Feb 17 2012

How to prepare for a 30(b)(6) deposition as a corporate witness

Category: peopleUlrich Palha @ 11:17 am

Corporate Deposition

Patent litigation is on the rise, on average increasing 5.6 percent annually since 1991 [1], so there is a greater probability that the profitable company you work for is already, or will soon be, in a patent infringement lawsuit.

When this happens your company will typically receive a 30(b)(6) notice and will have to select witnesses for a corporate deposition so that the plaintiff’s attorneys may obtain discovery. Your corporation’s attorneys know that corporate witness selection is critical, that a good witness isn’t necessarily the person with the most first-hand knowledge[2], but also someone with better ability as a witness, more credible and articulate, and more comfortable with aggressive questioning[4] .

Witness selection is critical.[2]

If you meet these criteria, you may find yourself selected as 30(b)(6) witness. The rest of this article gives you a sense of what to expect in this role.

What to expect as a corporate witness

Before you were selected as a corporate witness you very likely assisted in document collection, where you were tasked with finding and submitting any documents relevant to the suit. These might have included emails, designs, use cases/user stories, contracts, and code.

After being selected, you will generally meet with attorneys representing your corporation one or more times to prepare for the deposition. They will typically give you a copy of the deposition notice (see sample deposition notice) that lists the topics that will be covered and will try to ascertain your knowledge or lack thereof. In the latter case, they may ask you to seek out the information by speaking to more knowledgeable employees and/or reviewing documents submitted. Note that you may be required to answer questions that are outside the scope of these topics[10].

They will also instruct you on how to best respond at the deposition.

Basic guidelines for responding at the deposition

It is important to remember that a 30(b)(6) deposition is not a conversation. Everything you say will be recorded by a court reporter, probably on audio and video too, will be on behalf of the corporation, not yourself, and could be used in court if the case goes to trial.

With this in mind you should try to apply the following guidelines:

1. Allow everyone speaking, especially the opposing attorney, enough time to complete speaking. Do not interrupt or try to finish their questions (an acceptable, if not common, practice in conversation).
2. Did you understand the question? If not, say so, ask for clarification of any ambiguities or for the question to be restated.
3. Do you know the answer to the question? If not, do not try to guess or repeat what someone else told you about the question (hearsay): say you don’t know.
4. Formulate an answer in your mind to just the question that was asked, without introducing any new, extraneous information. Take as much time as you need to respond; pauses do not show up on the transcript.
5. Keep your answer as short as possible without being evasive e.g yes, no, I don’t know, I don’t remember.
6. Even if you immediately know the answer, always pause before responding so that, if necessary, your attorney will have time to make an objection to the question.
7. When your attorney does object, listen carefully to the objection to get clues about what is wrong e.g. “Question is vague,” or “compound question”[7] . You will still have to respond after the objection, unless your attorney explicitly advises you not to answer.
8. Always tell the truth. Do not try to “protect” your company if that would involve telling anything other than the truth.

Examples:
Q. Do you know what time it is?
It’s 12:30pm and I am late for my doctors appointment, so can we wrap this up?.
Yes or No
Q. Do you usually come to work late?
Yes.
I don’t understand what you mean by late.
Q. Do you usually come to work after 9am??
No.
Q. What time do you usually come to work
9am.

At the deposition

Follow your attorney’s instructions on what to wear, typically a suit and tie.

You could be deposed for up to 7 hours on the record[3], which is easily 8-9 hours of elapsed time, so you should get a good night’s sleep before the deposition. Do not spend the night drinking or take any non-essential medication because you can be asked to reveal this and will be required to answer. Also, unless otherwise instructed, do not take any notes/documents to the deposition as you can be asked to reveal this and will be required to answer.

The deposition is frequently held at an attorney’s office. Attendees include your attorney(s), usually on your right, the plaintiffs attorney(s), usually on the left, the court reporter and the videographer. The atmosphere is not as formal as in an actual courtroom, but don’t let that fool you into taking it any less seriously i.e. say as little as possible, don’t make jokes on or off the record, suppress the desire to make conversation or be overly social etc.

As a corporate witness, your best strategy is to play a game of defense, not to play to win but to minimize your losses[5].

The opposing attorney’s job is to try to elicit information from you that will help advance their case. Your role is to truthfully provide just the information requested, not to help the opposing attorney by providing additional information, and not to try to make the case for your corporation. As a corporate witness, your best strategy is to play a game of defense, not to play to win but to minimize your losses[5].

Tactics the opposing attorney may use

The opposing attorney may use some tactics to get you to say what they want to hear or to get you to say more than you should so they can open up additional lines of questioning.

They could be very friendly off the record so that you may feel a greater obligation to help them on the record. Be polite, but not overly friendly, and say as little as possible[6].

On the record, they could try to make you say more by keeping silent after you finish, raising an eyebrow, cocking their heads, or using some other non-verbal communication to indicate that they expect more. Once you deliver your answer, do not let any of these tactics pressure you into saying more[6] .

They could appeal to your sense of importance:
“… after all, you are the Chief Engineer, or Vice President, surely a person in your role should know the answer to this question.”
If you don’t know the answer, say so: this is not an interview and there is no penalty for not knowing the answer to a question.

They may refer to a sentence or phrase in a document and ask you to comment on it. Always ask to see the document so that you do not have to rely on your recollection, if you have seen it before, or to understand the context behind the phrase or sentence, if you have not seen it before[5].

Resist the urge to say anything in anger, sarcasm, or out of frustration[8].

Some attorneys may intentionally, or unintentionally, say things that aggravate you. The longer the deposition goes on, the easier it will be for you to get tired and irritable. Resist the urge to say anything in anger, sarcasm, or out of frustration[8]. If you do get tired, or start to feel irritable, ask for a break.

Other things to Avoid

When you do go out on a break, do not discuss the case with your attorney unless you are explicitly instructed to otherwise. The opposing attorneys can, and often will, ask you what you discussed, and you will have to answer.

Before answering make sure all facts in the question are true. If not, correct them.
If you do not agree with the the terms used in the question, do not answer with a yes, or use them in your response: respond using your own terms.

Avoid closure questions:
Q. Have you described every document that was reviewed in that meeting 2 years ago?
Yes.
Those are all that I can think of at this time.

Do not use absolutes e.g. “I never come to work late,” or “I always comment my code,” and avoid superlatives[9] e.g. “Java is the best programming language.”

If you realize that one of your previous answers was inaccurate, let your attorney know during the break[6].
If you are caught in a inconsistency during testimony, do not panic[5]. Some attorneys will deliberately lead you to an inconsistency e.g. they might ask you about an event that happened in the past that you cannot recollect perfectly, then show you an email that differs from your response. In this case, carefully review the email, assess the reason for your inconsistency, and when you are ready either correct your original answer, or provide a reason for why the email was incorrect e.g. taken out of context as it does not include the entire email chain.

Conclusion

Being selected as a 30(b)(6) corporate witness is an important responsibility. Understanding that your role as a corporate witness is primarily one of defense, not offense, and mastering the basic deposition response skills through advance preparation with your attorney, will help you get through the deposition with minimal losses.

Do not follow any of the guidelines in this post without first consulting with your attorney (see disclaimer).

References/Further Reading

  1. 2008 Patent Litigation Study Retrieved Friday, February 17, 2012
  2. BEST PRACTICES FOR THE DEFENSE OF CORPORATE DEPOSITIONS Retrieved Friday, February 17, 2012
  3. Rule 30(b)(6) Corporate Depositions:Effective Defense Strategies Retrieved Friday, February 17, 2012
  4. How to Prepare for and Successfully Defend a Rule 30(b)(6) Deposition Retrieved Friday, February 17, 2012
  5. Deposition Preparation. Lessons from Gaston & Snow YouTube.com: Retrieved Friday, February 17, 2012
  6. Guide to Preparing for Your Deposition YouTube.com: Retrieved Friday, February 17, 2012
  7. Objections to the Form of a Question: A Partial List Retrieved Friday, February 17, 2012
  8. What Not to Do During a Deposition YouTube.com: Retrieved Friday, February 18, 2012
  9. Preparing for your deposition YouTube.com: Retrieved Friday, February 17, 2012
  10. Selecting And Preparing Corporate 30(b)(6) WitnessesRetrieved Friday, February 19, 2012

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