Corporate representative depositions (“CRD”) are creatures of federal and state rules permitting parties to lawsuits to take depositions of corporations, associations, organizations and government agencies. They have been used for decades in products liability cases, but are relative newcomers in long term care litigation. In this section of a two-part blog, I will address the technical aspects of CRDs. The second blog will cover defending against and conduct of CRDs.
When a party to a lawsuit wants to take a CRD, it sends a deposition notice to the corporation stating that it wants to take the corporation’s deposition. The notice must set forth, with particularity, the subject areas for questioning. The corporation is required to identify people who it will offer to testify on each subject area. The individuals testifying can be anyone who consents to testify on behalf of the corporation. The person does not have to be the most knowledgeable on the subject, but the corporation must prepare the person to answer the questions. The witness must testify on all matters known or reasonably available to the corporation.
The first question is why a party to a lawsuit would want to take a CRD. CRDs are taken to streamline discovery. Plaintiffs prefer taking one deposition covering all the topics of interest, rather than depositions of numerous employees to find out who knows something. When the corporate representative testifies, she testifies on the entirety of the corporation’s knowledge on the topic being covered. This means that the witness must be well-briefed on the entirety of the corporation’s knowledge. If the deposition notice contains a huge number of areas for questioning, the corporation should designate more than one witness to testify. There is no limit on the number of witnesses the corporation can designate. Designating a former employee may not be advisable depending on why the person is no longer employed.
The corporation has an obligation to collect information and prepare the witness. Some courts have ruled that an unprepared witness constitutes a failure to appear at the deposition. The duty to prepare requires that the representative be provided with and testify on what is known or reasonably available to the corporation. When the information is not known or reasonably available, the witness can so state as long as the corporation attempted to find the information. “I don’t know” or “I was not there, so I don’t know” are not corporate responses and are not valid.
During the deposition, the witness can be asked what she did to find answers to the subjects identified in the deposition notice. Meeting with the corporation’s attorney to prepare is not sufficient preparation, unless the attorney has every shred of information responsive to the questions at the deposition. Not attempting to locate the information, including calling former employees, can result in sanctions. If during the deposition it is determined that another witness would make a better witness on a designated topic, the corporation may be required to offer that witness for a follow-up CRD at the corporation’s expense.
CRDs are also taken to force the corporation into taking a position on a designated subject. This purpose is apparent when numerous employee depositions are taken first and the CRD is taken later. The point is to document conflicting testimony. The corporation can always offer to stipulate to the content of an employee’s deposition that has already been taken on a designated subject. If such a stipulation is rejected, the corporation can request the court to enforce a stipulation rather than requiring another deposition on the same topic.
Whether a corporation is bound by the responses of the corporate representative is dependent on the court. Some courts have held that the corporation is bound by the responses and some courts have held that the corporation must have a good faith basis for a different response later. The best practice is to notify opposing counsel if new information becomes available that would change responses to CRD questions.
Corporate representative depositions are being increasingly used by plaintiffs’ counsel and long term care facilities need to know what they are and how to respond and prepare for them.