Trials PAC Training Session to Walmart — 30(b)(6) Witness Depositions: Picking and Preparing the Right Person to Stand up for the Company and Cause the Plaintiff to Stand Down
By: Bryan L. Paschal from Rivero Mestre LLP (Miami, FL)
On April 4, 2016, in Bentonville, Arkansas, the NAMWOLF Trials Practice Area Committee (the “Trials PAC”) presented to Walmart’s legal department a continuing legal education course entitled “30(b)(6) Witness Depositions: Picking and Preparing the Right Person to Stand Up for the Company and Cause the Plaintiff to Stand Down.” During the CLE, members of the Trials PAC role-played in four hypothetical fact patterns to demonstrate best practices and pitfalls in selecting and preparing Rule 30(b)(6) witnesses. Below, we’ll discuss a few of the substantive takeaways from that CLE.
Designating the Rule 30(b)(6) witness. An effective witness will advance your case, while an ineffective witness will set it back. Rule 30(b)(6) requires the named organization to designate “one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf . . . .” Courts have found that a corporation “has an obligation to make a conscious good faith endeavor to designate the persons having knowledge of the matters sought . . . .” Dey, L.P. v. Eon Labs, Inc., 2005 WL 3578120, at *6 (C.D. Cal. Dec. 22, 2005).
In addition to what the rule requires, as a strategic matter, consider the proposed witness’ communication skills, emotions toward the subject matter, disposition toward testifying, and whether the witness is:
· Authentic and believable
· Proud, ashamed, indifferent, or anxious when discussing the subject matter
· Scared, angry, or indifferent about testifying
· A shy, arrogant, confrontational, or confident person
Be sure to thoroughly review a proposed witness’ social media posts—a potential gold mine for opposing counsel. A compromising picture or post on social media can seriously damage the credibility of a designee, and it’s better to identify this problem before the individual is designated as the corporate representative.
Preparing the Rule 30(b)(6) witness. A Rule 30(b)(6) deposition is not supposed to be “a memory contest,” but the “deponent must be both knowledgeable about a given area and prepared to give complete and binding answers on behalf of the organization.” Bank of New York v. Meridien BIAO Bank Tanzania Ltd., 171 F.R.D. 135, 150 (S.D.N.Y. 1997). The witness has a duty to review information “reasonably available, whether from documents, past employees, or other sources.” Id. at 151.
During the first meeting with the witness, counsel should explain the deposition process, review the deposition notice, collect information from the corporation, and provide the witness with a binder of the documents that are necessary for the witness to review. During the second meeting, practice questions and answers to improve the witness’ skill as a testifier and to assess the witness’ knowledge of the designated topics. Here are a few tips on how to adequately prepare the witness:
· Keep the first meeting short—don’t overwhelm the witness
· Remind the witness of the importance of telling the truth
· After the first meeting, arrange for the witness to interview persons with knowledge of the subjects on which the witness has been designated
· Review the documents that you think the other side will want to talk about and those that you want to talk about during “cross”
· Explain why certain objections are made during the deposition
· Remind the witness that their answer will bind the corporation
It’s also helpful to work with the witness to create a “witness box.” The witness box is a visual tool that helps the witness understand which topics they will be covering, and what topics other witnesses are responsible for. It should look something like this:
During the deposition. Tell the witness what will happen. It is important for the witness to understand that they are in control. It’s okay for the witness to take a break when needed (as long as a question is not pending), and to think before answering. Rapid-fire questions do not require rapid-fire answers. Remind the witness that they should:
· Answer only the question that is asked
· Wait until the question is complete before responding
· Avoid saying “I don’t know” to a question on which the witness has been designated. Instead say, “I’m sorry, I did not anticipate that you would ask that question. I will have to get that information and get back with you”
· Listen to the objections
· Redefine difficult questions: “as I understand your question, you’re asking me . . . .”
· Never speculate
Preparing for and testifying at trial. Leading up to trial, the witness should be thoroughly familiar with all depositions (especially their own) and other discovery so that their answers are consistent with the evidence. Also, it’s important to go over the appropriate demeanor and appearance for the witness while they’re testifying in front of the jury. Here are some key points to prepare the witness for testifying at trial:
· The witness should be prepared if they’re called as an adverse witness during the plaintiff’s case-in-chief
· Have another attorney do a practice examination of the witness before trial
· Make sure the witness is prepared for the immediate fastball question
· Remind the witness not to be confrontational with opposing counsel
· The witness should not wear any distracting jewelry or clothes
Bryan L. Paschal is an associate with Rivero Mestre LLP. His practice focuses on complex commercial litigation, securities, insurance coverage, and other commercial disputes.