For The Defense, November 2012 - DRI Today

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Product Liability nating a former employee to testify—compensation, costs, expenses, the relationship with the former employer, and “pride in the product,” are just some. These issues must be addressed before a corporation can select a former employee to testify. Other Factors Consider several factors before deciding The last thing that you want is for a witness to lose his or her cool and to come across poorly during a deposition. which witness to select. Today, deposition preparation legal fees and expenses are significant concerns for in-house counsel. Selecting a witness with the “most knowledge” typically results in less preparation time, and therefore, less cost because the witness does not need educating about the product. On the other hand, selecting a witness who will testify based on “prepared knowledge” will require more deposition preparation sessions and result in more legal fees. Time, or a witness’ schedule, is another factor, as well as other resources that affect deposition preparation sessions—location of the witness, location of the product, and the location of the accident scene. For example, you may need to decide if you want to prepare a witness at an accident scene so that the witness can inspect it. All of these factors have to be balanced, however, against the most important factor of all: whether a witness will be an effective witness. Preparation “Before anything else, preparation is key.” —Alexander Graham Bell Preparing for a 30(b)(6) deposition is key. You must prepare two people: yourself and the witness. Educating Yourself Before counsel can adequately defend a witness—indeed, before counsel can 38 ■ For The Defense ■ November 2012 competently and diligently represent a client abiding by Model Rules of Professional Conduct 1.1 and 1.3—counsel must understand how the product works, was manufactured, was designed, and allegedly caused a plaintiff’s injury, as well as the warnings accompanying the product. Without this knowledge base, a lawyer defending a company witness will not be able to communicate with the witness effectively during the deposition preparation session or properly prepare the witness for the deposition. It is critical that counsel understand the product. Visiting a manufacturing facility offers an excellent opportunity for counsel to learn how a product was designed and manufactured. But when making a visit is not feasible, counsel needs to discuss the manufacturing, design, and warning processes, applicable regulatory framework, and distributor relationships with “business people” before beginning to prepare a witness for a deposition, before answering a complaint, and certainly before serving a discovery request. Counsel also needs to become educated on a product’s accident, recall, and litigation history to prepare a witness for questions on these topics. In essence, counsel has to “talk the talk” with a corporate designee witness. Educating a Witness A corporation has an obligation to educate a corporate witness so that the witness becomes knowledgeable about the topics in a deposition notice. King, 161 F.R.D. at 476. A corporation has an obligation to produce a knowledgeable witness because it controls who it designates. Id. This obligation stems from one of the purposes of the rule: to assist parties uncertain about whom has the relevant knowledge in the organization. Fed. R. Civ. P. 30(b)(6) advisory committee’s notes to 1970 amend. This obligation extends to all the topics contained in a deposition notice. Poole ex rel. Elliot 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.”). The witness must be prepared to testify not only on subjects about which he or she has personal knowledge, but also on subjects about which he or she may not have personal knowledge. This is the essence of a 30(b)(6) deposition. Buycks- Roberson v. Citibank Fed. Savings Bank, 162 F.R.D. 338, 343 (N.D. Ill. 1995). In products cases, many 30(b)(6) witnesses must be taught or educated about the manufacture, design, and warning selection of a product because companies generally divide manufacturing and design responsibilities for products among various employees. Start with the Relevant Facts The next question is, “What do I have to educate the witness about” Start with the most relevant facts in a case—facts about the accident or the injury. Make sure that a witness understands how the accident occurred, even if the witness will not be questioned about the accident or the injury. Context for a witness is important. He or she must understand how his or her testimony fits in the case. Next, discuss details about a company’s investigation of the accident with a witness, when the product was sold, and how distributors and contracts with distributors were involved. From there, probe the facts associated with how a product was manufactured and designed and how a company selected warnings. For certain types of product cases, other facts are highly relevant. For example, in workplace injury cases, a company’s knowledge of a product’s resale and retrofitting are important. In others, especially in pharmaceutical and medical device cases, a witness might need to understand a company’s relationship with overseas subsidiaries or affiliates, new drug applications, and warning labels contained in the Physician Desk Reference. While you can start with a deposition notice when educating a witness, do not stop there. The Witness with Knowledge One trap to avoid is thinking that you do not need to educate and to prepare a witness who has personal knowledge about a product’s manufacture and design as much as a witness who does not. While the former may not require as much preparation as a witness who lacks personal knowledge, you must still prepare and caution an already informed witness about the importance of a deposition. Commonly these “informed” witnesses will discount the need for time-
consuming preparation sessions because they believe that they will be able to anticipate every question that plaintiffs’ counsel will ask. This is dangerous. During preparation sessions, school these witnesses on the hazards associated with predicting or anticipating questions and answers and have them stick to the rules of depositions: listen to a question and answer that question only. Documents You must decide if you will show documents to a 30(b)(6) witness during the deposition preparation sessions. If so, will you show the witness documents produced in discovery, preexisting documents, or documents that you have created for purposes of the deposition, “cheat sheets” Each case, witness, and deposition is different, so an attorney must make the calls, knowing that an opponent can discover documents shown to a witness during deposition preparation. It almost goes without saying that counsel should not show privileged documents to a witness during deposition preparation sessions. Further, counsel should consider which documents to show a witness very selectively. A document may contain information that a plaintiff’s counsel does not know, or it may contain privileged communications embedded in an attachment. In such cases, explaining the document to the witness may serve a client’s interests and defense strategy better. However, if a counsel has documents that counsel will likely use during a trial, show them to a witness to ensure that usability. A “cheat sheet” is a document that contains certain facts about a case such as dates, times, events, a plaintiff’s injuries, and manufacturing and design aspects of the product. It is a deposition preparation tool that can facilitate a deposition preparation session, but similar to employee interviews (see below), it comes with its own dangers. At times “cheat sheets” are unavoidable because of the complexity of the facts, the breadth of the deposition topics, or the need for a witness to convey certain testimony. If “cheat sheets” are used, the sheet must contain only facts and not defense strategy because the documents are discoverable. Use cheat sheets to achieve the goal of a 30(b)(6) deposition, meaning use them to preserve testimony for use during a trial or an arbitration. Developing good deposition testimony is imperative, and if “cheat sheets” or other document aids are needed to accomplish this goal, then use them. But use them with an appropriate amount of caution. Interviews with Current or Former Employees One way around having to show a witness documents is to have a witness speak to current or former knowledgeable employees. This preparation method is not without potential pitfalls. First, the attorney- client privilege likely would not apply to a witness’ conversation with another employee. Therefore, counsel should be present during these conversations, even if by phone. Second, unlike documents, counsel cannot control what a company employee will reveal to a witness. A company employee can reveal information that even counsel might not know. It is important that the information that a witness learns is funneled through an attorney. Former Employees The obligation that Federal Rule of Civil Procedure 30(b)(6) imposes on a corporation requires it to produce, under certain circumstances, a former employee as a 30(b)(6) witness, or have a current employee speak to one or more former employees so that the current employee can testify about the information that the former employee possesses. A former employee often is the most logical choice for a corporate designee, especially if legacy documents are involved or a product was manufactured and designed years before an accident occurred. This is very common in workplace injury cases. For example, a press involved in an accident years after distribution may have been resold multiple times before the accident. And because many states do not have a product liability statute of repose, manufacturers remain at risk due to these types of lawsuits. However, a company cannot plead “lack of knowledge” or “unavailability of information” if a deponent can educate him- or herself by talking with former employees. In re Air Cargo Shipping Services Antitrust Litig., 2011 U.S. Dist. Lexis 154428, at *61 (E.D.N.Y Mar. 27, 2011). See Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416, 433 (5th Cir. 2006). The court in In re Air Cargo recognized that a corporation’s Federal Rule of Civil Procedure 30(b)(6) “duty requires the responding party to educate its designees ‘to the extent matters are reasonably available, whether from documents, past employees, or other sources.’” Id. (quoting Fleurimond v. New York University, No. 09-cv-3739, 2011 U.S. If the witnesswith the most knowledge, no matter his or her position, will not be an effective witness, then educate another corporate employee to testify. Dist. Lexis 83288, at *2–3 (E.D.N.Y. July 29, 2011)) (emphasis supplied). The court, upon application, ordered deposition witnesses to speak or to attempt to speak to former employees who had participated in the meetings or drafted e-mail communications that allegedly led to the alleged price- fixing scheme because the testifying witnesses did not participate in the meetings or draft the e-mails that led to the scheme. Id. at *64. Affiliate Corporations Federal Rule of Civil Procedure 30(b)(6) also can oblige a corporation preparing a 30(b) (6) witness to consult employees working for affiliated entities and to prepare the witness based on their knowledge. Sanofi-Aventis v. Sandoz, Inc., 272 F.R.D. 391 (D. N.J. 2011). In Sanofi-Aventis, a patent infringement matter involving the manufacture by defendant Sandoz of a generic drug to Sanofi- Aventis’ Ambien CR, Sanofi- Aventis sought 30(b)(6) deposition testimony on activities performed by Sandoz’s Slovenian pharmaceutical affiliate, Lek Pharmaceuticals, in the manufacture and drug application process for the generic drug. Id. at 392– 93. After analyzing the significant involvement that Lek had in the drug application process, the court focused on whether the For The Defense ■ November 2012 ■ 39
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