How Do You Depose an Entity?

Depositions are like interviews. Except there’s a court reporter there to take down all the questions and answers.

Depositions are set up by sending a notice of deposition to a party to the lawsuit or by serving a subpoena on a non-party.

It’s pretty easy to conceptualize when individuals are being deposed. But what happens when you want to depose a corporation or city or school district?

As they say: There’s a rule for that…. Specifically Court Rule 30(b)(6).

We start the process by sending a list of topics the deposition is going to cover to the attorney for the entity. For example, topics may include:

* What happened before the fall

* What caused the fall

* Safety policies

* Employee training

* Maintenance records

* Investigation of the fall

* Similar falls

* Insurance coverage

The purpose of sending the list is to let the entity know what information it needs to be prepared to provide.

The entity gets to choose who will testify for it. It may designate:

One witness for all topics;

Multiple witnesses, each covering different topics; or

Officers, directors, managers, employees, former employees, or even non-employees if necessary.

The critical point is that the witness is speaking for the entity, not merely from personal knowledge.

This is the most important part of the process:

The entity must make a good-faith effort to educate its designee regarding information reasonably available to the organization.

A witness cannot simply appear and repeatedly say "I don't know" if, in fact, the information is available to the entity.

The entity must investigate all the topics and prepare the witness to testify about them. Part of this involves reviewing:

* Documents

* Emails

* Records

* Policies

* Prior testimony

* Information possessed by current employees

* Information possessed by former employees when reasonably obtainable

It’s a duty to present the organization's "collective knowledge."

That means the witness testifies about the entity's knowledge, positions, and information (versus what they personally know or have observed). Even if the witness didn’t have any personal involvement they still may (and must) testify regarding the organization's knowledge.

I’ve written this kind of like only one person is going to testify for the entity. That isn’t always the case. The entity can produce multiple witnesses to address different topics within the list the entity was given.

Everything the witness says can be used against the entity. That includes both what they say in the affirmative. And also what they fail to say when asked.

Here’s what I say when clients are getting ready for their depositions:

* Tell the truth

* Answer the question that’s being asked

* If you don’t know, can’t remember or aren’t sure, say those things

That’s just fine for individuals. But “I don’t know” is a red flag during an entity’s deposition. Entities have a duty to make sure witnesses are prepared.

Saying things like I don’t know because I wasn’t there, I’m not sure because I didn’t review the prior manager’s file or I don’t know because I’m not an engineer put the entity in extreme jeopardy.

There are serious consequences for the entity if it sends an unprepared witness.

We handled a case against a hospital. It sent a witness from the business department. The witness said she didn’t know what caused the patient’s injuries because she wasn’t a doctor.

The court took a dim view of her answer and the hospital’s failure to either prepare her or send someone who could answer medical questions. (After all, it was a hospital.) It entered an order preventing the hospital from calling any witnesses at trial to talk about medical causation.

#deposition

#30(b)(6)