Is it me they want?

by | Apr 11, 2012 | Getting Paid, Litigation & Arbitration

If you’ve been sued, you likely received a subpoena for deposition during the litigation process.  A deposition gives the lawyer and the client their best opportunity to examine witnesses and gain a better understanding of the claims and defenses in a matter.  They can do so while gauging both the level of the witness’s knowledge as well as his or her demeanor and effectiveness as a witness.  If the subpoena is directed to a particular individual, it is that person that will need to appear.  However, if the  subpoena is directed to a company, the question of who needs to appear may not be so clear.

The rules of procedure in most states governing such depositions generally provide that when a party names a public or private corporation as a deponent, it must then describe with reasonable particularity the matters on which examination is requested.  The company so named then has an opportunity to designate one or more persons with knowledge on such matters and have them testify on its behalf.

This rule was designed to avoid what had been the all too common situation of taking a seemingly  endless stream of corporate representative depositions where each witness disclaimed any knowledge of the facts sought.  By describing exactly what the examiner wanted to know, the company being deposed could identify and produce its most knowledgeable representative.

Some companies have attempted to interpret this as a shield to protect potential witnesses from examination, understanding that the choice of who within the entity may be deposed is the  company’s alone to make through this internal designation procedure.  They would argue that the examiner can only notice the entity generally, after which it is the company’s sole decision as to whom to produce for the deposition.  But this interpretation has generally been rejected, particularly where discovery has otherwise indicated that an identifiable witness within the company may have the specific information the examiner is seeking.

The rule does provide protection to a company from fishing expeditions by overzealous or harassing opponents.  While an examiner is not mandated to follow the designation procedure and may name specific individuals within a company for deposition, if it is shown that such depositions  ceate a needless burden on the company, a court can require that the company designate that representative it concludes is the most knowledgeable in the areas of inquiry specifically described by the examiner.

Clearly, being aware of the current state of the law in this area can yield significant advantages.


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