CAN I GET A WITNESS?
Preparing for and successfully defending depositions of corporate representatives, former employees, and current employees
Byrons South End
101 W. Worthington
Charlotte, NC
October 5, 2016
CAN I GET A WITNESS
Taking and Defending Corporate Depositions in North Carolina
Agenda
I.Depositions of Current Employees
A.Preparing the witness to testify
B.The Five Guidelines
C.Privilege issues
II.Former employees
A.Scope of privileges
B.Preparing the former employee
C.Compensating the former employee
III.Rule 30(b)(6) Depositions of Corporate Representatives
A.Selecting the best corporate representative
B.Responding to the 30(b)(6) Notice of Deposition
C.Other Issues
ABOUT THE PRESENTERS
Daniel DuPré is currently an Associate General Counsel with Compass Group USA, Inc. located here in Charlotte. His responsibilities include overseeing the team of legal professionals that handles all employment related legal matters as well as commercial litigation for the Company. Prior to Dan joining Compass in 2012, Dan was an in-house with Bank of America. Before that, Dan was an associate with Smith, Currie & Hancock in Atlanta where he practiced in the areas of labor and employment law. He is a member of the Georgia Bar and a graduate of Washington and Lee University and Washington and Lee University School of law.
C. Bailey King, Jr. is a partner and member of the Litigation Group for the Charlotte office of Smith Moore Leatherwood, where he concentrates on complex business disputes and commercial litigation. Mr. King handles intellectual property matters, investment and security disputes, antitrust matters, and class actions. He is experienced in litigating matters in the North Carolina Business Court as well as federal courts throughout North Carolina and elsewhere. Mr. King has been recognized for his skills in commercial litigation in The Best Lawyers in America, North Carolina SuperLawyers, and Business North Carolina’s Legal Elite. Mr. King earned his B.A. from Wofford College, where he graduated summa cum laude and was inducted into Phi Beta Kappa, and he earned his law degree from the University of North Carolina, where he graduated with high honors and was inducted into the Order of the Coif. He can be reached by phone at 704-384-2616 and by e-mail at .
John W. Reis is a partner and member of the Litigation Group for the Charlotte office of Smith Moore Leatherwood, LLP. He is a litigator and trial attorney focusing primarily on large property subrogation losses and secondarily on commercial litigation. He is licensed to practice in Alabama, Florida, North Carolina, and Tennessee. Mr. Reis earned his A.B. in 1988 from Duke University and his J.D., cum laude, in 1992 from the University of Miami School of Law where he served as Executive Editor of the University of Miami InterAmerican Law Review and was a member of the Moot Court Board. He can be reached at direct phone: 704-384-2692, fax: 704-3842939, email: .
Fred M. Wood, Jr. is a partner and member of the Litigation group for the Charlotte office of Smith Moore Leatherwood LLP, where he concentrates on complex business and commercial litigation and product liability, among others. Mr. Wood handles cases involving unfair business practices and methods of competition, the North Carolina Trade Secrets Protection Act, securities class actions, telecommunications industry disputes, computer software agreements, toxic torts, and orthopedic fixation devices. Mr. Wood earned a his B.A. in 1986 from the University of North Carolina at Chapel Hill, his M.B.A. in 1991 from Wake Forest’s Babcock School of Management University, and his J.D. in 1991 from Wake Forest University School of Law. He can be reached at phone: 704-384-2646, fax: 704-384-2933, email: , website:
CAN I GET A WITNESS?
Corporate Depositions in North Carolina
Introduction
Deposing a person. It sounds like bringing someone down from the throne. In a way, this is correct. A witness who is deposed rarely improves the case from what it was before the deposition. More often, the deposition provides the opponent with yet another point of attack. Proper preparation is the key to minimizing the damage your opponent seeks to inflict and maximizing your ability to make your own headway when it is your turn.
The function and significance of depositions cannot be overstated. This was noted in the celebrated ruling in GMAC Bank v. HTFC Corp., found at in which Judge Eduardo Robreno of the Eastern District of Pennsylvania sanctioned both a defendant witness and his defense attorney for their conduct during a deposition:
More than 98% of all civil cases filed in the federal courts result in disposition by way of settlement or pretrial. See Admin. Office of the U.S. Courts, Judicial Business of the United States Courts: 2006, Table C-4A (stating that only
1.3% of all civil cases in U.S. district courts reached trial in 2006), Very often, these results turn on evidence obtained during depositions. Thus, depositions play an extremely important role in the American system of justice. Although the Federal Rules of Civil Procedure inform the procedures to be followed and the duties and rights of parties, witnesses, and counsel during and in connection with depositions, the rules are largely self-executing. Depositions usually occur at a lawyer’s office, outside the view of the public and without judicial supervision. Although, in appearance, more informal than a court proceeding, they are an integral part of the Court’s procedures and the staple of modern litigation. For the process to succeed, it is essential that the parties, attorneys, and witnesses participating in depositions conduct themselves with civility and decency.
I.Depositions of Current Employees
A.Preparing the witness to testify
"Confidence, like art, never comes from having all the answers; it comes from being open to all the questions." - Earl Grey Stevens
"Only the man who can relax is able to create,
and ideas reach his mind like lighting." - Cicero.
The idea of allowing an opposing attorney to let loose your witness can be a scary one, not just to the witness but also to the defending attorney. It can feel like losing control. As noted above, it is rare that the deposition of your witness will improve your case. However, with proper preparation, potential damage can be minimized and your witness can actually gain a sense of control and power over the case.
Many attorneys have a laundry list of “rules” for what to do and what not to do during a deposition when preparing a witness. Having too many so-called rules, however, can overwhelm and confuse the witness. The goal is to make sure the witness gives truthful, accurate answers that are difficult to impeach. Toward that goal there is only one rule: Be honest. The big problems will be handled by following that rule. Additional guidelines to reaching that goal can be boiled down to five that are easy to remember, especially with this mnemonic: Listen U, it’s a D[e]PO.
B.The Five Guidelines: (Listen U, it’s a DePO!)
Listen
Understand
Dictate
be Personal
be Objective
1.Listen
When a question is posed, the witness should listen carefully, actively, and respectfully to the specific question asked. Listening in a deposition requires waiting, allowing the questioner to finish the question. When a question is posed in a conversation, the natural tendency is to answer quickly or even before the question is asked. Tell the witness that this is not a conversation. This is the process of building a transcript that will last far longer than the case itself ever will. Other tips in the listening process:
-Keep good posture, which exudes and enhances confidence
-Keep eye contact with the questioning lawyer
-Minimize gestures or facial expressions
-Let the lawyer finish the question
-Don’t look to your attorney for the answers: Let the witness know that once the deposition begins, you basically become a potted plant, with the exception of limited use of objections
-An objection can sometimes be a clue
Objection or no objection, the witness should think, “Stop!” if feeling the inclination to talk over the attorney. Stopping helps the court reporter. It also gives the witness’s attorney time to raise an objection to the form of the question, something that should be a signal to the witness that there is something wrong with the question.
After listening, do not answer the question yet. There is another step.
2.Understand
Be sure you understand the question before you answer. Just because the attorney might have a stentorian voice does not make it a good question or even an understandable one. The question might have nuances with which the witness is unfamiliar, uncertain, or uncomfortable. It is perfectly fair to tell the attorney you are not sure you understand the question and ask that it be rephrased. The witness should consider the following before feeling comfortable enough to answer:
-Does the question make sense?
-Did the lawyer use terms or statements about which you are uncertain?
-Did the lawyer re-state something you said inaccurately?
-Did you read and understand the documents the lawyer showed?
-If a hypothetical is posed, are you qualified to actually answer it?
-When in doubt, ask for a rephrase, but be mindful that doing so too often can have downsides if it is a videotaped deposition
- Sub-pointer: Gotcha Questions
Many attorneys are expert at asking seemingly innocent questions with a hidden trap. Here are some examples and how to deal with them.
“Would you agree that …”: A witness should never to say “yes” to such a question if the witness does not agree 100 percent. The witness should listen very carefully to everything that follows “would you agree that” to make sure everything that follows is accurate. If there is any portion of the question to which the witness has doubts or disagrees, the witness may say, “No, not entirely,” or “No, I don’t agree with that 100 percent,” or “No, not the way you phrase it.” That approach, however, allows the lawyer to then press forward and ask which portion the witness does not agree with, so the witness should be prepared to answer that question as well. To avoid this back and forth, it can be more effective for the witness to simply re-phrase the question that the attorney asked and phrase it in a way the witness can accurately answer and then to answer that re-phrased question.
“Would it shock you if …” or “Would you be surprised to learn …”: The witness should not assume that what the lawyer is positing it true. One approach to responding to such a question is to say, “I don’t understand what you mean by ‘would you be surprised.’ Can you rephrase the question?” But this could invite a back and forth; the lawyer might say, “I don’t know what is unclear about what I said. I am telling you that [such and such] occurred and I am asking if you knew that.” The witness may the tarry with: “I do not know that to be a fact” if the witness had not heard the statement, or “I was told that after the incident occurred but did not know it at the time.” Again, to avoid this back and forth, it can be more effective for the witness to simply re-phrase the question that the attorney asked, framing it in a way the witness can accurately answer and then answering that re-phrased question under the witness’s own terms.
“Why did __ tell you to do that?”: An appropriate response is: “I cannot speak for ___.” There is no reason to volunteer this statement, however, “You would have to ask ___.” It may be that the other person cannot be asked that question because he or she is dead or otherwise unavailable.
“Why didn’t you …” or “Wouldn’t it have been a better practice to have …?” or “If you had to do it over again, would you do anything differently?”: The witness should be wary of this potential trap. A “yes” or “no” here can have very significant, unintended consequences down the road. Again, to avoid this back and forth, it can be more effective for the witness to simply re-phrase the question that the attorney asked, framing it in a way the witness can accurately answer and then answering that re-phrased question under the witness’s own terms. A legitimate response is: “There is no way to go back in time and there is no way recreate the exact same circumstances in the future, so it is really impossible for me to be able to answer that question sitting here today.” The lawyer may persist: “I understand, but what about now, looking back, would you do it again exactly the same way?” A legitimate answer is: “It is impossible to go back in time. All I can do is recall what happened and give you the facts the best I can remember.” The lawyer may ask, “I understand we cannot go back in time, but we can go forward, so in the future would you do it again if you were in the same circumstances?” A legitimate answer is: “There is no way to recreate the exact same circumstances in some hypothetical future, so it is impossible for me to answer that question yes or no. All I can tell you for certain is that I did my very best to do what I thought was right at the time.”
“Tell me all the facts that support your contention that …” : This is the technique of confronting the witness an allegation in the Complaint or an affirmative defense in an Answer or a statement in an interrogatory and trying to pressure the witness into giving every factual and legal basis in support of it. There is nothing wrong with the witness saying, “That was prepared with help by my attorney, so that is not something I would be able to answer as a lay person sitting here today with total completeness. I can tell you some things I understand that might relate to that statement if you want to know what I personally know, but I probably cannot tell you each and every single fact that relates to that allegation.” The questioning attorney should eventually focus not on what is in the document but what facts the witness actually knows and recalls.
3.Dictate
The word “dictate” has more than one meaning, just as the word “depose” does. To depose someone can mean to bring down a king or dictator. In this context, the word “dictate” is intended to have two meanings: speaking precisely and taking control.
- Speaking Precisely
Speaking precisely means thinking about the question and dictating the answer as if speaking into a Dictaphone for someone else to type into the written word. That does not mean speaking in the tone of a robot, but it does mean being very careful about the words being used. When the deposition is over, what will be created is not merely a dialogue, but a hard, cold transcript. The transcript will last far longer that the memories of the participants and what they think was said. With that in mind, dictating by speaking precisely should involve these principles:
-Resist sarcasm
-Resist filler words or phrases, e.g., “basically,” “you know,” “like,” “okay,” “kind of,” “sort of,” “I guess,” “technically speaking,” “to be honest with you,” “quite frankly,” “with all due respect”
-Resist filling in the lawyer’s silent pause
- Taking Control
Dictate also connotes taking control. We usually think of the questioning lawyer as the one taking control. But it is really the witness who controls the testimony. Dictating in this sense empowers the witness. If the witness has a story to tell, it is sometimes good to simply tell it, on the witness’s own terms and in a way that enhances the ultimate goal of giving truthful, accurate answers that are difficult to impeach.
Most attorneys actually set up their questions in a way that will empower the witness, if witness so chooses. For example, the questions will often be open-ended, in the hope that the witness will offer a golden nugget that the lawyer did not expect. These are questions such as:
-“Tell me everything you recall about the event”
-“Is that everything that happened that day?”
-“What else happened?”
-“What happened next”
-“Tell me about that”
-“Would anything refresh your recollection?
These are not to be feared and can actually be opportunities to tell your story exactly the way you want to tell it
The opposite approach, and lawyers often take both approaches, is to ask a question that is intended to call only for a yes or no answer. In fact, the lawyer may insist that simply a yes or no will do. The witness should know to be wary of this technique as well. Just as in life, most answers in a deposition will not call for simply a yes or a no answer. The question may be partially correct or the answer may require additional information to explain the “yes” or the “no.”
Witnesses are often told by their preparing attorney to answer yes or no and then, only if necessary, ask to explain the answer. There is a downside to this advice. In a transcript, when the words “yes” or “no” appear as the first answer, they are typically blown up as exhibits or used in impeachment and the “yes” or “no” word is highlighted, while the explanation can get lost. This is particularly true with expert witness depositions. One bit advice to the witness might be to reverse the “yes, but” order. The witness may decide to qualifying information first and then provide the yes or the no at the end based on the qualifying information. For example: