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Avoiding Ethical Pitfalls in the Deposition Process

Brant D. KahlerBrownWinick

666 Grand Avenue, Suite 2000Des Moines, IA 50309-2510

Telephone: 515-242-2430Facsimile: 515-323-8530

E-mail: kahler@brownwinick.com

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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, a partnership, an association, a governmental agency, or other entity 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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“In its notice or subpoena…”

• Rule 30(b)(6) applies to party and non-party entities.

• For party entities, a Rule 30(b)(6) deposition is established through a Notice of Deposition.

• For non-party entities, a Rule 30(b)(6) deposition is established through a Subpoena.

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“… a party may name as the deponent a public or private corporation, a partnership, an association,

a governmental agency, or other entity…”

• Although only corporations, partnerships and associations are listed, through the language “or other entity,” Rule 30(b)(6) applies to all recognized legal entities, including limited liability companies, limited partnerships and entity forms recognized in other countries.

• The phrase “governmental agency” has been interpreted broadly to allow Rule 30(b)(6) to apply to all forms of governmental entities and agencies.

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“and must describe with reasonable particularity the matters for examination.”

• The subject matters about which the deposing party wishes to conduct the deposition must be “described with reasonable particularity” in the Notice of Deposition or Subpoena.

• If not:– The deponent entity may designate a large number of

corporate representatives; or– The deponent entity may move for a protective order

or to quash the subpoena to force the Notice of Deposition or Subpoena to comply with Rule 30(b)(6).

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“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…”

• Officers and Directors:– Generally easy to ascertain.– Deposition testimony is binding on entity and

admissible for all allowed purposes at trial.– Required to attend deposition in district where

litigation is pending, absent other agreement by the parties.

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“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…”

• Managing Agents:– Difficult to ascertain, and oftentimes point of contention between

parties.– Factors:

• (1) whether the individual is vested with general powers allowing him or her to exercise judgment and discretion in corporate matters;

• (2) whether the individual can be relied upon to give testimony, at the request of the entity, in response to the demand of the examining party;

• (3) whether any person or persons are employed by the entity in positions of higher authority than the individual designated in the area regarding which information is sought by the examination;

• (4) the general responsibilities of the individual respecting the matters involved in the litigation; and

• (5) whether the individual can be expected to identify with the interests of the entity.

– Otherwise treated in same manner as Officers and Directors.

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“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…”

• Other persons who consent to testify on behalf of the entity:– Absent a subpoena, can only be compelled to attend

deposition voluntarily.– If subpoena becomes necessary, deposition must be

taken within 100 miles of the deponent’s “residence, place of business or location where deponent was served with subpoena.”

– Like Officers, Directors and Managing Agents, testimony is binding on entity and may be used for all admissible purposes at trial.

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“This paragraph (6) does not preclude a deposition

by any other procedure allowed by these rules.”

• Rule 30(b)(6) is not the sole method available for deposing entity representatives.

• If a particular person is not designated by the deponent entity, any other entity representative can be deposed through a subpoena in accordance with the general scope of allowable discovery and depositions.

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Common Rule 30(b)(6) Issues:1. Former entity representatives:

– Not governed by Rule 30(b)(6).– Rule 30(b)(6) only applies to representatives employed by the

entity at the time the designation is made.

2. Deposition questions beyond the scope of the designated subject matter areas:– Such questions are generally allowed. See e.g., American

General Life Ins. Co. v. Billard, 2010 WL 4367052, *3-4 (N.D. Iowa 2010).

– If attorney for the deponent entity wishes to object, deposition should be terminated and attorney should immediately move for a protective order.

– Objecting attorney should not allow the deposition to continue and instruct the deponent to not answer certain questions. See Fed. R. Civ. P. 30(c)(2). In that situation, the objecting attorney will likely face sanctions. See Fed. R. Civ. P. 30(d)(2).

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Iowa R. Civ. P. 1.707(5)

• A notice or subpoena may name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the witness will testify. A subpoena shall advise a nonparty organization of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization. This rule does not preclude taking a deposition by any other procedure authorized in the rules in this chapter.

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The Ethics of Witness Preparation

• Preparation v. Coaching– There is a fine line between preparing a witness for a

deposition to allow the witness to testify in an accurate and articulate manner, and coaching a witness to testify in a manner that is false, partially false or that withholds the truth.

– The former is greatly encouraged and is oftentimes necessary.

– The latter is unlawful and can lead to serious consequences for the deponent and the preparing attorney.

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Relevant Ethical Rules

• ABA Model Rule 1.1 Competence.

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.– See also Iowa R. Prof. Con. 32:1.1.

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Relevant Ethical Rules

• ABA Model Rule 3.3 Candor Toward The Tribunal.(a) A lawyer shall not knowingly: *** (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.– See also Iowa R. Prof. Con. 32:3.3(a)(3).

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Relevant Ethical Rules

• ABA Model Rule 3.4 Fairness To Opposing Party And Counsel.A lawyer shall not: *** (b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law; or *** (f) request a person other than a client to refrain from voluntarily giving relevant information to another party…– See also Iowa R. Prof. Con. 32:3.4(b) and (f).

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Witness Preparation “Do’s”:

• DO help the deponent understand the deposition process, including an explanation that the deponent’s testimony will be given under oath and subject to penalty of perjury.

• DO explain the legal grounds and bases for the lawsuit.• DO go through questions that the deponent will likely be

asked during the deposition.• DO assist the deponent with recalling details of events

and familiarity with important documents.• DO instruct the deponent to listen to questions carefully

and answer only the question being asked in as concise a manner as is possible.

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Witness Preparation “Don’ts”:

• DON’T fail to adequately prepare a deponent for his or her deposition.

• DON’T coach the deponent to be combative or evasive during the deposition.

• DON’T improperly influence or attempt to modify the deponent’s testimony to better support the deponent entity’s overall position in the lawsuit.

• DON’T coach or ask the deponent to make false statements during the deposition.

• DON’T coach or ask the deponent to withhold responsive information to questions asked during the deposition.

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After the Deposition Begins...• There is a split of authority with regard to whether it is proper for the

deponent’s attorney to discuss the deponent’s testimony with the deponent after the deposition begins.

• Some states, such as Alabama, Delaware, New Jersey, South Carolina and Tennessee, prohibit all communication between the deponent and the deponent’s lawyer during the pendency of the deposition in their respective rules of civil procedure.

• Other states, such as Texas and Washington, prohibit such communication during the deposition itself, but allow such communication at breaks or recesses in their respective rules of civil procedure.

• Additionally, in specific lawsuits, the presiding Judge or Magistrate Judge may issue an order that limits the communication between the deponent and the deponent’s lawyer during the pendency of the deposition.

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After the Deposition Begins...• In all other states, including Iowa, where the court has not ordered

otherwise, the only relevant authority is contained in Fed. R. Civ. P. 30:– Fed. R. Civ. P. 30(c)(2) provides, in relevant part, that “An objection

must be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).”

– Fed. R. Civ. P. 30(d)(2) provides that “The court may impose an appropriate sanction – including the reasonable expenses and attorney’s fees incurred by any party – on a person who impedes, delays, or frustrates the fair examination of the deponent.”

– See also Iowa R. Civ. P. 1.708(2).• Additionally, the ethical rules discussed with regard to witness

preparation continue to apply.

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Questions?

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