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Five Tips for Defending a Corporate Representative Deposition

An effective tool for a party taking discovery in Florida state court is deposing the corporate representative of an adverse party or non-party.[1] Accordingly, a corporate representative deposition requires the lawyer defending the corporate representative to prepare diligently to defend the deposition.

Here are five tips for defending the corporate representative deposition:

Place Your Objections on the Record as to the Defects in the Notice.

When defending the deposition, you should carefully review the taking-party’s notice to ensure it is in strict compliance with Rule 1.310(b)(6). The first defect the defending party is looking for is whether the witness is properly designated as a witness “with knowledge” of designated topics, as to opposed to the witness with “the most knowledge.” The second defect you should look for is whether the designated topics on which you must prepare the witness are “reasonably particular” so you can prepare the witness adequately on the topics.  Placing your objections to defects on the record early in a deposition may support a later argument (if you choose to make it) that the testimony provided should not be binding on the corporation.

Educate the Witness on What the Witness Did to Prepare on Each Designated Topic.

Under Rule 1.310(b)(6), it is the burden of the corporation named in the notice to ensure that the witness or witnesses the corporation appoints are educated adequately to speak to the topics designated in the notice.  This can require a lot of planning and work with the witness.  Make sure that the witness understands the overall dispute, the claims, the defenses, and the corporation’s position.  Also educate the witness that his or her personal observations or beliefs are not relevant and should not be shared.  Instead, the witness is acting as a “corporate spokesperson” and is answering questions only in that capacity.

Prepare the Witness to Speak as a “Corporate Spokesperson” Not as an Individual.

The key burden under Rule 1.310(b)(6) for the party defending the deposition is preparing the witness.  Under the rule, the corporation is obligated to prepare a witness that can service as the “voice” for the company’s positions in this case and the witness’s knowledge need not be personal.  The “corporate spokesperson” analogy is a good one because a corporate spokesperson reports for the corporation irrespective of the spokesperson’s individual positions, beliefs or observations.  The key in preparing the corporate representative to testify is to ensure the witness is familiar with key documents (including those the witness did not author) and understands the corporation’s major claims or defenses in the case.  The other key is to make sure the corporate representative understands his or her testimony is binding upon the corporation.  See Carriage Hills, 109 So.3d at 335.

Be Mindful of Allowing Your Witness to Testify in Both Corporate and Individual Capacities.

The defending party has to be aware of the hazards that may arise from allowing a witness to testify in both corporate and individual capacities within the same deposition.  In Carriage Hills, this was one of the key problems in the case. See Carriage Hills, 109 So.2d at 335-336. The party taking the deposition in Carriage Hills improperly noticed the witness with “the most knowledge” of certain topics and the condominium association appointed its president as the designated witness. The problem was the association president did not agree with the position of the majority of the board of directors and, therefore, when she testified she gave her individual positions and opinions.  When the association attempted to change its position later to contradict the prior testimony of its corporate representative, it created major issues over the whether the testimony was proper and binding in the first place.

The overarching point is that the defending party should avoid allowing its corporate representative from testifying in an individual capacity.[2] The exception to this approach would be to draw clear lines of when the corporate representative questioning has ended and the individual questioning has begun.

Whom You Select as the Designated Witness Matters.

Sometimes the party defending will select the designated corporate representative that is the most convenient or obvious person available, e.g., the president. Selecting the proper corporate representative requires deep thought, particularly in larger corporations in which the leaders’ views may be disparate.  This was exactly the predicament in which the condominium association in Carriage Hills found itself. See Carriage Hills, 109 So.3d at 335-36.  In Carriage Hills, the defending condominium association appointed its president as the corporate representative for the designated topics by the adverse party.  The problem was the president’s individual view did not align with that of the majority of the board of directors.

It, therefore, makes sense that the corporation appoint a representative that can speak to the corporation’s positions in a natural manner, where it would be difficult (as it was in Carriage Hills) to have a witness whose positions and opinions differ materially from the party the witness is representing.  The defending attorney, therefore, should perform some due diligence to make sure the witness or witnesses selected are a “good fit” to represent the corporation in its deposition.

Footnotes:

[1] The governing rule is Florida Rule of Civil Procedure 1.310(b)(6) and the seminal case interpreting the rule is Carriage Hills Condominium, Inc. v. JBH Roofing & Constructors, Inc., 109 So.3d 329 (Fla. 4th DCA 2013).

[2] The best approach to avoiding this testimony is preparing the witness in advance not to testify to individual positions or opinions. The defending attorney also might consider moving for a protective order in advance of the deposition, if he or she anticipates that this type of questioning will occur and cannot be resolved in advance of the deposition.

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