Co-authors: Andrés Rivero & Jorge A. Mestre
You represent the plaintiff in a complex commercial litigation case in Florida state court against a giant corporate defendant. You need to gather evidence at an early stage to push the case forward. The best way to begin to gather evidence is to pin down your corporate opponent’s positions. How do you do it without having to guess whom to depose? The answer: Depose the corporate representative under Fla. R. Civ. P. 1.310(b)(6) and begin your discovery voyage. (1)
A Solution Is Born
Before the rule was adopted, you had two options if you wanted to depose a corporation. Plainly, you could not physically depose a corporation as it could not speak for itself. Still, you needed to find the natural person who spoke for it. If you knew specifically whom you wanted to depose, it was easy–you would simply schedule that person’s deposition and use the ordinary discovery rules to compel compliance. (2) But if you didn’t know the person’s identity, you had a problem. Courts had generally held that you (as the party seeking the deposition) could not “burden” the corporation to find the appropriate witness. (3) So, unless you got lucky with your first pick, you might have to take several depositions just to identify the person with the most knowledge. This was so because, after disclaiming all knowledge, each deponent would, in turn, point to another person. (4) This made it easy for the corporation to hide the ball.
To make matters worse, the corporation would inevitably ask the court for a protective order because you had taken too many depositions. Of course, when you went to the hearing and pointed out to the court that the corporation had created the very problem that it complained about, the corporation would vigorously deny the allegation.
In amending Fla. R. Civ. P. 1.310(b)(6) in 1972, the drafters attempted to correct this daisy-chain problem by borrowing the substance of the rule from a 1970 amendment to Fed. R. Civ. P. 30. (5) The Florida rule now permits you to ask the corporation to designate its corporate representative, which, in theory, eliminates the corporate shell game. (6) By forcing corporations to play fair, you no longer have to depose numerous corporate officers and agents to find the proper person. (7)
Follow Procedure Carefully
Under the rule, you begin by naming a corporation (not an individual) as a deponent. (8) Under the rule, it’s the corporation–not you–that designates the deponent. (9) That’s the point: The corporation must find the proper witness. You must then designate the topics on which you intend to examine the witness with “reasonable particularity.” (10) The topics may include anything that you could otherwise ask at a deposition.
Unfortunately, the text of the rule does not define “reasonable particularity.” (11) Corporations like to allege that you have failed to state your topics with the requisite particularity. This delays the deposition and buys the corporation additional time. So, how do you comply with the rule and avoid the delay? Although no definite answer exists, some courts have come up with certain minimum standards. (12)
For example, the court in Reed v. Bennett, 193 F.R.D. 689, 692 (D. Kansas 2000), in construing the comparable federal rule (that is, Fed. R. Civ. P. 30(b)(6)), held that a notice stating that the areas of inquiry will “include but not [be] limited to” the areas specifically enumerated was overbroad and therefore failed to meet the reasonable particularity standard. (13) Another district court has held that designating the topic as “such other officers and employees of said plaintiff as have knowledge of the matters involved in this action” was too general. (14)
Because the cases don’t give a definite answer, you should look to the text of the rule. The rule’s plain language appears to require that the topic designations should at least allow a reasonable person to understand what you intend to cover during the deposition. But be careful–you may not want to reveal everything you intend to ask.
Once you have designated your topics with “reasonable particularity,” notice the deposition. If the corporation is a party to the lawsuit, simply send it the notice of deposition. And if you want to depose a nonparty corporate representative, serve that nonparty corporation with a subpoena as you would for any nonparty deposition. Of course, designate the topics in the nonparty subpoena with “reasonable particularity.” And, for clarity, you should explain that the nonparty corporation has a duty to designate someone to testify for it.
After you send the notice, the burden shifts to the corporation to produce the appropriate witness (or witnesses). Who is the appropriate person? Generally, the corporation should produce the person that can best answer questions about the topics that you designated. (15) But the rule only requires the testimony to come from an officer, director, managing agent, or a designee “who consents.”
Who is a corporation’s officer or director needs no explanation. Managing agents include those “in the exclusive and immediate control … of a department or of the entire works conducted at the place where he is in charge.” (16) A person “who consents” to testify on the corporation’s behalf also can serve as the corporate representative–in other words, the person can be an employee, attorney, consultant, or anyone at all. (17) But the corporation cannot compel an employee to testify for it if that person refuses. (18) So, to the extent that the information is not attorney-client privileged or protected work-product, you may want to find out whom the corporation approached to testify and if any of those people refused. Then depose all employees that refused to testify to find out why they refused–the answers can be a gold mine.
How hard must a corporation look for the appropriate witness? Although the rule does not explicitly say, the corporation should at least make a good-faith effort to find the appropriate witness. (19) And although it’s hard to define precisely what a good-faith effort requires, if the witness is unable or fails to answer your questions that’s a good indication that the corporation failed to look hard enough. If you don’t get answers to your questions, move to compel the proper designee’s deposition. (20)
If the corporation still does not produce anyone at all, you should ask the court to compel the corporation to designate a representative. (21) If the corporation still does not comply, the court can sanction the corporation. (22)
Corporation Must Educate Designated Deponent
The deposition begins. You start to ask questions and realize that the deponent lacks personal knowledge. Instead, the corporation educated its representative about the topics you designated. Is that permissible? Yes, it is. And not only is it permissible, it’s required.
Under the rule, the corporate representative has a duty to give information that is “known or reasonably available” to the corporation. This means that the duty to present and prepare a designated deponent goes beyond matters personally known to the designees. (23) The corporation must prepare the deponent based on any available information. (24) The corporation must make a conscientious, good-faith effort to designate that person who best knows about the matters sought by you and also to prepare the designated person to answer fully and completely any questions you may pose. (25) While the rule “is not designed to be a memory contest,” a corporation’s duty extends beyond the mere act of presenting a human body. (26)
To ensure that the representative understands the deposition’s subject matter, the corporate representative has the duty to review all documents that might bear on the deposition topics and review information reasonably available, whether from documents, depositions, past employees, or other sources. (27) If the corporate representative answers a question by saying, “I don’t know,” this can mean two things. First, it can mean that the corporation, after inquiring into the matter, could not find an answer. (Remember, the deponent’s lack of personal knowledge does not support such an answer.) Second, it can mean that the corporation failed to educate the representative properly and therefore failed to comply with the discovery requested. (28) This failure may subject the corporation to sanctions. It’s important that you ask the necessary follow-up questions to determine what an “I don’t know” answer actually means.
If the corporation failed to properly educate its representative, this failure should have the same consequences as the failure to respond to interrogatories. (29) You should therefore obtain an order compelling the discovery and if the corporation fails to comply, you should ask the court, in accordance with Fla. R. Civ. P. 1.380, to do the following: 1) order that certain facts are established for purposes of the action; 2) refuse to allow the disobedient party to support or oppose designated claims; 3) strike the pleadings; 4) find the corporation in contempt of court (of course, a court must have entered a prior order to seek this relief); or 5) award reasonable expenses including attorneys’ fees for the motion and the expense of retaking the deposition.
But before you move for sanctions you may want to try a different approach. Because the corporation must prepare its representative for deposition, if a witness says, “I don’t remember,” you may want to see if, during the deposition (either on the record or on a break between questions), the corporation’s attorney will agree to remind the witness of the corporation’s position. Although this would be improper coaching in any other deposition setting, in the context of this rule it creates a clear record of the corporation’s position. This is because sometimes a corporation will take complicated, difficult-to-remember positions and a reminder may assist the witness. Just as attorneys assist in preparing responses to interrogatories, you should consider asking the corporation’s attorney to assist in a corporate representative’s deposition.
The corporation also has yet another alternative if it feels that it cannot educate one person about everything (a reasonable conclusion because not even a noncorporeal corporation can know everything)–it can designate more than one person to testify. The corporation can pick and choose what each person knows and designate who speaks to what. The corporation may (it’s not required to) even state what each deponent will testify to beforehand. (30) As the deposition’s proponent, this helps you prepare because it tips you off about what each person knows.
Inquire Into Deponent’s Personal Knowledge
Often, you may want to exceed the scope of the designated topics and inquire about the corporate representative’s personal knowledge. Though the courts are divided on the issue, good authority exists for this practice.
For example, Judge Jose A. Gonzalez, Jr., from the U.S. District Court, Southern District of Florida, in King v. Pratt & Whitney, 161 F.R.D. 475,476 (S.D. Fla. 1995), held that a proponent of a deposition could not use the rule to limit the type of questions: “The rule is not one of limitation but rather of specification within the broad parameters of the discovery rules.” The King court also held that if the examining party asks questions outside the topics designated in the notice, the general deposition rules govern. (31) In other words, you can ask the corporate representative any relevant questions even though you noticed the deposition under the corporate representative rule. (32) But under the King court’s reasoning, if the deponent, on the deponent’s personal knowledge, cannot answer questions outside the scope of the designated topics, it’s your problem. (33) (This is in contrast to answers the deponent does not know within the description of the notice–in that situation you should move to compel the answer or the production of a witness that can.)
In Paparelli v. Prudential Ins. Co., 108 F.R.D. 727, 730 (D. Mass. 1985), the court took the opposing view and held that the deposing party must confine the examination to the topics stated “with reasonable particularity” in the deposition notice. (34) The Paparelli court reached that conclusion for three reasons. First, the court reasoned that it makes no sense for a party to identify certain topics it wishes to examine the corporate representative upon and then to ask about totally different topics. (35) Second, if the purpose is preparing the corporate representative for deposition, then a party would thwart the rule’s purpose if it could ask about a matter that the representative is unprepared to testify about. (36) And third, that the notice of deposition must list the examination topics “with reasonable particularity” lends weight to the notion that an implied limit exists to the scope of the deposition based on the designated topics. (37)
Nevertheless, in Detoy v. City and County of San Francisco, 196 F.R.D. 362 (N.D. CA 2000), the court considered the two approaches and concluded that the King court provided the better view. The Detoy court agreed with the King court that the rule is not one of limitation but rather one of specification:
While the court in Paparelli interpreted the “reasonable particularity” requirement of the Rule as limiting the scope of the deposition, the court in King interpreted the requirement as ensuring that the party produces a witness prepared to testify. This renders the description of the scope of the deposition in the notice as the minimum about which the witness must be prepared to testify, not the maximum…. The “reasonable particularity” requirement as interpreted in King facilitates discovery as the Advisory Committee intended, instead of hampering discovery as Paparelli does. (38)
So, although the law is unsettled, you have enough support to ask questions beyond the scope of the topics you list. Make sure you cover every topic that you designated in your notice; then, once you have finished the designated topics, ask the witness about his or her personal knowledge.
Of course, bear in mind that if you exceed the scope of the designated topics, a court may decide that you have deposed the person individually (as opposed to as the corporate representative) and you may face the argument from the corporation that you may not redepose the person to obtain additional “personal knowledge” testimony.
Deponent’s Answers Bind the Corporation
In essence, when a corporation designates a person to respond to particular topics, that person speaks for the company. (39) Generally, you will ask the corporate representative two types of questions during a deposition: questions about facts; and questions about positions or opinions. (40) A corporate representative must respond to both types of questions, and the answers will bind the corporation. (41) This highlights the importance of educating a deponent about the examination topics.
You should therefore consider asking some of your questions in the following format: 1) Does the corporation concede that–?; 2) Is it the corporation’s position that–?; and 3) What is the corporation’s opinion about–? This format is useful because a central goal in taking the corporation’s deposition is to pin down its position. These kinds of questions do exactly that.
You can use the corporate representative deposition testimony for any purpose in accordance with Fla. R. Civ. P. 1.330. For example, you can use it to impeach any corporate representative or you can use it as direct evidence. This makes the corporate representative deposition a key tool in litigating a case against a corporation. Think of the possibilities. The corporate representative concedes a damaging position that you can use at summary judgment. Or, the corporation puts on a witness at trial who takes a different position than what was previously testified to by the corporate representative. You can now impeach the witness with the admission by the corporation. With these wonderful opportunities, you should follow three simple rules: prepare, prepare, and prepare.
Remain Creative in Obtaining Discovery
When you decide how to obtain corporate testimony, remember that this rule is not exclusive; it is merely supplementary. (42) You can still depose individuals from the corporation in their individual capacity. (43) This does not mean that you can take cumulative depositions, only that you aren’t limited to what type of discovery to take. (44) Hence, don’t get trapped into thinking that you only have one shot at the corporation. Instead, use the corporate representative to pin down the corporation to a position or to identify other witnesses or documents helpful in proving up your case. But beware; if you abuse the discovery process, the court can limit you to the designation procedure. (45) Also, keep in mind that if you want to depose an employee who is not an officer or managing agent, you must serve that person with a subpoena. (46)
Use Rule to Your Advantage
The rule has simplified discovery of a corporation’s position and relevant evidence in its possession early on in a case. Use the rule as your rudder and you will navigate your case successfully to an earlier adjudication. Overlook it and you may find yourself sailing against a tide of useless testimony.
(1) The rule applies equally to "a public or private corporation, a partnership or association, or a governmental agency." FLA. R. CIV. P. 1.310(b)(6). (2) Plantation-Simon Inc. v. Al Bahloul, 596 So. 2d 1159, 1160 (Fla. 4th D.C.A. 1992). (3) Id. at 1160. (4) Id. (5) Id. (6) Id. (7) Id. (8) Chiquita Int'l Ltd. v. Fresh Del Monte Produce, N.V., 705 So. 2d 112, 113 (Fla. 3d D.C.A. 1998). (9) Id. at 113. (10) Id. (11) See 4 Fla. Prac., Civil Procedure R. 1.310 (2001-2002 ed.) (TREATISE), West's Florida Practice Series TM, Bruce J. Berman (what satisfies the requirement is necessarily subjective). (12) For example, Chiquita, 705 So. 2d at 113, notes, without further comment or explanation, that the party requesting a deposition under 1.310(b)(6) violated the rule "by failing to designate with reasonable particularity the matters on which examination was being requested ...." (13) Because the Florida Rules of Civil Procedure were patterned very closely after the federal rules, federal cases interpreting comparable provisions are persuasive in that Florida courts closely examine and analyze federal decisions and commentaries under the federal rules in interpreting ours. Mims v. Casademont M.D., 464 So. 2d 643, 644 (Fla. 3d D.C.A. 1985); Jones v. Seaboard Coast Line R.R. Co., 297 So. 2d 861, 863 (Fla. 2d D.C.A. 1974); Orlando Sports Stadium, Inc. v. Sentinel Star Co., 316 So. 2d 607, 611 (Fla. 4th D.C.A. 1975) (in the absence of a federal decision courts look to treatises including Moore's Federal Practice). (14) Morrison Export Co. v. Goldstone, 12 F.R.D. 258, 260 (S.D.N.Y. 1952). (15) Seay, 378 So. 2d at 1269. (16) Seaboard Air Line R.R. Co. v. Ford, 92 So. 2d 160, 168 (Fla. 1955). (17) The advisory committee notes to the 1970 amendment to FED. R. CIV. P. 30 explain that a person who is not an officer, director, or managing agent may be designated to testify only with their consent and "[t]hus, an employee or agent who has an independent or conflicting interest in the litigation--for example, in a personal injury case--can refuse to testify on behalf of the organization." (18) See Notes of Advisory Committee on Rules, 1970 Amendment, Subdivision (b)(6). (19) Protective Nat'l Ins. Co. of Omaha v. Commonwealth Ins. Co., 137 F.R.D. 267, 278 (D. Neb. 1989). (20) See Medero v. Florida Power & Light Co., 658 So. 2d 566, 567 (Fla. 3d D.C.A. 1995) (concluding relief by way of certiorari available upon finding that trial court lacked good cause to deny deposition after executive was identified in other discovery as potential material witness). (21) See FLA. R. CIV. P. 1.380. (22) Quantachrome Corp. v. Micromeritics Instruments Corp., 189 F.R.D. 697, 699 (S.D. Fla. 1999); FLA. R. CIV. P. 1.380. (23) Bank of New York v. Meridien Biao Bank Tanzania Ltd., 171 F.R.D. 135, 151 (S.D.N.Y. 1997). (24) Id. (25) Protective National, 137 F.R.D. at 278; Marker v. Union Fidelity Life Ins. Co., 125 F.R.D. 121, 126 (M.D.N.C. 1989); Meridien, 171 F.R.D. at 151. (26) Meridien, 171 F.R.D. at 150; Quantachrome, 189 F.R.D. at 699. (27) Meridien, 171 F.R.D. at 151. (28) Quantachrome, 189 F.R.D. at 699. (29) Al Bahloul, 596 So. 2d at 1160; see Notes of Advisory Committee on Rules, 1970 Amendment, Subdivision (b)(6). (30) FLA. R. CIV. P. 1.310 (b)(6); see 5 Fla. Prac., Civil Practice [section]10.6 (2001 ed.) (Treatise). (31) King, 161 F.R.D. at 476. (32) Id. (33) Id. (34) Paperelli also held that an instruction by counsel not to answer a question outside the scope of the matters listed in a Rule 30(b)(6) notice violates that Rule. Id. at 730. (35) Id. (36) Id. (37) Id. (38) Detoy, 196 F.R.D. at 366-67. See also Cabot Corp. v. Yamulla Enterprises, Inc., 194 F.R.D. 499 (M.D. Pa. 2000) (holding that Rule 30(b)(6) does not limit the scope of deposition to contents of deposition notice); Overseas Private Inv. Corp. v. Mandelbaum, 185 F.R.D. 67 (D.D.C. 1999) (the scope of inquiry of a Rule 30(b)(6) witness is limited only by Rule 26(b)(1)'s general discovery standards). (39) Marker, 125 F.R.D. at 126; see Meridien, 171 F.R.D. at 150. (40) United States v. Taylor, 166 F.R.D. 356, 361 (M.D.N.C. 1996). (41) Id. at 361. (42) FLA. R. CIV. P. 1.310(b)(6); Al Bahoul, 596 So. 2d at 1161. (43) FLA. R. CIV. P 1.310(b)(6); Al Bahoul, 596 So. 2d at 1161. (44) Al Bahloul, 596 So. 2d at 1161 (trial judge has discretion to determine whether either party is misusing this discovery device); see Medero, 658 So. 2d at 567 (trial court has the right to deny discovery upon a showing of good cause including cumulative depositions). (45) Al Bahloul, 596 So. 2d at 1161. (46) Taylor, 166 F.R.D. at 361.
Andrés Rivero and Jorge A. Mestre are shareholders of Rivero & Mestre, P.A. Their practices focus on representing corporate and institutional clients in complex commercial disputes including financial institution and securities matters, intellectual property disputes, unfair competition, antitrust, breach of contract claims, securities actions, healthcare litigation, class action defense, and litigation and arbitration relating to Latin American trade and investment. They also represent clients in SEC regulatory, criminal fraud, and white-collar criminal matters.
This column is submitted on behalf of the Business Law Section, Maxine M. Long, chair, and Steven Fender and Kevin H. Sutton, editors.
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