30B6 Depositions Preparing for and Defending Depositions of

30(B)(6) Depositions: Preparing for and Defending Depositions of Hospital Representatives MEG HATFIELD YANACEK, ESQ, MPP, CPHRM 404 -954 -6940 HALL BOOTH SMITH, PC WWW. HALLBOOTHSMITH. COM

Agenda • How are plaintiffs’ counsel using 30(b)(6) depos? • What is a 30(b)(6) depo? • Who should we pick to represent the company? • How do we prepare the representative? • How do we use against the plaintiff?

What is a 30(b)(6) deposition? • A deposition of one or more officers, directors, or managing agents, or other persons who consent to speak on behalf of the corporation • A deposition of the corporation itself

The plaintiffs’ bar is increasingly using the 30(b)(6) deposition as an offensive weapon.

Policies and procedures Why are they wanting 30(b)(6) depos? Audit trails ESI/Medical Record metadata Locator badge data Training and certification Peer review procedures HR Files

Example

The Notice

O. C. G. A. § 9 -11 -30(b)(6) The notice must describe with “reasonable particularity” the matters for examination.

The 30(b)(6) Deposition Notice • Topics that are Fair Game • • Facts Sources of Information Policy and procedures Organizational structure and reporting Data maintenance issues Subjective Beliefs and Opinions Factual Basis for Claims and Defenses* Factual Basis for Legal Positions*

The 30(b)(6) Deposition Notice • Topics that are NOT Fair Game • • • Information subject to privilege or work product Information not reasonably available to corporation Information that is unduly burdensome to obtain Expert-type opinions (if not qualified) Legal conclusions Information that is not tailored in time or scope to “immediate needs of the case. ”

But be careful… If that preparation means tracking much the same investigative ground that counsel and the risk management/peer review committee have already traversed, but independently of that investigation, so be it. Wilson v. Lakner, 228 F. R. D. 524, 529 (D. Md. 2005)

But be careful… • Privilege Concerns Great American Ins. Co. v. Vegas Const. , 251 F. R. D. 534 (D. Nev. 2008)

The 30(b)(6) Deposition Notice Object if: • Overly broad • Vague • Privileged • “including but not limited to” language is used • Outside scope of 30(b)(6) deposition

The 30(b)(6) Deposition Notice Many courts have found that “when the proposed deposition topics are complex and highly technical, or involve legal issues that require the assistance of an attorney, the interrogatory is the preferred device. ” Darbee. Vision, Inc. v. C&A Mktg. , Inc. , No. CV 18 -0725 AG (SSX), 2019 WL 2902697, at *7 (C. D. Cal. Jan. 28, 2019)

The 30(b)(6) Deposition Notice • Correspond/Telephone Call with Opposing Counsel • Eliminate Topics or Reduce Scope • Consider Serving Objections (but do not rely on them) • Build Paper Trail • Must Get Any Agreement In Writing

The 30(b)(6) Deposition Notice • Motion for Protective Order BEFORE Deposition or Motion to Compel • Meet and Confer • If Good Cause Can Be Shown Cannot Unilaterally Cancel The Deposition!

Preparing for 30(b)6 deposition

So what is our duty? Duty to Investigate, Designate, and Prepare Witness • Corporation must be prepared to testify as to matters “known or reasonably available” to the organization… • O. C. G. A. § 9 -11 -30(b)(6)

So what is our duty? Duty to Investigate, Designate, and Prepare Witness • Corporation must designate one or more individuals to testify on some or all topics • Does not have to be a current employee. Company can designate “other persons who consent to testify on its behalf. ” • Must designate knowledgeable witness or witnesses who can be supplied the knowledge

Obligations of the Company Duty to Designate - Who? • Select Witness • • • Officer Director Managing Agent Current Employee/Former Employee Non-employee Attorney Dual Role Witnesses No or Little Institutional Knowledge Issues The Witnesses Who May Know TOO MUCH Make a reasonable and good faith effort to obtain necessary information

Obligations of the Company Duty to Prepare United States v. Taylor, 166 F. R. D. 356, 361 (M. D. N. C. 1996)

Duty to Prepare • More difficult to contradict information once deposition is over • “Unless it can prove that the information was not known or was inaccessible, a corporation cannot later proffer new or different allegation [in a summary judgment affidavit] that could have been made at the time of the 30(b)(6) deposition. ” • Rainey v. American Forest & Paper, 26 F. Supp. 2 d 82, 94 (D. D. C. 1998).

Duty to Prepare • Preparation = knowledgeable responses • A hospital's designated agent was unable to provide knowledgeable answers regarding several noticed deposition topics was equivalent to nonappearance. Omega Hosp. , LLC v. Community Ins. Co. , 310 F. R. D. 319 (E. D. La. 2015).

Begin With the End In Mind • Goal is to catch the defense not being fully prepared. • Will use it to obtain additional discovery. • Will use it for admission against interest. • We need to be prepared to answer the plaintiff challenge and follow with our own.

Prepping the Witness(es) • PREPPING 30(B)(6) WITNESS • Thorough preparation is necessary • Bring Witness up to date on issues in the case • Present necessary documents for review to witness • Understand these documents will likely be produced to the other side

Prepping the Witness(es) • Have witness verify factual information related to issues in the case. • Prep the witness on the importance of various privileges (work-product; quality, assurance, or peer review privileges) • Investigate contentions and allegations in complaint

Preparing the Witness(es) Begin Preparation at the Outset of the Lawsuit • Strategic Document Collection/e. Discovery • Identify Potential Corporate Witness(es) • Craft Defense Themes • Research Judge and Opposing Counsel • Consider Protective Order for Proprietary or Privileged Information • Privilege Log

How to Prepare • Organize documents by topic • Refer to e-Discovery Strategy • Binders or other Document Management • Prepare Deponents • Mock deposition, litigation consulting companies, case themes • Review depositions previously taken in case • Investigate Plaintiff’s counsel – prior depositions, articles, presentations, motions, etc.

Lines of Questioning Outside the Scope of 30(b)(6) Notice • Limited designations by corporation • Prepare your witness for questions outside the scope of the Notice • Don’t limit preparation and investigation to parameters set out in notice. • Be mindful of Plaintiff’s claims and advance your defense strategy during prep

The Deposition Itself

30(b)(6) Depositions Posed to Verify Document Production • Moving party must show Document Production Request is Relevant to Issues in the claim or defense of the case. • Common in E-Discovery disputes. • Medical Malpractice Context: • • • Safety Other “similar incident” Other lawsuits/complaints Credentialing Audit trails

The Deposition Itself • Counts as 1 deposition • 7 Hours for EACH designee • Deposition Location – location of the designee • Testimony of the Designee can BIND Corporation • “I don’t know” can be problematic • Objections • Individual vs. Corporate Knowledge • Two depositions

The Deposition Itself Common Defense Themes • • Good Corporate Citizen Importance of Safety [Any] Criticisms of Co-Defendants [Any] Criticisms of Plaintiff

The Deposition Itself • Notes/Documents Reviewed • Assume NOT PROTECTED • Conversations During Breaks • Consider Re-direct

After the Deposition

Duty to Substitute • Corporation has duty to substitute another person once the deficiency of its designee became apparent during the deposition. • If the corporation fails to do so, the court can impose various sanctions that may include the preclusion of evidence at trial. Other sanctions include awarding attorneys' fees and costs. Marker v. Union Fid. Life Ins. Co. , 125 F. R. D. 121, 126 (M. D. N. C. 1989) ; The Board of Drainage Commissioners of Pitt County v. Dixon, et al. , 158. S. E. 2 d 469 (N. C. App. 2003).

Post Deposition Considerations • Duty to Designate Substitute • Errata • Use at Trial

How can it be used?

O. C. G. A. § 9 -11 -30(b)(6) • Deposition testimony can be used for any purpose at trial, regardless of the witness’s availability • Binds the corporation indefinitely

But there are limits… • Testimony regarding medical standard of care or causation is inadmissible unless the witness is properly qualified as an expert. Yugueros v. Robles, 300 Ga. 58 (2016)

Questions of Law • The North Carolina Court of Appeals recently held that a corporate party is not bound by testimony that constitutes an answer to questions of law given by its 30(b)(6) witness. Bullard v. Wake County, 729 S. E. 2 d 686 (N. C. App. 2012)

Limits on Admission • Statements in Rule 30(b)(6) depositions are not judicial admissions. • United States v. Taylor, 166 F. R. D. 356, 363 (M. D. N. C. 1996) • “[T]estimony given at a Rule 30(b)(6) deposition is evidence which, like any other deposition testimony, can be contradicted and used for impeachment purposes. ” • Indus. Hard Chrome v. Hetran, Inc. , 92 F. Supp. 2 d 786, 791 (N. D. Ill. 2000)

Not Judicial Admissions While such testimony is an evidentiary admission, it does not have conclusive effect and can be corrected, explained, or supplemented by the corporation with additional evidence. Snapp v. Burlington Northern Santa Fe Railway Co. , 2018 WL 2168653 (9 th Cir. May 11, 2018).

Corporate Representative Deposition Checklist • Upon Receipt of Deposition Notice • Deposition ü Carefully Review Scope of Notice ü Object to questions outside the scope of Notice, but allow witness to answer ü Serve Objections/Letter ü Lacks reasonable specificity and otherwise vague ü Contact counsel to discuss breadth and any ambiguities ü Consider privileged information as basis for objection ü Limit discussions during breaks ü Confirm scope and agreement in writing ü Motion for Protective Order before Deposition ü Duties ü To Investigate ü To Designate ü To Prepare ü Identify appropriate witness(es) – need not be “PMK” ü Prepare documents based on topic for designee’s review ü Craft Defense Themes with Witness • Post-Deposition Consideration ü Errata ü Provide Substitute Designee if necessary