For The Defense, November 2012 - DRI Today

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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
their corporate designee not to answer questions unless the attorney does it consistent with the parameters of Federal Rule of Civil Procedure 30(c)(2). Harassment and an adversary’s bad-faith conduct do not justify repeated objections instructing a witness not to answer. American General Life Ins. Co. v. Billard, C10-1012, 2010 U.S. Dist. Lexis 114961(N.D. Ia. Oct. 28, 2010). In Billard, the 30(b)(6) deposition of a plaintiff insurance company’s designee was especially contentious, with a defendant counter- claimant’s counsel asking harassing, argumentative, irrelevant questions, often well beyond the scope of the notice, which the plaintiff’s counsel repeatedly instructed the insurance company’s designee not to answer, finally terminating the deposition. Id. at *3– 8. While the court did not necessarily disagree that the defendant’s counsel acted in bad faith at times, and his questioning exceeded the scope of the notice, the court was most troubled by the plaintiff’s counsel’s failure to seek the court’s assistance under Federal Rule of Civil Procedure 30(d)(3), instead instructing the witness not to answer the questions. Id. at *20–22 (citing Smith v. Logansport Comm. School, 139 F.R.D. 637, 643 (N.D. Ind. 1991) (finding that counsel should have stated objections on the record, halted the deposition, and immediately filed a protective order). The court, in awarding sanctions, held that the plaintiff’s counsel should have sought the court’s “immediate assistance” as outlined in Federal Rule of Civil Procedure 30(d)(3), through a simple phone call, rather than terminating the deposition. Id. at *21, 24. The most common deposition issue is whether counsel can make proper objections to questions “believed” to be beyond the scope of a deposition notice. You should not mistakenly believe that a deposition notice confines an examination, and you should not confine your preparation to the deposition notice topics. King, 161 F.R.D. at 476. The King court, followed by many federal circuits, have reasoned Federal Rule of Civil Procedure 30(b)(6) as “best read” as meaning that [i]f the examining party asks questions outside the scope of the matters described in the notice, the general deposition rules govern (i.e., Fed. R. Civ. P. 26(b)(1)), so that relevant questions may be asked and no special protection is conferred on a deponent by virtue of the fact that the deposition was noticed under 30(b)(6). Id. at 476. Stated another way, a Federal Rule of Civil Procedure 30(b)(6) deposition notice does not limit the deposition topics. However, that is not to say that an attorney cannot object to the scope of the proposed questions. See TV Interactive, 2012 U.S. Dist. Lexis, at *8–12 (finding contention interrogatories more appropriate in discovery to obtain information about the defendant’s legal defense than Fed. R. Civ. P. 30(b)(6) depositions); Newman v. Borders, Inc., 2009 WL 931545 (D.D.C. April 6, 2009) (relying on Fed. R. Civ. P. 1 to limit the plaintiff’s request for an additional 30(b)(6) witness rather than ordering the defendant to submit an affidavit addressing the company’s e-mail policies and system). Before designating additional 30(b)(6) witnesses or deciding to have another corporate designee appear to testify on a deposition notice topics, first confer with a client and then opposing counsel. And then if necessary, contact the court. FORENSIC ENGINEERING INVESTIGATIONS, EXPERT TESTIMONY and CONSULTING Conclusion Federal Rule of Civil Procedure 30(b)(6) depositions are important to product liability cases. Selecting the correct corporate witness, preparing the witness sufficiently, and dealing with lingering uncertainty, as well as handling the deposition itself, can lead to sleepless nights. A successful Federal Rule of Civil Procedure 30(b)(6) deposition will prevent an adversary from torpedoing a case. Success starts with carefully examining a deposition notice and raising appropriate deposition scope objections. Success next involves thoroughly selecting and preparing the witness. It finishes with a witness testifying with knowledge about the product; its involvement in the accident or the injury; and the product’s manufacture, design, and warning selection. Take nothing for granted when selecting and preparing a 30(b)(6) witness. If you prepare a witness properly, you should have a satisfactory outcome. Over 30 years of serving clients with industrial technical services, insurance claims or subrogation, and product liability litigation. AREAS OF EXPERTISE Fire and Explosion Propane and Natural Gas Industrial Accidents Materials and Process Engineering Building Science Standards and Code Consulting Slip and Fall Incidents Accident Investigation and Crash Reconstruction PROFESSIONAL DISCIPLINES Mechanical Engineering Metallurgical and Materials Engineering Electrical Engineering Chemical Engineering Forensic Architecture Structural Engineering Civil Engineering Geotechnical Engineering Call 800-538-2797 | For more information and expert profiles, visit www.CraneEngineering.com For The Defense ■ November 2012 ■ 41
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