corporate representative deposition

Designating a Representative(s) to Serve as the Corporate Representative for Deposition

Posted by David Adelstein on April 07, 2017
Standard of Review, Trial Perspectives / Comments Off on Designating a Representative(s) to Serve as the Corporate Representative for Deposition

Corporate representative depositions play an important role in the discovery of any dispute involving a corporate party. A corporate representative deposition requires the corporate representative to speak on behalf of the company – they are not speaking based on their personal knowledge, but as to the company’s position regarding designated topics. In fact, the designated corporate representative does not have to have the most knowledge about a particular topic to be the representative. See Fla.R.Civ.P. 1.310(b)(6). See also Sybac Solar, GMBH v. 6th Street Solar Energy park of Gainesville, LLC, 42 Fla. L. Weekly D771a (Fla. 2d DCA 2017) (“The corporation is not required to designate ‘the witness with the most knowledge’ of the designated subject matter; indeed the witness is not required to have any personal knowledge whatsoever. And there may be a good reason why a corporation does not produce the most knowledgeable witness for deposition. For example, the person with the greatest knowledge of the subject matter ‘may not totally embrace the corporation’s position.’” Instead, the corporation is required to prepare the designated witness to testify regarding the designated subject matter.) (internal citations omitted).

Typically, the corporation can designate the representative(s) it wants to testify about the designated topics. With that said, the Second District in Sybac Solar explained that a deposing party that does not like the designated representative(s) can move the trial court to depose another corporate representative of its choice subject to the discretion of the trial court to issue a protective order.  

In this case, the deposing party moved to compel the opposing party to designate a certain individual as a corporate representative. The trial court granted the motion. The opposing party appealed –through a writ of certiorari since orders compelling a deposition can result in irreparable harm that cannot be undone on a final appeal. The Second District reversed in part because the individual had interests that were adverse to that of the company and would not be a proper corporate spokesperson; thus, the individual could not be a corporate representative for those topics.

I find this case frustrating. An entity should be entitled to designate those person(s) it wants to speak on the designated topics. The entity has a duty to prepare the person(s) to speak about the topics and the entity’s position because the person may not have, and is not required to have, the most knowledge about the topic. As long as the person is sufficiently prepared, the story should end.   If the person says “I don’t know” or “I don’t recall” during the entire deposition or gives wishy-washy answers (based on their lack of preparation), than that it is a different story.  But assuming the person is prepared, if the opposing party does not like the answers they are not precluded from taking depositions of other persons, or even the designated representatives, based on their personal knowledge. Otherwise, everyone will move to depose the person they want to serve as the corporate representative (which is probably the person with the most knowledge) which waters down this rule.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Benefit of Corporate Representative Depositions

Posted by David Adelstein on March 15, 2015
Depositions, Evidence / Comments Off on Benefit of Corporate Representative Depositions

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Depositions are a routine form of discovery in civil disputes. In disputes involving businesses or governmental bodies (the “Entity”), the opposing party will take what is known as a corporate representative deposition.

In a corporate representative deposition, the party taking the deposition will designate topics that they want the Entity to answer questions about. The Entity then has to duty to prepare a representative or representatives to answer questions relating to the topics. The Entity has discretion on the representative(s) it chooses to answer questions relating to the topics provided that the representative(s) it chooses is reasonably prepared. For example, assuming there are ten topics that the Entity will be asked questions about, the Entity may elect to designate different representatives to answer questions on select topics.

The benefit of a corporate representative deposition is that the Entity is answering questions on behalf of the Entity (and not necessarily as it pertains to their personal knowledge). This means the representative is designated to bind the Entity to his/her answers to the questions relating to the applicable topics.

Regarding corporate representative depositions, Florida Rule of Civil Procedure 1.310(b)(6) provides:

“In the notice a party may name as the deponent a public or private corporation, a partnership or association, or a governmental agency, and designate with reasonable particularity the matters on which examination is requested. The organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to do so, to testify on its behalf and may state the matters on which each person designated will testify. The persons so designated shall testify about matters known or reasonably available to the organization. This subdivision does not preclude taking a deposition by any other procedure authorized in these rules.”

 

A good discussion of corporate representative depositions is contained in the Fourth District Court of Appeal’s opinion in Carriage Hills Condominium, Inc. v. JBH Roofing & Constructors, Inc., 109 So.3d 329, 334-336 (Fla. 4th DCA 2013) (internal citations and quotations omitted):

“As the “voice” of the entity, the witness is required to testify about matters known or reasonably available to the organization. The organization must prepare the designee to the extent matters are reasonably available, whether from documents, past employees, or other sources. That preparation must enable the designee to give complete, knowledgeable, and binding answers on behalf of the corporation. If the deponent cannot answer questions regarding the designated subject matter, the corporation has failed to comply with its Rule 1.310(b)(6)….

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Rule 1.310(b)(6) does not require—or for that matter even contemplate—that the corporation produce the witness with the “most knowledge” on the specified topic(s), and the witness is not required to possess any personal knowledge at all.

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Utilized properly, Rule 1.310(b)(6) streamlines the discovery process and gives the corporation being deposed more control by permitting it to select and prepare a witness to testify on its behalf. In exchange for that control the entity is required to have the right person present at the deposition. This of course benefits the requesting party as it prevents the corporation from frustrating the opposing party’s discovery by simply playing ‘ping-pong’ with him: the first official would disclaim knowledge, as would the second, and so on.

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When a Rule 1.310(b)(6) deposition is properly noticed and conducted, the testimony of the designee is deemed to be the testimony of the corporation itself. As such, the testimony is binding on the entity. That does not, however, mean that the testimony is akin to a judicial admission which conclusively establishes a fact and estops the corporate party from offering other evidence on the matter. Rather, testimony given at a Rule 1.310(b)(6) deposition is evidence which, like other deposition testimony, can be contradicted.”

 

Furthermore, a great benefit of a corporate representative deposition is that the testimony can be used by the party taking the deposition for any purpose. This means the testimony can be used at trial as substantive evidence (during a party’s case-in-chief, portions of the transcript can be read into evidence) or as impeachment evidence (to impeach the testimony of a witness). To this point, Florida Rule of Civil Procedure 1.330(a)(2) provides:

“The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent or a person designated under rule 1.310(b)(6) or 1.320(a) to testify on behalf of a public or private corporation, a partnership or association, or a governmental agency that is a party may be used by an adverse party for any purpose.”

 

Thus, corporate representative depositions are a valuable tool in disputes and should be utilized. And, a party defending a corporate representative deposition should take steps to determine the representative(s) selected and that the representative(s) is prepared to answer questions relating to the topics. Also, since the representative(s) will be binding the Entity to his/her answers, it is important that objections are preserved for the record during the deposition if the representative(s) is asked questions outside of the designated topic areas.  Why?  Because you do not want the Entity bound to answers to questions in which that representative(s) was not designated as a representative to bind the Entity.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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