Entity Designee Depositions, MAJ Trial Reporter (Spring 2017), Part 1

ENTITY DESIGNEE DEPOSITIONS

By Eric N. Stravitz with Ellen B. Flynni

Before the advent of Federal Rule of Procedure (FRCP) 30(b)(6), counsel seeking information from an entity that could not be gleaned from written discovery had to guess at who within the entity to depose, and then keep taking depositions until getting the necessary information or running out of permissible depositions.ii Unsurprisingly, this encouraged entities to resist providing useful information. FRCP 30(b)(6)iii made the process of extracting information from entities both more useful and less frustrating by requiring the entity to produce one or more deponents to testify about topics listed on a deposition notice. Although these depositions are sometimes called corporate designee depositions, this phrase is too restrictive because the Rule applies to “a public or private corporation, a partnership, an association, a governmental agency, or other entity.” FRCP 30(b)(6). The Rule requires the party seeking the deposition to “describe with reasonable particularity the matters for examination.” Id. The entity “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.” Id. A non-party must be served with a subpoena advising it of its duty to make such a designation. Id. Whether a party or non-party, the persons designated by the entity “must testify about information known or reasonably available to the organization.” Id.

Maryland’s analog is Rule 2-412(d).iv Although derived from FRCP 30(b)(6), perhaps notably, it lacks both the “or other entity” language set forth above and the last sentence of 30(b)(6), which reads: “This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules.” For a case enforcing the Maryland Rule, see Saxon Mortg. Servs. v. Harrison, 186 Md. App. 228, 973 A.2d 841 (2009). Note that, because the Maryland Rule is derived from the Federal Rule, when both rules align, cases from Federal Courts on issues not addressed by Maryland’s appellate courts may serve as persuasive authority for a Maryland Circuit Court Judge (there are far more cases interpreting 30(b)(6) than 2-412(d)).

A typical deposition notice can often be quickly prepared once the logistics of the deposition are known. On the other hand, entity deposition notices require far more preparation and the depositions themselves require more advanced planning. To effectively prepare a notice, you must understand the law that applies to the case and the proof needed to satisfy it. Also, consider what defenses are likely to be raised, and how you can defeat them. A visit with the pattern jury instructions will assist you. When drafting topics to include in the notice, be mindful that while the discovery sought must be “relevant to any party’s claim or defense…relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” FRCP 26(b)(1).

Nearly every time we request an entity designee deposition, defense counsel will respond by asking for a draft notice or list of topics. This is so that they can figure out who should be designated and learn of that person’s (or those persons’) availability. So we send a draft notice—typically by email—along with a request for deposition dates. Diary your calendar to follow-up with defense counsel if the dates are not forthcoming within a reasonable time period (perhaps a week or two). Occasionally, you will receive push-back. Sometimes it will come as a legitimate critique of one or more of your listed topics; on other occasions, it will seem like an illegitimate exercise in generating billable hours. We generally welcome the former as it is an opportunity to tighten up the notice and have a better deposition. As for the latter, make a record by replying in writing, take the deposition, and follow the procedures for a motion to compelv if your questions about properly listed topics are obstructed.vi Lastly, make sure you give yourself enough time to accomplish all of this before discovery closes.

The Notice

Designee depositions can be helpful in several types of cases, including: premises liability, premises security, serious crash, nursing and medical malpractice cases.

Because opposing counsel’s entity client will be present for the deposition, these depositions may inspire bad behavior on the part of some defense attorneys. For this reason, if it is cost effective, consider videotaping the deposition in order to deter improper behavior and capture it if it occurs. In order to reserve this right, you should indicate in the notice that you will video the deposition.

As long as you give 30-days-notice, you can include in the notice a document production schedule.vii This is essential if you want documents from a non-party. If the entity is a party, it can still be useful to propound any document requests that you omitted from your request for production of documents and to include a catch-all request such as “Any documents requested by Plaintiff’s Request for Production of Documents (RPDs) to this Defendant that have not already been produced.” Consider whether to include a definitions section for the document schedule, just as you would for a set of RPDs. The guiding principal here is to make it as hard as possible for defense counsel to avoid giving you what ought to be produced. These depositions often unearth documents not produced in response to a Request for Production of Documents, so be prepared to be reviewing and copying documents before you go on the record. For sample entity designee notices in a variety of cases, go to: https://www.stravitzlawfirm.com/resources.html. Lastly, some attorneys will send a letter to opposing counsel with the notice stating that they will move to strike the Defendant’s defenses if the deponent(s) unreasonably answer “I don’t know” or “I will need to check” to questions which ought to be answered substantively at the deposition.

The Deposition

After giving the witness preliminary instructions, we will always ask the witness if he understands that his testimony can bind the entity. Also, be careful when phrasing questions with the word “you.” Counsel should make clear whether the reference to “you” in the notice or during the deposition means the individual deponent or the entity itself. Most of these depositions will concern the time leading up to an event that damaged your client. As a general proposition, depending on the subject of the question, the years, months, or days leading up to and including the date of the event will be most important. Thus, prefacing questions with something a statement: “Do you understand that, unless I tell you otherwise, this deposition concerns the month leading up to and including [insert date of event]?”viii If you do not do this, you could realize when preparing for trial that what you thought was great designee testimony is, well, less than great.

Asking what the deponent has done to gather the materials responsive to the notice, and how they became knowledgeable about the information requested in the notice on behalf of the company, is a very important part of the deposition. This can often lead to supplemental discovery requests and/or support a motion to compel. If the designee has not performed an exhaustive search, or has not asked for assistance from appropriate employees, then he or she has not met their obligations as a designee. Asking where documents might be stored, and how far that is from the room where the deposition is taking place, can shut down evasion tactics. Taking a break so that the designee can go look in a file cabinet or on the computer right down the hall can only happen, however, if the deposition is taking place at the corporate offices.

For useful cases regarding Rule 30(b)(6), see Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416, 432-34 (5th Cir. 2006)ix and Keepers, Inc. v. City of Milford, 807 F.3d 24, 34-35 (2d Cir. 2015).x

Focus your questions so that you are not asking the deponent for his or her personal knowledge, but rather, for the entity’s knowledge on a given subject. Thus, you may want to preface a line of questions with, “As the [insert entity] V.P. of Operations…?” or “What protocols did your company have in place on…” Some attorneys will use only the deposition notice as their outline for the deposition. Creating a more detailed outline with lines of questions stemming from the topic areas in the notice can result in better deposition. Paradoxically, I find that the process of preparing the outline means that I do not need to refer to it very much when questioning the deponents.

Using the Notice at Deposition

While I have issued entity designee deposition notices with as many as 30 topics, I prefer to keep them shorter. Often, the depositions do not yield “home runs,” but instead show how the entity defendant did not have a focus on safety, made bad choices, and thus, made the injurious event more likely. Below are some examples of a few topics (among many) used in three different cases, and how they played out at each entity designee depositions.

Example 1: Premises Liability Case

Facts: Plaintiff was visiting his daughter in DC. While staying at her apartment he took attempted to take out her trash. To do so, he descended the steps to the basement of her apartment building. As soon as he stepped from the last stair to the basement floor, he slipped and broke his ankle in several places. This caused a permanent injury. Though a janitor working for the apartment admitted that he mopped the floor shortly before my client fell, according to my client, no wet floor sign had been erected in the vicinity (the defendant disputed this).

The Notice (topics only):

  1. The incidentxi at issue.

  2. Policies, procedures, protocols, methods, manuals, instructions, bulletins, documents and/or writings regarding the cleaning of the floor and/or the area where Plaintiff alleges she fell.

  3. Policies, procedures, protocols, methods, manuals, instructions, bulletins, documents and/or writings that you had in effect generally regarding the cleaning done by your company and/or your workers on the date the incident took place.

  4. Policies, procedures, protocols, methods, manuals, instructions, bulletins, documents and/or writings that you had in effect generally regarding the safety on the date the incident took place.

  5. The command structure within your company.

  6. The position description for all individuals in your company, including but not limited to, those in charge of supervising maintenance and/or cleanup of the floor and/or the area in which Plaintiff fell and the position description for those scheduled to perform that function on the day at issue.

  7. The duties and/or responsibilities of the individuals who held the various job titles that existed in your company on or about May 12, 20__.

  8. Any investigation you conducted into the incident before defense counsel was assigned.

  9. Any photographs, images, and/or video footage of the floor and/or the area where the incident took place.

  10. Any complaints, regardless of the source (or your assessment of their validity), that pre-dated the incident regarding the alleged acts and/or omissions of your workers that concerned alleged falls, near falls, and/or any failures to deploy wet floor signs, warning signs, and/or caution signs.

  11. Any insurance claims and/or lawsuits brought against you at any time for an alleged failure to remove liquid from any floors on which your workers worked and/or any alleged failure to warn of wet and/or dangerous floors.

  12. Any disciplinary procedures you had in effect regarding your workers and the purpose of those procedures.

  13. When you were first contacted about the incident.

    1. a. Who initiated the contact.
    2. b. How the contact was made.
    3. c. What actions were taken by the Defendant as a result of that first contact.
  14. Any later contacts between the Plaintiff (excepting her attorneys) and you and/or your workers.

  15. The composition and characteristics of the cleaning solution and/or liquid your worker used on the floor the last time he cleaned it before Plaintiff fell.

  16. Any documents and/or things produced in response to the “Documents and Things” request below.

  17. Defendant’s Answers to Interrogatories.

  18. The factual basis for any of Defendant’s Answers to Interrogatories.

  19. The identity of any individuals who saw (a) [janitor] place any “wet floor sign” as Defendant stated in its Answer to Plaintiff’s Interrogatory No. 9 and/or (b) who saw a wet floor sign in the place indicated by the Defendant in its Answer to Plaintiff’s Interrogatory No. 9 on the date of the occurrence before Plaintiff fell.

  20. Whether on May 12, 2008 at the premises, the stairway leading to the basement floor and the basement floor itself were off limits to residents/tenants at the premises and/or their guests.

    1. a. If so, the means with which this was communicated to the residents/tenants and/or their guests, and when it was communicated.
  21. Whether on May 12, 2008 any areas at the premises other than those referenced in ¶20, above were off limits to residents/tenants at the premises and/or their guests.

    1. a. If so, the means with which this was communicated to the residents/tenants and/or their guests, and when it was communicated.
  22. The identity of the [janitor’s] employer at the time of the occurrence, the days and hours he worked at the premises, his job title, job duties, equipment he brought to his work at the premises, and how he came to be employed by the Defendant.

  23. Your discovery responses to date including, but not limited to, Answers to Interrogatories, Responses to Requests for Production of Documents, and any documents and/or things produced therewith.

  24. The authenticity of all documents and/or materials that Defendant has produced in discovery or will produce at this deposition.

  25. The names, forwarding addresses, dates of birth, and any phone numbers of any people who lived in the “one apartment on the basement floor” (see Defendant’s Answer to Plaintiff’s Interrogatory No. 27) of the premises from May 12, 20__ through May 12, 20__. [A 5-year period.]

  26. Regarding any wet floor or similar signs allegedly located on the premises as of May 12, 200_, the identity of the person that made such sign(s), the identity of the person that supplied such sign(s), when any such signs were purchased, and how often they were purchased.

The Deposition:

[This first entity designee deponent was an attorney.]

Q: Did Defendant LLC, at the time we've been talking about have any employee handbooks, procedural manuals, instructions or any kind of documents that it would give to people in [the janitor's] position?
A: It did not.
Q: Do you know if a background check was ever run on him to find out, for example, if he had a record of being convicted of crimes?
A: I don't believe so.
Q: You would agree that, when he worked at the building, he came into contact with tenants?
A: I would expect so, yes.
Q: And at times that contact would be in the basement of the building, correct?
A: I would imagine.
Q: Did Defendant LLC have any disciplinary policies in effect, let's say, if someone like [janitor] mopped a floor and didn't put up a wet floor sign?
A: Not that I know of specifically.

Q: Was that cleaning solution provided for him by Defendant or was that something he brought to the job?
A: I don't know.

Q: Did [janitor], back in May of 2008, have a supervisor regarding his work at the building?
A: Other than -- to the best of my knowledge, other than [entity designee 2 (“D2”)], no.
Q: Did D2 work on site at the property, the building we've been talking about?
A: I guess she visits on occasion. I don't believe she has a regular schedule.
Q: How often would you visit the property?
A: I don't think I've ever been inside the building. I have driven past it once or twice.

Q: Is Defendant aware of any person or witness who saw [janitor] display or put up any kind of wet floor or caution sign on May 12th, 2008 before Mr. Plaintiff alleges he fell?
A: No.
Q: At the time he fell, was the basement itself off limits to residents of the building?
A: I'm not -- I don't understand the question.
Q: Sure. Were there any signs prohibiting tenants or guests from walking from the first floor down to the basement level of the building?
A: Not that I know of.
Q: Had Defendant or anyone who worked for it sent out any notices saying, you know, you need to avoid the basement, to tenants?
A: Not that I know of.
Q: So in walking from the first level down the steps to the basement and stepping onto the basement landing, Mr. Plaintiff wasn't violating any rule of the building, correct?
A: Not that I'm aware of.

MR. STRAVITZ: At this time, I want to reserve the right to reopen this deposition because a lot of the information I requested, by the deponent's own admission, is potentially available, but he didn't bring it with him today. Hopefully, it can be provided by [D2] or, you know, in written form to counsel so we don't need to reopen this. But, with that, I'm finished with my questions at this time.

[The second entity designee deponent—in the interest of saving space, I’ll describe some of the points from her deposition.]

She was responsible for managing 10 properties simultaneously.

She had numerous duties, none of which involved inspecting the properties, but she would visit each property once or twice a month, especially if she was showing an apartment.

She was never there when the building was mopped.

The entity hired an individual to inspect and make repairs at its properties. She [thus, the entity] had no idea how often this individual did so. He was also responsible for safety.

She did not know when the janitor was hired. [There were many pieces of information that she did not have with her but said she could look up on her computer and likely provide, so defense counsel and I each kept a list and he promised to email her the list so that the information would be provided.]

Regarding oversight of the janitor, the entity relied on tenant’s complaints, her 1-2 visits/month and the hired inspect and repair person (whom she did not know how often visited the premises).

She thought there was one wet floor sign on the premises but testified “it was not my field of importance when I was on the site.”

She did not know if the janitor put up a wet floor sign at the time in question.

She could not tell me whether anyone working for the entity had ever seen the janitor mopping.

She testified that my client’s daughter contacted her to say her father had a “little fall.” [This characterization was patently ridiculous.]

She/the entity did not know what cleaning solution was used or what the ratio of solution to water was.

She discussed the matter of my client’s fall with the janitor. She could not say with 100% certainty he had told her he put up a wet floor sign in the area where my client fell. “I'm pretty sure because, otherwise, I would have yelled and screamed and I might have remembered that.” If he did tell her he put up the sign, she does not recall him saying where he erected it.

She admitted that the erection of the sign and its placement is important.

The extent of the guidelines she give him (only orally) were: “Pick up trash, sweep and mop the halls…and basically put up wet floor signs when he mopped. But aside from that, it’s not a difficult job.”

She gave no instructions regarding the placement of the wet floor signs.

She agreed that wet floor signs are important so people don’t slip and fall.

Tenants could enter the building from the basement.

I asked questions to establish that with only one wet floor sign, given the configuration of the basement, even had the sign been erected, either people coming down the internal stairs or people coming from outside would not be able to see the sign if the janitor had moved on to the laundry room (also in the basement). She did not know the answer.

The entity did not dispute that my client fell in the building.

The entity did not know whether or not the janitor had mopped the portion basement tile floor on which client claimed he fell just beforehand.

[Over objection] It would concern her [the entity] if the janitor was mopping and not erecting the wet floor sign.

She only had a W-9 in the janitor’s personnel file and had never run a background check on him.

No meetings were ever held concerning safety.

Example 2: Crash Case

Facts: Client was struck by a medical transport van just beyond a lane of travel while servicing a customer at a drive through.

The Notice:

  1. The facts and circumstances of the occurrence.

  2. The identity of all of your agents, servants, employees, representatives, workers, independent contractors, and/or attorneys with knowledge of the occurrence.

  3. The identity of all of all of your agents, servants, employees, representatives, workers, independent contractors, and/or attorneys that interacted with the Plaintiff on the date of the occurrence and/or since the date of the occurrence.

  4. The identity of any and all persons known to you that witnessed all or part of the occurrence, and all persons who were at or near the scene and/or arrived at the scene of the occurrence within 2 hours after it took place.

  5. Your business as it existed on the date of the occurrence, including, but not limited to: what your business was?, how you conducted it?, how it generated money? what, if any, rules you followed in doing it?, how many employees you had and, for each, their names, titles and functions.

  6. Any corporate knowledge of how the occurrence took place communicated by your driver and/or through any other source of information.

  7. Any investigation you conducted into the occurrence in the ordinary course of business, including, but not limited to, the nature and extent of any such investigation, what it revealed, how it revealed it, and any documents generated by it.

  8. The number of background checks, if any, you conducted regarding your driver.

  9. A description of what was done for each background check and/or investigation you conducted regarding your driver.

  10. The information and/or documents generated as a result of any background check and/or investigation regarding your driver.

  11. The contents of any personnel file you have regarding your driver.

    1. a. If you once had, but no longer have, a personnel file for your driver: your document destruction policies regarding retaining documents regarding one of your drivers after you have been notified that he or she was involved in a collision that was investigated by the police.

  12. The number of tickets, infractions, and/or traffic violations – if any – that your driver had received in the 10 years leading up to and including the date of the occurrence, and the disposition of each one.

  13. The number of criminal convictions – if any – that your driver had received in the 15 years leading up to and including the date of the occurrence.

  14. Your policies, procedures, protocols, guidelines and/or rules regarding the use of your vehicles by your drivers that were in effect on the date of the occurrence.

  15. Your policies, procedures, protocols, guidelines and/or rules that were in effect on the date of the occurrence – if any – regarding the use of your vehicles by your drivers for things other than transporting patients.

  16. Your policies, procedures, protocols, guidelines and/or rules that were in effect on the date of the occurrence – if any – regarding the personal use of your vehicles by your drivers.

  17. Your corporate address and the nature of the building at that address.

  18. The hours that your driver worked for you from July 21, 2010 to August 8, 2010.

    1. a. The paystubs and/or any other documents that you or your driver generated that show same.

  19. Whether your driver was operating one of your vehicles at the time of the occurrence.

  20. How your driver came to possess (i.e., be in a position to operate) the vehicle of yours that he was operating at the time of the occurrence.

  21. If you contend that your driver was operating your vehicle at the time of the occurrence without your permission, set forth:

    1. a. The identity of any person who communicated this to him before the occurrence took place?

    2. b. How many times it was communicated and, for each communication, how it was communicated, and the contents of the communication.

  22. Your discovery responses.

  23. The documents you produced in discovery.

  24. The documents requested below.

  25. Any contracts, agreements, and/or other such documents in effect on the date of the occurrence between you and your driver.

The Deposition:

[Again, in the interest of saving space, I’ll provide points made at the deposition, rather than transcript excerpts.]

The owner spent most of his time in Africa and was away for months at a time.

The designee was both a dispatcher and a driver for the company.

Management/operations at the company consisted of himself, the owner, and a billing/filing clerk.

He discussed the information [regarding the crash] with the driver, but does not remember what he did with it.

The gist of it was that a lady had slid or bumped into the van. [We had video footage of the van striking her and launching her through the air.]

The driver made it seem to him as a minor thing.

The driver did not tell him that an ambulance had come to the scene.

He did not ask the driver if he had been transporting a passenger. The driver did not volunteer this information.

The driver told him he was using the van [it was a Saturday] because he was going to the store [it was a liquor store].

He knew how to contact the entity’s insurance company but did not do so here because he thought it was a minor thing.

The driver did not provide him with the victim’s information.

He does not know if the driver exchanged information with the victim.

He did not ask for the victim’s information.

He is unaware of the entity having “any type of written policies or procedures or rules about its drivers using its vehicles on the weekend.”

They transported patients on the weekends on an “on-call basis.”

He or the owner allowed the driver to take the van home with him.

The driver was allowed to take it home and keep it parked. But he could do a short run for personal use.

No one tracked the driver’s mileage around the time of the crash to see if he was abusing his privilege by extensively using it for personal reasons.

He first learned of the police report LAST WEEK.

He first learned that a police officer had come to the scene of the collision LAST WEEK.

He has no knowledge of whether the entity had any written policies, procedures, or rules for its drivers about reporting collisions.

Drivers were, however, supposed to fill out an incident report within the company.

He can’t remember if an incident report was filled out for this collision.

The entity did not destroy incident reports.

He reviewed the entity’s documents with counsel and did not find an incident report.

There was a month-long period during which he created inspection reports (regarding the vehicles) that driver’s were supposed to complete.

He did not continue this because “I kind of slacked off a little.”

No one at the entity would inspect the vehicles at continuous intervals to see if drivers were damaging them. [This was important because the impact with my client’s body had made a dent in the hood of the van.]

The entity did not request that the driver give any statement, written or recorded, about how the collision took place.

The entity had no knowledge about the driver being involved in any collisions before or after the subject one.

The extent of the entity’s investigation into the crash was the deponent’s one conversation with the driver.

The driver was disciplined verbally as a result of this collision having taken place.

He was told not to drive it any more for personal reasons.

He cannot remember if he asked the driver if an ambulance came to the scene after the collision took place.

They did a background check on the driver. He does not know what was on it, but it was acceptable. It was done through Medicaid.

[I showed him an image of the van I believed struck my client.] He admits that this was the van involved in the collision to the entity’s knowledge. The entity does not know if the dent in the upper right area of the hood was made when the van collided with client. He never asked driver about it.

He thinks the driver was certified to drive for Medicare on the date of the collision, but can’t be 100% sure because he could not find the documents.

He does not know how long the entity is supposed to keep its driver’s certifications on file.

He and the owner keep these files.

He does not have any documentation of any drug or alcohol testing having been done for the driver after the driver was initially tested as part of the hiring process.

Driver had to wear corrective lenses.

Entity does not know if he was wearing them at time of crash.

Entity did not know if he wore them for distance or reading.

He does not know if the driver was being monitored for personal gas usage of the entity’s vehicles on the weekends.

He does not think that the driver transported a patient on the date of the crash, but is not sure.

He does not know why one month after the crash the driver was excluded by the entity’s insurance company from its insurance policy as a covered driver.

The entity is not aware of, on the date of the crash, the van having any problems with visibility (from the driver’s seat) . . . or mechanical problems.

[I show him a document produced in discovery a category called “safety.”] The last bullet point says “remember, eyes on the road, hands on the wheel.” The entity agrees with that bullet point. It was in effect on the date of the crash.

Safety is important “for everybody’s general being.”

“Eyes on the road basically means look in the direction you’re going.”

The driver told him when I spoke to him about the collision that someone claimed to have been injured as a result of it.

The message from the driver to the deponent was that he did not believe the supposed victim.

The entity did no further investigation beyond that one conversation with its driver.

The driver said he was at a shopping center near his house when this happened.

The deponent could not remember if the driver said an impact did or did not take place.

He did say that a woman said that he had hit her.

He can’t remember what the driver discounted about the woman’s account.

During his tenure with the entity, the driver transported wheelchair patients and patients on stretchers.

The entity had no policy of taking pictures of vehicles when they were first entrusted to drivers.

The entity is not contending that the driver was using the van without its permission.

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