Corporate Depositions

Brien Roche

Corporate depositions (depos) are controlled by the Rules of the Court. The Rule makes several points: (1) The matters to be addressed must be set forth with reasonable particularity. (2)The entity must identify one or more persons to respond. (3) Before or promptly after the notice is served the parties must confer about the matters to be addressed.(4)The notice must advise the entity of its duty to designate and duty to confer.

The statement of matters must be clear and crisp. The entity to be deposed then has to produce one or more people to respond to these areas set forth. In addition the entity is bound by whatever answers are given. This means the witness they choose must be well briefed as to the issues. However that person does not need to have first hand knowledge of the matters. Rather that person may have to be infused with the knowledge held by the entity.

In Corporate Depositions Being Precise Is the Key

The courts are split on exactly how precise the statement of matters need be. Some courts have said that they need to be very precise. Other courts have been less strict.
In any event the person who is chosen must appear and answer questions not only about what the entity knows but also its beliefs and what posture it is going to assume on certain issues. In addition the witness must also be ready to address the company’s take on writings and events. Call or contact us for a free consult.

The Basics of the Notice

A Notice of Deposition for an entity should begin by asking it to choose one or more people. That person(s) must consent to appear on its behalf. The entity must fully prepare them to answer questions in regard the stated matters. This knowledge of the witness must include such info that is known or reasonably available to the entity:

1. All facts leading up to and which include …
2. The entity’s posture as to how and why the Plaintiff suffered the injury in question.
3. The fact basis for any defenses.
4. The fact basis to support what the entity contends as to… AIA Holdings, S.A., et al. v. Lehman Bros., et al., 2002 W.L. 1041356

The Person With Most Knowledge Need Not Be Produced

The Rule does not require that the entity provide the person with the most knowledge. Rather they must prepare a witness to provide all info that is known to the entity. In that sense you should inquire as to whether the witness is speaking from first hand knowledge or from all of the facts known to the entity. This may include info known to persons outside of the control group i.e. the core group that controls the entity. The witness must be prepared to provide all of this info.

If the entity has not filed a Motion for a Protective Order or objected to the deposition, then its failure to do so precludes later objection to the Notice.

Standard Questions in Corporate Depo

Some standard questions that should be asked as part of any such deposition:

– Everything that the witness did to gather knowledge about the matters.
– Are there any other people who have knowledge of these matters?
– What has been done to make sure that the witness is able to testify as to all of the info known to the entity?

A Common Problem

A common dispute that arises during the course of these depos is whether or not the questions asked are within the scope of the notice. Most courts do not limit what can be asked in a depo. As a result even though the questions may go outside the scope of the Notice, that does not mean that it is okay to instruct the witness not to answer. If the questions go outside the scope of the stated areas then that means that the witness is no longer binding the entity being deposed. However directing the witness not to answer because the subject matter goes beyond that listed in the Notice is not proper.

For more information about depositions see the pages on Wikipedia. In the legal resources section of this website there is a notice of deposition for a corporate designee.

The Know-Nothing Witness

It is not uncommon in these depos that the company produce a witness who knows little or nothing about the issues. There is no excuse for that. It is the job of the company to inform its witness about the matters so they can speak on its behalf. If this happens to you then your options are several. First of all you can ask the Court to treat the matters as decided adverse to the outfit. Secondly you can ask the Court to order that a witness with knowledge be produced. Thirdly you can use the lack of knowledge to bar future proof on behalf of the company on those issues.

Audio-Visual

It is generally a good idea to take the deposition by audio-visual if the trial will be with a jury. Beware that under Virginia Rule 4:7A the audio visual depo can only be edited with consent of all parties or by court order.

Depositions of Corporate Officers

When you’re dealing with a publicly-traded company and you want to take the deposition of a corporate officer, you need to be aware of Virginia Code § 8.01-420.4:1 which lays down certain criteria for taking such a deposition.

These types of depositions are sometimes referred to as “apex depositions” and the theory that protects corporate officers is sometimes called the “apex doctrine”.  The doctrine itself is essentially a burden shifting mechanism.  In other words, in general the party for whom discovery is sought has the burden of showing good cause when seeking a protective order.  For apex officials, this doctrine shifts the burden to the party seeking the discovery.  Under the Virginia statute, typically a corporate designee deposition has to be taken first.  However this only applies to certain corporations.  If the statute does not apply, then the apex doctrine may still apply.  In particular you should be prepared to show that the corporate officer has knowledge of specific facts that are relevant to the proceeding.

Whether the statute applies or not, you should be prepared to offer certain accommodations i.e., agree to limit the time of the deposition, the place of the deposition, scope of the questioning, etc.

Call, or contact us for a free consult.