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 />
Because you do not want<br />
a witness’ pride to hinder a<br />
deposition’s success, do not<br />
hesitate to be firm… during<br />
deposition preparation.<br />
information that Lek possessed was “reasonably<br />
available” to Sandoz, the corporation<br />
named in a 30(b)(6) deposition notice.<br />
Id. at 394. Third Circuit courts have relied<br />
on the “control” standard of Federal Rule of<br />
Civil Procedure 34(a) for the production of<br />
documents to hold that corporations must<br />
have Federal Rule of Civil Procedure 30(b)<br />
(6) witnesses obtain information from related<br />
entities from whom they have “the<br />
legal right, authority or ability to obtain<br />
documents upon demand.” Id. at 394 (citation<br />
omitted). Similarly, Third Circuit<br />
cases have required corporations to educate<br />
their witnesses about a related entity<br />
when the corporation obtained documents<br />
from the related entity for business needs,<br />
which happened in Sanofi-Aventis. Id. Other<br />
circuit courts have required the responding<br />
party to educate its witnesses on information<br />
from related entities with “eight degrees<br />
of ownership separation.” S.C. Johnson<br />
& Son, Inc. v. Dial Corp., No. 08-CV-4696,<br />
2008 U.S. Dist. Lexis 76320, at *2 (N.D. Ill.<br />
Sept. 10, 2008). In the circuits that have<br />
addressed the issue, the courts have compelled<br />
the litigating corporation to educate<br />
its witness or witnesses on the conduct of<br />
its related entity when it “had either the legal<br />
or practical ability to obtain information<br />
from its corporate affiliate.” Sanofi-Aventis,<br />
272 F.R.D. at 395 (citations omitted). Most<br />
frequently in a traditional product liability<br />
lawsuit, a court would compel a manufacturer<br />
to educate its 30(b)(6) witnesses on<br />
the conduct of related entities if the related<br />
entity played a role in the manufacture, design,<br />
or warning selection of a product, or<br />
of any of its components. However, Federal<br />
Rule of Civil Procedure 30(b)(6) is not absolute<br />
as “[t]he availability of information<br />
in possession of a related company turns<br />
40 ■ <strong>For</strong> <strong>The</strong> <strong>Defense</strong> ■ <strong>November</strong> <strong>2012</strong><br />
on the facts of each case, in particular as<br />
they relate (sic) the ‘control’ standard of<br />
Rule 34(a).” Id.<br />
Mock Deposition<br />
No matter the size of a case, counsel should<br />
conduct a mock deposition. If counsel<br />
believes that a plaintiff’s counsel will ask<br />
certain questions, then ask them. If a plaintiff’s<br />
counsel will ask some potentially<br />
damaging questions, then ask them. Counsel<br />
needs to know ahead of time how a witness<br />
will respond to the critical questions<br />
that will be asked. If counsel does not like<br />
the response, tell a witness what is wrong<br />
with an answer’s phrasing, explain a better<br />
strategy to approach the question and<br />
to provide a response while crucially controlling<br />
his or her emotions, or, if needed,<br />
designate another witness. Moreover, you<br />
need to prepare your witness for questions<br />
beyond the scope of the deposition topics;<br />
therefore, it is important to educate the witness<br />
more generally about “the case” and<br />
about more than the manufacture, design,<br />
and warning selection associated with a<br />
product. Even if a deposition is limited in<br />
scope, you should conduct some form of a<br />
mock deposition to place a witness at ease.<br />
Sanctions<br />
Preparation is key partly because courts<br />
can impose sanctions against a corporate<br />
litigant that produces an unprepared Federal<br />
Rule of Civil Procedure 30(b)(6) witness.<br />
Baker v. St. Paul Travelers Ins. Co.,<br />
670 F.3d 119, 124 (1st Cir. <strong>2012</strong>) (“[b]e cause<br />
a corporation controls whom to designate<br />
for a Rule 30(b)(6) deposition,… the corporation<br />
should be subject to sanctions if<br />
it designates a witness who is not knowledgeable<br />
about the relevant facts.”). Courts<br />
have treated an unprepared witness as<br />
“constructive non appearance” under Federal<br />
Rule of Civil Procedure 37(d). Black<br />
Horse Lane Assoc., L.P. v. Dow Chem. Corp.,<br />
228 F.3d 275, 303 (3d Cir. 2000); Resolution<br />
Trust Corp. v. S. Union Co., 985 F.2d<br />
196, 197 (5th Cir. 1993). Under Federal<br />
Rule of Civil Procedure 37(d)(1)(A)(i), federal<br />
courts have the authority to sanction<br />
a corporation if its 30(b)(6) witness “fails,<br />
after being served with the proper notice,<br />
to appear for [the] deposition.” Fed. R. Civ.<br />
P. 37(d)(1)(A)(i). In Black Horse Lane, the<br />
plaintiff’s 30(b)(6) witness, who was also<br />
suing in his individual capacity, failed to<br />
responsively answer deposition questions<br />
over several days, claimed not to know that<br />
he was a 30(b)(6) witness, answered evasively,<br />
and claimed not to have knowledge<br />
about the most relevant documents in the<br />
lawsuit that he signed. Black Horse Lane,<br />
228 F.3d at 303–304. See also Resolution<br />
Trust Corp., 985 F.2d at 197 (when asked<br />
whether he had knowledge about the item<br />
in the deposition notice, the witness replied<br />
“no”). <strong>The</strong> Third Circuit, relying heavily on<br />
several circuits’ case law, held that “when a<br />
witness is designated by a corporate party<br />
to speak on its behalf pursuant to Rule<br />
30(b)(6), ‘producing an unprepared witness<br />
is tantamount to a failure to appear’<br />
that is sanctionable under Rule 37(d).”<br />
Black Horse Lane, 228 F.3d at 304 (quoting<br />
United States v. Taylor, 166 F.R.D. 356, 363<br />
(M.D.N.C.), aff’d, 166 F.R.D. 367 (M.D.N.C.<br />
1996). <strong>The</strong>refore, it is imperative that counsel<br />
prepare a 30(b)(6) witness to testify. “I<br />
do not know” answers, especially repeatedly,<br />
are not acceptable under the Federal<br />
Rule of Civil Procedure 30(b)(6), and a<br />
deposing counsel can use them as evidence<br />
that the witness “failed to appear,” as well<br />
as grounds for sanctions.<br />
Deposition Issues—<strong>The</strong>y Always<br />
Come Up, So Be Prepared<br />
Counsel must be aware of the fine line between<br />
proper objections under the Federal<br />
Rules of Civil Procedure and improperly instructing<br />
a witness not to answer a plaintiff’s<br />
counsel’s questions. Federal Rule of<br />
Civil Procedure 30(c)(2) states that “[a] person<br />
may instruct a deponent not to answer<br />
only when necessary to preserve a privilege,<br />
to enforce a limitation ordered by the court,<br />
or to present a motion under Rule 30(d)(3).”<br />
If counsel anticipates a contentious deposition,<br />
which counsel will likely know well<br />
ahead of time, counsel should seriously consider<br />
seeking a protective order to limit the<br />
deposition topics. See Baker, 670 F.3d at 119<br />
(limiting the deposition to topics that the<br />
First Circuit outlined in the remand order).<br />
As discussed above, seek a magistrate’s involvement<br />
before a deposition and after<br />
conferring with an adversary when the adversary<br />
wants a deposition to cover inappropriately<br />
broad or vaguely described topics.<br />
Courts will impose sanctions on counsel<br />
who terminate a deposition or instruct