Five Tips for Taking a Corporate Representative Deposition
One of the most effective tools for a party taking discovery in Florida state court is taking the deposition of the corporate representative of a party or non-party corporate entity. This form of deposition allows a party to avoid having to depose numerous witnesses to determine a corporation’s position on various issues in the case. In this post, I outline five tips for taking a corporate representative deposition as follows:
Notice the Deposition Properly.
One of the most frequent errors in taking the corporate representative deposition is non-compliance with Rule 1.310(b)(6) in preparing the notice of taking deposition. The first mistake that many attorneys make is designating in the notice “the corporate representative with the most knowledge of” certain topics. This is incorrect form because the noticed corporation retains discretion to appoint any witness it wants to appoint, regardless of the witness’s personal knowledge, as long the corporation adequately prepares the witness to testify on the designated topics. See Carriage Hills Condominium, Inc. v. JBH Roofers & Constructors, Inc., 109 So.3d 329, 334-35 (Fla. 4th DCA 2013).
A second frequent error in noticing corporate representative depositions is not providing “reasonable particularity” for the designated topics, which is what Rule 1.310(b)(6) requires. When topics are not designated with the requisite particularity, the notice is defective and may create issues as to whether the testimony is binding on the corporation. See Carriage Hills, 109 So.3d at 336-337.
Ask the Witness Separately What He or She Did to Prepare on Each Designated Topic.
It is a common practice for attorneys to ask a witness early in a deposition what the witness did to prepare for the deposition, which usually results in a generic, low-value answer about having reviewed documents and having met with counsel. In a corporate representative deposition, however, the attorney taking the deposition should separately ask the witness the same question as to each designated topic set forth in the notice. Because in a corporate representative deposition, the witness may have varying degrees of personal knowledge, if any, on the designated topics. Learning what the witness read and did to prepare on each topic specifically may lead to important discovery, including the identification of important witnesses and documents, and enable the questioning attorney to understand the witness’s foundation for his or her knowledge.
Avoid Consolidating the Witness’s Capacity as a Corporate Representative with His or Her Individual Capacity in the Same Deposition.
A common mistake in taking corporate representative depositions is consolidating the corporate representative deposition with the witness’s individual deposition. This creates problems, some with potentially significant and regrettable consequences. The problem typically arises in the scenario where the party taking the deposition issues two notices for the same day for both the corporate representative and the individual witness who happens to be appearing as the corporate representative. In this situation, either the taking or defending attorney often will offer to consolidate the two depositions into one to save time.
The major problem here is now it is impossible to determine in which capacity (corporate or individual) the witness is speaking when answering a given question. See Carriage Hills, 109 So.3d at 336-37. Further, this can completely undermine the whole point of securing binding testimony on behalf of a corporation. As such, you should avoid consolidating the depositions into one with a limited exception. If you want to first take the corporate representative deposition and make clear on the record the capacity of the witness and then when the corporate testimony has concluded, and you have made clear on the record, that you are now shifting to ask questions to the witness in his or her individual capacity, only then would it be acceptable to consolidate the two depositions into one.
Make Sure Your Questions Fall Squarely Within the Designated Topics in the Notice.
During a corporate representative deposition, it is easy to transition into areas not designated in the notice, sometimes intentionally. Be careful about this because deposition topics that are not designated with reasonable particularity in the notice are not considered binding upon the corporation. Therefore, it is important during the deposition to refer back to the designated topic list to ensure that you stay on task. When the witness goes astray, you may say, for example, “I appreciate you sharing that information, but I want to stay on task with the specific topics that we have identified here in our notice.” This might make the deposition seem more mechanical than the usual ebb and flow of an individual’s deposition, but it likely will make for a cleaner transcript on the corporation’s binding testimony that matters.
Ask Questions About the Corporation’s Concessions, Positions, and Opinions.
When taking the corporate representative’s deposition, your main goal is to gain an understanding of and lock in the corporation’s position on key facts and issues in the case. This information is often critical for building your case and preparing for trial. You, therefore, should consider asking these questions on the key facts and issues: 1) Does the corporation concede X?; 2) Is it the corporation’s position that Y?; and 3) What is the corporation’s opinion about Z? Following this litany will help you distill important information that requires the representative to outline the corporation’s concessions, positions and opinions so the answers are binding upon the corporation. See Carriage Hills, 109 So.3d at 334-35.
Following these five tips will make you more prepared and effective in taking a corporate representative deposition. They will make you more conscious of some of the hidden issues that lurk when Rule 1.310(b)(6) is not strictly followed.
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). As Rule 1.310(b)(6) is modeled after Federal Rule of Civil Procedure 30(b)(6), these tips also may apply in federal court.