Presenting a live 90-minute webinar with interactive Q&A Preparing Witnesses for Deposition: Overcoming Challenges With 30(b)(6) Representatives and Fact and Expert Witnesses Navigating Current Restrictions on Defending Counsel, Complying with Ethical Guidance, and Strategies for Witness Preparation THURSDAY, JANUARY 12, 2017 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Mark Bloomberg, Partner, Zuber Lawler & Del Duca , New York John C. (Jay) Maloney, Jr., Partner, Zuber Lawler & Del Duca , New York S. Calvin Walden, Partner, Wilmer Cutler Pickering Hale and Dorr , New York 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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STRAFFORD WEBINARS “Preparing Witnesses for Deposition: Overcoming Challenges with 30(b)(6) Representatives and Fact and Expert Witnesses” By: John C. “Jay” Maloney, Jr., Esq. Zuber Lawler & Del Duca, LLP S. Calvin Walden, Esq. Wilmer Hale Mark H. Bloomberg, Esq. Zuber Lawler & Del Duca, LLP January 12, 2017 5
Subjects: I. The Importance of Planning and Preparation Based On The Type of Deposition Witness Involved II. Current Restrictions On Defending Counsel at a Deposition III. Ethical Guidance On Witness Preparation IV. Tips for Preparing The Fact Witness to Perform At His or Her Best V. The Special Rules for Preparing The Rule 30(b)(6) Witness or Corporate Representative VI. Tips for Preparing The Expert Witness For His or Her Deposition VII. Keeping The Videotaped Deposition In Mind During Preparation 6
I. The Importance of Planning and Preparation A. An Ethical Duty 1. RPC 1.1 and 1.3 2. “competence” 3. “zealous advocacy” 4. “reasonable diligence” B. Importance of Depositions Generally: 1. Common discovery tool to learn or confirm what you know about the adversary’s case, and to prepare your attack 2. Obtain useful admissions for use in a summary judgment motion or at trial 3. Assess witness’s credibility 4. Usually a milestone in settlement process 7
Deposition Witness Planning (continued) C. Importance of Depositions to Your Case: 1. Your witness must know your case and be able to take advantage of opportunities at the deposition to advance your client’s position and trial themes 2. Your witness must avoid damaging admissions, mistakes, or omissions at his or her deposition that you will have to deal with for the rest of the case 8
Deposition Witness Planning (continued) D. Witness Assessment, Planning, Preparation and Rehearsal are essential to excellent performance at the deposition 1. You must know the personality type, personal characteristics, and role of the witness in your case so you can set reasonable goals for the witness’s performance 2. Planning and preparation are hard work and must continue throughout the entire deposition process from notice to the deposition transcript and submission of errata sheet 3. Intensive practice in Q&A over a prolonged period is essential to excellent performance at the deposition 9
II. The Current Restrictions on Defending Counsel at a Deposition A. The Principal Areas of Restrictions Attorney – witness communications during course of 1. deposition i. What about breaks, lunch, interim periods before deposition resumes? ii. What about protecting the privileges? Defending attorney’s objections and directions to witness not to 2. answer 10
Current Restrictions (continued) B. Attorney – Witness Communications 1. Attorney “shall not initiate a private conference with the deponent while a deposition question is pending” except to determine whether a privilege should be asserted. SDNY/EDNY Civil Rule 30.4 2. Judge Sheindlin (SDNY) Individual Rules i. Attorney-initiated conference with questions pending presumptively improper, except where there is a privilege issue 3. Many federal courts, including New Jersey federal courts (Local Civil Rule 26.1(6)(a)), “follow the restrictions against attorney - witness communications set down by Judge Gawthrop of the Eastern District of Pennsylvania in Hall v. Clifton Precision , 150 F.R.D. 525, 531-32 (E.D. Pa. 1993) 11
Current Restrictions (continued) 4. New York State Courts i. Attorney shall not interrupt the deposition to communicate with deponent except to determine whether question should not be answered under Rule 221.2** ii. And reason for communication shall be stated on the record “clearly and succinctly” NYS Uniform Rules Section 221.1(b) ** privilege, court ordered limitation, question plainly improper and causes prejudice 12
Current Restrictions (continued) 5. New Jersey State Courts N.J. Ct. R. 4:14-3(f) Once the deponent is sworn no conversations between deponent and counsel except regarding assertion of claim to privilege, a right to confidentiality or limitation pursuant to a previously entered court order. See, In Re PS&G Shareholder , Lit. 320 N.J. Super. 112, 118-119 (Ch.Div. 1998). 13
Current Restrictions (continued) C. Defending Attorney’s Objections and Directions 1. Federal Courts i. Fed. R. Civ. P. 30(c)(2) Objections: “An objection must be stated concisely in a non - argumentative and non-negative manner. 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).” 14
Current Restrictions (continued) ii. Judge Sheindlin (SDNY) Individual Rules Directions not to answer are presumptively improper, appropriate only: To protect privilege Question intended to harass Question “clearly irrelevant” causing “substantial prejudice” Objections must not be suggestive 15
Current Restrictions (continued) 2. New York State Courts Objections “stated succinctly and framed so as not to i. suggest an answer” Include a “clear statement of the defect in form or other i. basis of error or irregularity” Other than that “persons in attendance shall not make i. statements or comments that interfere with questioning.” NYS Uniform Rules Section 221.1(b) 16
Current Restrictions (continued) 3. New Jersey State Courts i. Objections concerning the form of the question, the manner of taking the deposition or other matters that might have been corrected at that time are waived, if not made in a timely fashion during the deposition N.J. Ct. R. 4:16 – 4(c)(2) Form objection must “include a statement … as to why ii. form is objectionable so as to allow the interrogator to amend the question.” N.J. Ct. R. 4:14 – 3(c) iii. An attorney may instruct the deponent not to answer a question only when necessary to preserve privilege, to enforce a limitation ordered by the court or to seek to terminate the deposition where it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses or oppresses the deponent. N.J. Ct. R. 4:14 – 3 17
Current Restrictions (continued) D. Restrictions are Enforced by Sanctions 1. See Security National Bank of Sioux City, Iowa v. Abbott Laboratories , 299 F.R.D. 595 (N.D. Iowa 2014), rev’d on other grounds , 800 F.3d 936 (8th Cir. 2015) 2. New Jersey State Courts N.J. Cr. R. 4:14-4 and 4:23 et.seq. 18
Attorney Objections (continued) Defending Lawyer’s Response to These Constraints E. 1. Recognize that the witness must be able to fend for himself or herself at the deposition 2. Only extensive and careful preparation of the witness will provide the self-confidence and experience necessary for the witness’s performance excellence 3. You best defend your witness by preparing him or her in advance 19
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