A few years ago, I represented a process piping subcontractor in a claim against the general contractor and the owner of a coal fired power plant in Massachusetts. While the case was unique and interesting in a number of ways, some of which may be the subject of future posts, one aspect that was new for me was taking a Rule 30(b)(6) corporate deposition of two individuals at the same time.
Rule 30(b)(6) depositions are depositions of a corporation or other business entity. It is the corporation that is testifying. These depositions can be helpful to obtain testimony of the corporation that will be binding on the corporation at the time of trial. They also impose an obligation to prepare and educate the individuals who testify on behalf of the corporation — to learn what information the “corporation knows” which is often beyond one person’s personal knowledge. The corporation designates individuals to testify for the corporation on a list of topics provided by the party noticing the deposition. While there was no clear rule on how the witness selection and disclosure was to take place, we agreed to disclose the identity of the designees in advance of the deposition. (As a side note, Rule 30(b)(6) of the Federal Rules of Civil Procedure are set to go into effect which will define a process by requiring a “confer in good faith” requirement about the number/description of the topics as well as the identity of the designees. Interestingly, this conference is supposed to occur before or promptly after notice of the subpoena. To learn more about the amendments, click HERE., pages 31-38).)
In my case, both sides noticed 30(b)(6) depositions after numerous individual depositions. The case involved over 180 disputed change requests from my client so I had planned to use the corporate deposition to lock down the general contractor’s position on the various change requests.
My client’s corporate deposition went first. I brought four designees to the deposition: (a) owner of the company, (b) vice president of the company, (c) general superintendent of the project, and (d) my client’s accountant. Prior to the date of the deposition, I communicated to opposing counsel the topics that would be testified to by each witness – similar to the required good faith conferring required by the updated federal rule. Opposing counsel wanted to proceed forward with the corporate deposition by asking questions to all four designees at the same time. I objected to proceeding along those lines and suspended the deposition. (Following a later filed motion, the Court allowed opposing counsel to take the deposition of each of my client’s designees one at a time as I had initially proposed.)
When it came time to take the deposition of the general contractor, opposing counsel was consistent. He wanted his project executive and project manager to testify at the same time. As I was unfamiliar with this concept at the time, I asked around and did some research as to what other attorneys thought. I came across a 2004 article titled Deposition by Committee that proposed the concept. The authors’ experience with it was surprisingly positive.
Rather than engage in further motion practice, I gave it shot and deposed the two general contractor witnesses at the same time. Guess what . . . it worked! In my deposition, the two witnesses had personal knowledge regarding similar, relevant facts. The project manager was the employee with day-to-day knowledge of what transpired while the project executive was the boss who made the most important business decisions. The overlapping knowledge helped bring finality to the questions posed during the deposition. For example, when I asked about a certain change order, typically the project manager answered. After a few follow-up questions, I then looked at the project executive and said “do you agree?” It created less wiggle room at the time of trial and avoided the evolution of testimony that sometimes occurs where there are multiple deponents.
Even though I was surprised at the efficiency of the “deposition by committee” of my adversary’s witnesses, I am confident the same system would not have worked for my client’s 30(b)(6) deposition. Unlike the complimentary knowledge of the general contractor’s witnesses, each of my four designees had distinct and independent sources of knowledge concerning the dispute. Also, it would have been challenging to handle four witnesses as opposed to two. It would have been entirely cumbersome and unwieldy to figure out who was going to testify as to a certain question through such a group deposition.
Except for perhaps presenting before a corporate or governmental board, I have not had the opportunity to conduct a “deposition by committee” since the case a number of years ago. In looking back on it now, here are some general issues to consider regarding taking a “deposition by committee”:
- It can be less costly and more efficient. If you depose two witnesses at the same time, you will incur the stenographic costs only once. You will have to prepare for the deposition only once. Due to scheduling conflicts or otherwise, depositions are often spread around. By having two key witnesses being deposed contemporaneously, your client obtains more value from the same amount of preparation time. While the deposition itself may last longer with two witnesses providing answers, my experience with complimentary witnesses was that there was a minimal amount of redundant testimony.
- It leads to less finger-pointing or “he said, she said” if you have the key witnesses with knowledge present.
- It is productive where the witnesses have overlapping knowledge or involvement.
- I think it would be challenging to do it for more than two witnesses.
- It is difficult on the stenographer. Create ground rules and agreements during the start of the deposition for the court reporter. The stenographer may request additional breaks because it is more tiring to keep track what three people (plus attorneys) are saying than two.
- Maintain control of the deposition. At the beginning of the deposition, isolate which witnesses have more (or about the same) level of knowledge regarding certain of the listed topics. With this understanding, you can structure your examination to focus per topic on the witness that has the most knowledge, then direct any follow-up (“anything else to add”) questions to the other designee. With the upcoming federal rule changes, you can and should do this conferring about the topics per witness early on. That will enable you to structure your deposition outline strategy well before you take it. By focusing the questions on a specific witness during group examination, you can maintain control over the deposition rather than waiting for the witnesses to decide who will respond to the question. If you permit the witnesses to decide who will speak, the likely result is that they will talk over each other and/or it will cause unnecessary delay.
- This form of testimony may be more comfortable for witnesses who are more familiar communicating in a “committee” environment. For example, a superintendent and project manager could be more at ease testifying side-by-side than if they were solely on the “hot seat.” It resembles their normal project meeting environment. Such a “committee” approach also allows one of the witnesses to pass the buck to the other witness when needed which may mitigate understandable anxiety.
If you come across some of these attributes in your next corporate deposition, consider trying out a deposition by committee. You may like what you find.