In the December 5, 2016 blog, we discussed what corporate representative depositions (“CRD”) are and why they are used. This blog addresses defense tactics and the conduct of CRDs.
As previously noted, the party requesting the CRD is required to identify with reasonable particularity each of the subject areas for questioning. The corporation can object to the deposition notice when the subjects are so broad or vague that it is impossible to identify a witness. Language such as “including, but not limited to” can be struck from a deposition notice for noncompliance with the reasonable particularity requirement. Notices can also be objected to because the information requested is irrelevant, privileged, confidential or a trade secret. Most courts expect the attorneys to confer before filing motions objecting to the deposition notice.
Some CRDs include deposition dates that are immediately after the lawsuit is filed. The goal is to obtain testimony before the corporation has had time to obtain all of the responsive information. An early deposition places the corporation in the position of using the “information is not available” response, followed by attempts by plaintiff’s counsel to obtain sanctions against an unprepared corporation. If consulting with plaintiff’s counsel over the date is unsuccessful, obtaining a protective order should be requested.
The cardinal rule for objections to CRD notices is that the objections should be resolved either by agreement or court order in advance of the deposition. When a corporation goes to the deposition and raises the objections at the deposition and its counsel instructs the witness not to answer the objectionable questions, the corporation runs a high risk of being sanctioned by the court. Sanctions can include the costs for taking the deposition and fees for opposing counsel’s time to prepare and take the deposition; striking defenses related to the areas objected to; responses favorable to the plaintiff for each question not answered; and default judgment for the plaintiff. The consequences for failure to provide a prepared witness can be serious.
CRDs do not follow the standard deposition questioning format. The witness is usually asked if she is aware that she speaks as the corporation and will answer questions as the corporation. Typically, the notice is reviewed with the witness and the witness is expected to state on what areas she is prepared to testify. During the deposition, if the questioner asks questions outside of the areas for which the witness has been designated to testify, it is critical for defense counsel to state on the record that the areas of questioning are outside of the areas of designation and that the witness is not testifying as the corporate representative. If the witness is factually knowledgeable, she can be instructed to testify on the areas outside those for which she was designated to testify. Otherwise, the witness should testify that she, personally, has no knowledge.
Many of the standard objections can be raised during CRDs, but there are some objection rules unique to CRDs. An objection that the document speaks for itself usually cannot be raised during CRD depositions because the point is to find out what the document means to the corporation. Some courts have ruled that questions requiring legal conclusions from corporate representatives are not binding on their corporations. But the representative can be questioned about the subjective beliefs and opinions of the corporation. The hearsay objection is peculiar for corporations because much of the testimony is about what employees have told the witness. It is important to remember that the knowledge of the corporation’s employees is considered part of the collective knowledge of the corporation.
During CRDs, it is very common for plaintiff’s counsel to refuse to accept the answer that the information is not known or available to the corporation. Several pages of deposition transcript can be devoted to attempting to force the witness to provide an answer. These can constitute deposition abuse tactics requiring court intervention. Thus, every defense counsel should have the telephone number of the judge’s chambers handy.
Corporate representative depositions are becoming commonplace in long term care facility lawsuits. They must be taken seriously because failure to follow the rules can have extreme consequences.