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

tarron@amystewartlaw.com

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

alan.jacobus@apjlegal.com

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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