. 30(b)(6) advisory committee’s<br />
notes to 1970 amend. This obligation<br />
extends to all the topics contained in<br />
a deposition notice. Poole ex rel. Elliot v.<br />
Textron, Inc., 192 F.R.D. 494, 504 (D. Md.<br />
2000) (“Upon notification of a deposition,<br />
the corporation has an obligation to investigate<br />
and identify and if necessary prepare<br />
a designee for each listed subject area<br />
and produce that designee as noticed.”).<br />
<strong>The</strong> witness must be prepared to testify<br />
not only on subjects about which he or she<br />
has personal knowledge, but also on subjects<br />
about which he or she may not have<br />
personal knowledge. This is the essence<br />
of a 30(b)(6) deposition. Buycks- Roberson<br />
v. Citibank Fed. Savings Bank, 162 F.R.D.<br />
338, 343 (N.D. Ill. 1995). In products cases,<br />
many 30(b)(6) witnesses must be taught or<br />
educated about the manufacture, design,<br />
and warning selection of a product because<br />
companies generally divide manufacturing<br />
and design responsibilities for products<br />
among various employees.<br />
Start with the Relevant Facts<br />
<strong>The</strong> next question is, “What do I have to<br />
educate the witness about” Start with the<br />
most relevant facts in a case—facts about<br />
the accident or the injury. Make sure that<br />
a witness understands how the accident<br />
occurred, even if the witness will not be<br />
questioned about the accident or the injury.<br />
Context for a witness is important. He or<br />
she must understand how his or her testimony<br />
fits in the case. Next, discuss details<br />
about a company’s investigation of the accident<br />
with a witness, when the product was<br />
sold, and how distributors and contracts<br />
with distributors were involved. From<br />
there, probe the facts associated with how<br />
a product was manufactured and designed<br />
and how a company selected warnings. <strong>For</strong><br />
certain types of product cases, other facts<br />
are highly relevant. <strong>For</strong> example, in workplace<br />
injury cases, a company’s knowledge<br />
of a product’s resale and retrofitting are<br />
important. In others, especially in pharmaceutical<br />
and medical device cases, a witness<br />
might need to understand a company’s<br />
relationship with overseas subsidiaries or<br />
affiliates, new drug applications, and warning<br />
labels contained in the Physician Desk<br />
Reference. While you can start with a deposition<br />
notice when educating a witness, do<br />
not stop there.<br />
<strong>The</strong> Witness with Knowledge<br />
One trap to avoid is thinking that you do<br />
not need to educate and to prepare a witness<br />
who has personal knowledge about a<br />
product’s manufacture and design as much<br />
as a witness who does not. While the former<br />
may not require as much preparation as a<br />
witness who lacks personal knowledge, you<br />
must still prepare and caution an already<br />
informed witness about the importance of<br />
a deposition. Commonly these “informed”<br />
witnesses will discount the need for time-