For The Defense, November 2012 - DRI Today

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