30(b)(6) Depositions in Insurance Coverage and Bad Faith Litigation Preparing and Responding to Notices of Corporate Representative Depositions

Transcription

1 Presenting a live 90-minute webinar with interactive Q&A 30(b)(6) Depositions in Insurance Coverage and Bad Faith Litigation Preparing and Responding to Notices of Corporate Representative Depositions WEDNESDAY, MARCH 18, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Tarron Gartner-Ilai, Principal, Amy Stewart, Dallas Alan P. Jacobus, Proprietor, Law Offices of Alan Palmer Jacobus, San Francisco The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 10.

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5 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 Telephone: Alan Palmer Jacobus Law Offices of Alan Palmer Jacobus 555 California, Suite Number 4925 San Francisco, California Telephone:

6 Presenter Policyholder Side Tarron L. Gartner-Ilai 6

7 Presenter Insurer Side Alan Palmer Jacobus 7

8 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 8

9 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 9

10 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. 10

11 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. [....] 11

12 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 12

13 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 13

14 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? 14

15 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 15

16 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 16

17 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 (W.D.NY. Oct. 28, 2009) 17

18 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 18

19 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 19

20 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 20

21 Post-Deposition Considerations Read and sign procedure Motion to compel (noticing party)? Motion for protective order (defending party)? 21

22 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 22

23 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 23

24 Wrap-Up and Questions Prepare, prepare, prepare 24