Presenting a live 90 ‐ minute webinar with interactive Q&A 30(b)(6) Deponents and Trial Testimony 3 ( )( ) p y in Coverage and Bad Faith Litigation Preparing and Responding to Notices of Corporate Deposition THURS DAY, AUGUS T 15, 2013 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific T d Today’s faculty features: ’ f l f Richard E. Dolder, Partner, Slappey & Sadd , Atlanta Alan P . Jacobus, Partner, Carroll, Burdick & McDonough , S an Francisco The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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Fed. R. Civ. P. 30 (b) (6) Deposition and Trial Testimony in Coverage and d T i l T i i C d Bad Faith Litigation Richard Dolder Alan Palmer Jacobus Slappey & Sadd, LLC Carroll, Burdick & McDonough LLP 352 Sandy Springs Circle 44 Montgomery Street, 4th Floor Atlanta, Georgia 30328 A l G i 30328 S San Francisco, California 94104 F i C lif i 94104 Telephone: 404-255-6677 Telephone: 415-989-5900
Presenter—Policyholder Side Presenter Policyholder Side Richard Dolder Richard Dolder 6
Presenter—Insurer Side Presenter Insurer Side Alan Palmer Jacobus Alan Palmer Jacobus 7
Introduction to the Topic Introduction to the Topic Corporate representative deposition (Fed. R. Corporate representative deposition (Fed. R. Civ. P. 30 (b) (6)) Insurance companies p Corporate policyholders Third parties p Goals of deposition Obtain information Prepare for dispositve motions, settlement, trial Bind party 8
Why is This Topic Important? Why is This Topic Important? A 30 (b) (6) deposition is the opportunity to A 30 (b) (6) deposition is the opportunity to obtain the overall knowledge of a corporate party party Failing to prepare to take or defend a 30 (b) (6) deposition may irreparably harm a client’s case deposition may irreparably harm a client s case Often the 30 (b) (6) deposition plays a crucial role at trial l i l 9
The Rule: Fed. R. Civ. P. 30 (b) (6) The Rule: Fed. R. Civ. P. 30 (b) (6) Notice or Subpoena Directed to an Organization. In its p g notice or subpoena, a party may name as the deponent a public or private corporation, [etc.] and must describe with reasonable particularity the matters for examination. The named p y organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each y y person designated will testify. A subpoena must advise a nonparty organization of its duty to make this designation. The persons designated must testify about information known or p g y reasonably available to the organization. This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules. 10
Policies Behind the Rule: Notes of Advisory Committee on Rules—1970 Advisory Committee on Rules 1970 Amendment The [rule] should be viewed as an added facility for discovery The [rule] should be viewed as an added facility for discovery, one which may be advantageous to both sides as well as an improvement in the deposition process. It will reduce the difficulties now encountered in determining prior to the taking difficulties now encountered in determining, prior to the taking of a deposition, whether a particular employee or agent is a “managing agent.” ). [Citation omitted.] It will curb the “bandying” by which officers or managing agents of a bandying by which officers or managing agents of a corporation are deposed in turn but each disclaims knowledge of facts that are clearly known to persons in the organization and thereby to it [Citation omitted ] The provisions should also thereby to it. [Citation omitted.] The provisions should also assist organizations which find that an unnecessarily large number of their officers and agents are being deposed by a party uncertain of who in the organization has knowledge. [. . . .] ncertain of ho in the organization has kno ledge [ ] 11
Key Characteristics of the Rule Key Characteristics of the Rule An entity’s deposition may be taken An entity s deposition may be taken Entity must designate a representative (the “corporate designee”) corporate designee ) Designee must testify as to information known or reasonably available to the entity bl il bl h i Entity is to be protected against serial, cumulative, or duplicative depositions Provides remedy for the “run-around” y 12
Procedure and Mechanics: The Deposing Party The noticing party must “describe with reasonable g p y particularity the matters for examination . . . .” With respect to properly and clearly noticed topics, the responding entity must designate a person who can provide responding entity must designate a person who can provide information “known or reasonably available to the organization.” No witness available on a topic? Duces tecum demands The responding entity may not be bound by any testimony Th di i b b d b i not properly noticed Best practices: Provide list of topics early Best practices: Provide list of topics early 13
Procedure and Mechanics—the Responding Entity Must designate a representative or representatives to g p p provide information known or reasonably available to the entity Current versus former employee considerations Current versus former employee considerations Person from outside of the entity Two depositions of same witness?—30 (b) (6) and percipient Failure to designate (and prepare) a qualified witness F il d i ( d ) lifi d i may result in a motion to compel and additional depositions Best practice is a letter response to designations Objections—Fed. R. Civ. P. 32 (d) Procedural P d l Substantive? 14
Preparation for the Deposition: Deposing Party Carefully assess entire file including discovery Carefully assess entire file, including discovery received and pleadings Elements of cause of action Elements of cause of action Affirmative defenses Prepare deposition outline before preparing P d i i li b f i notice Ensure notice includes topics clearly covering all areas of intended examination 15
Preparation for Deposition: Responding Entity Carefully examine notice Carefully examine entire file Choose witness carefully Deponent with personal knowledge is always best, if possible— e.g. supervisor Experienced deponent Experienced deponent Witness preparation—Required Meet with counsel Review corporate documents Interview others with knowledge of noticed topics Know the case, inside and out K h i id d Fix previous, damaging testimony 16
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