Presenting a live 90-minute webinar with interactive Q&A Depositions in Insurance Coverage and Bad Faith Litigation: 30(b)(6) and Fact Witnesses Taking and Representing Fact Witness and Corporate Representative Depositions, Navigating Ethical Issues in Witness Preparation TUESDAY, FEBRUARY 23, 2016 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Tarron Gartner-Ilai, Principal, Amy Stewart , Dallas Alan P . Jacobus, Principal, APJ Legal , San 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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Ethical Advocacy: Taking and Defending 30(b)(6) Depositions in Insurance Bad Faith Cases Tarron Gartner-Ilai Amy Stewart tarron@amystewartlaw.com Alan P. Jacobus APJ Legal alan.jacobus@apjlegal.com
Introduction to the Topic Corporate representative deposition (Fed. R. Civ. P. 30 (b) (6)) Insurance companies Corporate policyholders Third parties Goals of deposition Obtain information Prepare for dispositve motions, settlement, trial Bind party From policyholder perspective it potentially shows ratification by the company for the acts of its agents and employees Development of case themes 6
Why is This Topic Important? A 30 (b) (6) deposition is the opportunity to obtain the overall knowledge of a corporate party Failing to prepare to take or defend a 30 (b) (6) deposition may irreparably harm a client’s case Often the 30 (b) (6) deposition plays a crucial role at trial 7
Use of the 30 (b) (6) Deposition In Further Proceedings Admissions Making the most of “I don’t know . . .” Demonstrative exhibits Impeachment Of deponent Of other witnesses Of corporate statements in documents Entity’s use of deposition at trial may be limited Foundation and hearsay issues 8
Special Considerations in Insurance Coverage and Bad Faith Claims Underwriting versus claims handling functions at insurance companies (two witnesses?) Familiarity with the policy and all available underwriting / claims materials Familiarity with all relevant procedures Bad faith claim may create an implied waiver of some privilege and work product protections Protection of other policyholders’ information 9
The Rule: Fed. R. Civ. P. 30 (b) (6) Notice or Subpoena Directed to an Organization: The Party Taking the Deposition Name the Corporation; Describe with reasonable particularity the matters for examination; Advise nonparty organization of its duty to make the designation. The Party Defending the Deposition Must designate one or more officers, directors, or managing agents, or other persons who consent to testify on the company’s behalf; Person designated must testify about matters known or reasonably available to the organization. 10
Key Characteristics of the Rule Entity is to be protected against serial, cumulative, or duplicative depositions; Provides remedy for the “run -around ”; Binds the company. 11
Procedure and Mechanics: The Deposing Party The noticing party must “describe with reasonable particularity the matters for examination . . . .” With respect to properly and clearly noticed topics, the 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 not properly noticed Best practices: Provide list of topics early 12
Procedure and Mechanics: The Responding Entity Must designate a representative or representatives to provide information known or reasonably available to the entity 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 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 Substantive? 13
Ethical Advocacy Attorney’s conduct is self -regulated Federal rules do not provide guidance No “model creed” Nature of bad faith litigation and potential for multiplier of damages lends itself to aggressive tactics 14
Model Rules 1.1 and 1.3 1.1 Competence A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. 1.3 Diligence A lawyer shall act with reasonable diligence and promptness in representing a client. 15
Competent and Effective Witness Preparation Review documents and go over facts carefully All documents reviewed are discoverable Where necessary, use your own notes related to privileged documents Prepare the witness to listen Listen, pause, answer Answer only the question asked Don’t volunteer information 16
Competent and Effective Witness Preparation Instruct the witness to tell the truth Evasiveness shows up on the record and injures credibility “I don’t know” is OK Prepare the witness to distinguish between “fact” questions and tricky “feeling” questions (i.e. “Isn’t it your responsibility to…”) Prepare the witness to be videotaped Practice videos raises the issue of whether the videos are discoverable or work product Instruct the witness not to guess Ask for clarification Don’t Lecture (Woodshed) the Witness 17
Preparing the Responding Entity Personal knowledge of deponent not required, but preferred, when possible Attempt to provide foundation (personal knowledge) of facts; Especially important when entity wants witness to testify as 30 (b) (6) witness and trial witness; If witness is also a fact witness, prepare the witness on matters related to topics designated and to ask for clarification; At trial, evidentiary requirements (including foundation and hearsay) apply. See Williams Advanced Materials, Inc. v. Target Tech. Co., LLC , 2009 WL 3644357 (W.D.NY. Oct. 28, 2009). 18
Preparing the Responding Entity: Practice Pointers Prepare binders for witness with key documents for each deposition topic arranged by tab; Include any other key documents in binder; Only put documents in binder you have produced or are willing to produce ; No witness notes in binder — blank flags usually ok Create summaries, spreadsheets, etc. of complex matters; Work with witness in preparation to familiarize the witness with the binder method; Be prepared to produce a copy of the binder, if asked, and you will be asked. 19
Taking the Deposition Prepare binders for witness with key documents for each deposition topic arranged by tab; Chronological order is helpful for impeachment to show later inconsistent conduct; Copy for witness, opposing counsel, and court reporter; Great for taking notes on specific documents during the deposition (color code question for preparation and response given during examination); Make sure to confirm topics on which witness has been designated during deposition; Corporate representative may not be claim handler Good opportunity for impeachment 20
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