30(b)(6) depositions in insurance coverage and bad...
TRANSCRIPT
30(b)(6) Depositions in Insurance Coverage and Bad Faith Litigation Preparing and Responding to Notices of Corporate Representative Depositions
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WEDNESDAY, MARCH 18, 2015
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Tarron Gartner-Ilai, Principal, Amy Stewart, Dallas
Alan P. Jacobus, Proprietor, Law Offices of Alan Palmer Jacobus, San Francisco
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Fed. R. Civ. P. 30 (b) (6) Deposition
and Trial Testimony in Coverage and
Bad Faith Litigation
Tarron Gartner-Ilai
Amy Stewart PC
5307 E. Mockingbird Lane, Suite 425
Dallas, Texas 75206
Telephone: 214-347-9397
www.amystewartlaw.com
Alan Palmer Jacobus
Law Offices of Alan Palmer Jacobus
555 California, Suite Number 4925
San Francisco, California 94104
Telephone: 415.685.0820
www.apjlegal.com
Presenter—Policyholder Side
Tarron L. Gartner-Ilai
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Presenter—Insurer Side
Alan Palmer Jacobus
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Introduction to the Topic
Corporate representative deposition (Fed. R. Civ. P. 30 (b) (6))
Insurance companies
Corporate policyholders
Third parties
Goals of deposition
Obtain information
Prepare for dispositve motions, settlement, trial
Bind party
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Why is This Topic Important?
A 30 (b) (6) deposition is the opportunity to
obtain the overall knowledge of a corporate
party
Failing to prepare to take or defend a 30 (b) (6)
deposition may irreparably harm a client’s case
Often the 30 (b) (6) deposition plays a crucial
role at trial
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The Rule: Fed. R. Civ. P. 30 (b) (6)
Notice or Subpoena Directed to an Organization. In its notice or subpoena, a party may name as the deponent a public or private corporation, [etc.] and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. A subpoena must advise a nonparty organization of its duty to make this designation. The persons designated must testify about information known or reasonably available to the organization. This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules.
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Policies Behind the Rule: Notes of
Advisory Committee on Rules—1970
Amendment The [rule] should be viewed as an added facility for discovery,
one which may be advantageous to both sides as well as an improvement in the deposition process. It will reduce the difficulties now encountered in determining, prior to the taking of a deposition, whether a particular employee or agent is a “managing agent.” ). [Citation omitted.] It will curb the “bandying” by which officers or managing agents of a corporation are deposed in turn but each disclaims knowledge of facts that are clearly known to persons in the organization and thereby to it. [Citation omitted.] The provisions should also assist organizations which find that an unnecessarily large number of their officers and agents are being deposed by a party uncertain of who in the organization has knowledge. [. . . .]
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Key Characteristics of the Rule
An entity’s deposition may be taken
Entity must designate a representative (the
“corporate designee”)
Designee must testify as to information known
or reasonably available to the entity
Entity is to be protected against serial,
cumulative, or duplicative depositions
Provides remedy for the “run-around”
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Procedure and Mechanics: The
Deposing Party
The noticing party must “describe with reasonable particularity the matters for examination . . . .”
With respect to properly and clearly noticed topics, the responding entity must designate a person who can provide information “known or reasonably available to the organization.”
No witness available on a topic?
Duces tecum demands
The responding entity may not be bound by any testimony not properly noticed
Best practices: Provide list of topics early
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Procedure and Mechanics—the
Responding Entity
Must designate a representative or representatives to provide information known or reasonably available to the entity Current versus former employee considerations
Person from outside of the entity
Two depositions of same witness?—30 (b) (6) and percipient
Failure to designate (and prepare) a qualified witness may result in a motion to compel and additional depositions
Best practice is a letter response to designations
Objections—Fed. R. Civ. P. 32 (d) Procedural
Substantive?
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Preparation for the Deposition:
Deposing Party
Carefully assess entire file, including discovery
received and pleadings
Elements of cause of action
Affirmative defenses
Prepare deposition outline before preparing
notice
Ensure notice includes topics clearly covering
all areas of intended examination
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Preparation for Deposition:
Responding Entity Carefully examine notice
Carefully examine entire file
Choose witness carefully
Deponent with personal knowledge is always best, if possible—e.g. supervisor
Experienced deponent
Witness preparation—Required
Meet with counsel
Review corporate documents
Interview others with knowledge of noticed topics
Know the case, inside and out
Fix previous, damaging testimony
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Preparing for Deposition:
Responding Entity
Personal knowledge of deponent not required, but preferred, when possible
Attempt to provide foundation (personal knowledge) of facts testified to
Especially important when entity wants witness to testify as 30 (b) (6) witness and trial witness
At trial, evidentiary requirements (including foundation and hearsay) apply. See Williams Advanced Materials, Inc. v. Target Tech. Co., LLC, 2009 WL 3644357 (W.D.NY. Oct. 28, 2009)
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Preparing for Deposition—
Responding Party: Practice Pointers
Prepare binders for witness with key documents for each deposition topic arranged by tab
Include any other key documents in binder
Only put documents in binder you have produced
or are willing to produce
No witness notes in binder—blank flags usually ok
Create summaries, spreadsheets, etc. of complex matters
Work with witness in preparation to familiarize the witness with the binder method
Be prepared to produce a copy of the binder, if asked, and you will be asked
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Conduct of Deposition:
Examination
Confirm knowledge of designation for all topics
Examining attorney should try to keep questions within
noticed topics (other than background, etc.)
Counsel should be prepared to link particular questions
to particular noticed topics
Although awkward, questions should be phrased as
“What did XYZ Corporation do on August 14?” as
opposed to “What did you do on August 14?”
Counsel should question witness on all important
documents
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Conduct of Deposition: Defending
Party
Usual objections apply (e.g. form, speculation,
asked-and-answered)
Defending counsel should object to all questions
of substance that are not within any noticed
topic
The proper procedure is to object, then instruct the
witness that the witness may provide any personal
knowledge, but is not speaking on behalf of the
entity
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Post-Deposition Considerations
Read and sign procedure
Motion to compel (noticing party)?
Motion for protective order (defending party)?
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Use of the 30 (b) (6) Deposition
In Further Proceedings
Admissions
Making the most of “I don’t know . . .”
Demonstrative exhibits
Impeachment
Of deponent
Of other witnesses
Of corporate statements in documents
Entity’s use of deposition at trial may be limited
Foundation and hearsay issues
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Special Considerations in Insurance
Coverage and Bad Faith Claims
Underwriting versus claims handling functions
at insurance companies (two witnesses?)
Familiarity with the policy and all available
underwriting / claims materials
Familiarity with all relevant procedures
Bad faith claim may create an implied waiver of
some privilege and work product protections
Protection of other policyholders’ information
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Wrap-Up and Questions
Prepare, prepare, prepare
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