It’s important to know what to ask and who to ask.
By Brandon Cook, JBA Commercial Litigation Section vice chair
The deposition of a corporate representative can be one of the most useful discovery tools available to litigators.
Florida Rule of Civil Procedure 1.310(b)(6) allows a litigant to depose a “public or private corporation, a partnership or association, or a government agency.” The rule was modeled after its federal counterpart: Federal Rule of Civil Procedure 30(b)(6).
It gives a party access to the collective knowledge of an entity rather than the limited knowledge of an individual.
The rule places specific burdens on both parties. In its notice of deposition, the deposing party must describe the areas of inquiry with “reasonable particularity.”
On the other hand, the deponent is tasked with providing one or more witnesses who will be sufficiently prepared to answer questions within the bounds of the noticed topics.
Notably, there is no requirement that the deponent produce the witness with the most knowledge concerning the noticed areas of inquiry.
Nor is there any requirement that the deponent have any independent knowledge related to the specified topics.
Rather, what the rule requires is that the corporate representative be prepared to provide complete, knowledgeable and binding answers based on information that is known or reasonably available to the corporation.
This has the effect of allowing the deposing party to obtain information from the corporation through a person serving as the voice of the entity.
When properly noticed and conducted, the testimony from a Rule 1.310(b)(6) deposition is considered testimony of the corporation itself and, as a result, is binding on the corporation.
But, questions arise if the deposing party inquires into areas not within the scope of its notice of deposition.
Can the corporate representative simply refuse to answer the question? Can the representative, if he or she knows the answer, decline to answer on the basis that the information is not known to the corporation?
Generally, the answer to both questions is no. The deponent is, assuming the questioning is relevant to the litigation, still required to answer.
However, the effect of such answers changes significantly.
Instead of answering on behalf of the corporation, the representative provides answers based on his or her own personal knowledge. And, because the deponent in this scenario is speaking on his or her own behalf, the deponent’s answers are not binding on the entity.
Nevertheless, the deponent’s testimony as to his or her individual knowledge may contradict the position of the entity or create unforeseen issues. Accordingly, counsel should be thoughtful when considering who should serve as the representative.
There are several considerations for selecting a representative. While the person with the most knowledge of the areas of inquiry may appear to be the best representative, that is not necessarily the case.
For example, if the person with the most knowledge does not totally embrace the corporation’s position, then selecting a different representative may be a wise choice.
Other factors that should be considered include the witness’s experience in litigation, the demeanor of the witness, the witness’s ability to devote the necessary time and energy to adequately prepare for the deposition and the witness’s personal knowledge of information within and outside the areas of inquiry.
It is critical for the party being deposed to make an informed decision when selecting the corporate representative. Sometimes the obvious choice may not be the best.
However, keeping the above information in mind will allow attorneys to put themselves in a position to provide the zealous advocacy their clients expect.
Brandon Cook is an associate attorney at Smith Hulsey & Busey with a focus on complex commercial litigation.