Presenting a live 90-minute webinar with interactive Q&A Deposition Strategies in Employment Litigation: Taking and Defending Depositions of Plaintiffs and Fact Witnesses Leveraging Deposition Testimony During Discovery, Summary Judgment, Settlement and Trial WEDNESDAY, NOVEMBER 14, 2018 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Jesse A. Cripps, Partner, Gibson Dunn & Crutcher , Los Angeles William C. Martucci, Partner, Shook Hardy & Bacon , Washington, D.C. Katherine V.A. Smith, Partner, Gibson Dunn & Crutcher , Los Angeles 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. 1 .
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Brief Overview of Federal Rules Governing Depositions SECTION 1 5
Basic Overview of Federal Rules Governing Depositions Key Federal Rules • Rule 26: Contains overarching provisions that define scope and limitations of all discovery devices • Rule 27: Intended to permit the perpetuation of testimony – not a fishing expedition to “discover” a cause of action • Rule 28: Requires depositions to be taken before an officer authorized to administer oaths under laws of US, the place where the deposition is taken, or before a person appointed by the court • Rule 30: Governs the notice and taking depositions (frequently amended or changed by local rule) • Rule 30(b)(6): Contains special procedures for organizational depositions 6
Determining Who to Depose SECTION 2 7
A Starting Place – What Do You Seek to Accomplish? 8
Determining Who to Depose The Big Picture Drives the Little One • Be strategic and specific to the particular case and your overall objectives. • Partner and coordinate with your client ( e.g., corporate counsel and the business unit) to focus on key objectives. • Consider the purpose for each potential deposition: o Is it consistent with the overall business objective and litigation strategy? o Will it contribute to the ultimate objective? How? • Each deposition should be undertaken only if it contributes to the ultimate business objective and litigation strategy. 9
Determining Who to Depose The Principal Purposes of Depositions Obtain admissions Obtain admissions Bind the witness to a Bind the witness to a needed for motions needed for motions Preserve testimony Preserve testimony particular set of particular set of and at trial and at trial facts facts Discover information Discover information Identify other Identify other relevant to the case relevant to the case sources of relevant sources of relevant and issues likely to and issues likely to evidence evidence arise at trial arise at trial 10
Determining Who to Depose Critical Deposition: The Plaintiff • Almost always the single most important discovery tool in employment litigation with multiple purposes: o Essential for winning summary judgment and other key motions ( e.g ., certification, limine) o Affords invaluable trial preparation o Critical for purposes of developing case evaluation and overall litigation strategy o Provides opportunities to: ▪ Learn ▪ Teach ▪ Prove Ground 11
Determining Who to Depose Critical Deposition: The Plaintiff (cont.) Learn: • How Plaintiff perceives the case • Level of Plaintiff’s involvement • How much Plaintiff knows about the basis for the claims • About Plaintiff’s counsel • Plaintiff’s credibility/likeability • Other avenues of discovery worth pursuing • Holes in written/document discovery 12
Determining Who to Depose Critical Deposition: The Plaintiff (cont.) Teach: • Plaintiff and his/her lawyer about the problems in the case Prove Ground: • Test theories and strategies • Find out where holes are • Expose Plaintiff’s weaknesses • Find out what works and more importantly, what does not 13
Determining Who to Depose Timing and Order Considerations But, may make sense to: Most often advantageous to depose Plaintiff first: o Take Plaintiff’s deposition without any prior discovery, o Secure Plaintiff’s testimony at the outset of the before further discovery discovery period (but, be can educate opposing mindful of Rule 26 counsel to as to strategy obligations when using o Prevents Plaintiff from exhibits during deposition) adjusting his/her version o Agree to abbreviated of events depositions followed by ADR o Better positions defense attempt or a succinct attorney to prepare the dispositive or certification employer’s witnesses for motion their deposition 14
Determining Who to Depose Who Else Besides Plaintiff? Witnesses Witnesses and/or and/or Supporters Supporters Family Family Expert(s) Expert(s) Members Members Plaintiff Plaintiff Medical Medical Other Other Providers Providers Employers Employers 15
Determining Who to Depose Who Else Besides Plaintiff? (cont.) • Witnesses who may be unavailable for trial, including those outside the trial court’s jurisdiction • “Affirmative” witnesses • Evaluate how any such deposition will contribute to the overall objective and litigation strategy Be mindful of “pulling in” witnesses through the Be mindful of “pulling in” witnesses through the deposition process who are not likely to otherwise deposition process who are not likely to otherwise become engaged in the litigation become engaged in the litigation 16
Determining Who to Depose Deposing EEOC Personnel • EEOC generally seeks a protective order for such depositions, asserting deliberative process privilege • But, Courts have been more open to denying motions for such protective orders, allowing EEOC fact witness and 30(b)(6) depositions to go forward and even including discovery into the EEOC’s own employment practices: o E.g., Little v. Auburn University (M.D. Al. 2010) (permitting deposition of EEOC investigator); and o EEOC v. Albertson's LLC (D.Colo. 2007) o Serrano v. Cintas Corp. (E.D.Mich. 2007) o EEOC v. Burlington Northern & Santa Fe RR Co. (W.D.Okla. 2008) o E.E.O.C. v. Kaplan Higher Educ. Corp. (N.D. Ohio 2011) (all permitting EEOC 30(b)(6) depositions) 17
Goals of Depositions SECTION 3 18
Goals of Depositions Common Objectives for Opposing Depositions in Employment Cases • Get and preserve testimony • General fact-gathering – discover basis and facts surrounding claims • Lay groundwork for certification motion, dispositive motion, and other pretrial motions • Commit the Plaintiff or other opposing witness to specific factual assertions/explanations concerning key facts and theories: o e.g., to whom did the plaintiff report harassment? o What was the nature of the adverse action? o Was anyone else treated more favorably? o What facts lead the plaintiff to believe there was discrimination? 19
Goals of Depositions Common Objectives for Opposing Depositions in Employment Cases (cont.) • Develop litigation themes • Demonstrate what Plaintiff or opposing witness doesn’t know: e.g., motivation of decision-maker and those who influenced the decision, discussions surrounding the decision, reasons for treatment of comparators, etc. • Lay groundwork for trial • Set tone for settlement discussions/ADR as appropriate • Evaluate credibility and strengths/limitations of Plaintiff or other opposing witness 20
Preparing for Depositions SECTION 4 21
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