Preparing for Your Rule 30(b)(6) Records Custodian Deposition

Insight Delivered | Confidence InspiredInsight Delivered | Confidence Inspired

Preparing for Your Rule 30(b)(6)Records Custodian Deposition

Tuesday, May 5, 20202:50 p.m. – 3:40 p.m. CDT


Your Presenters

Martin T. Tully, Esq.Actuate Law LLC

Jennifer W. Sprengel, Esq.Cafferty Clobes

Meriwether & Sprengel

Kelly M. Warner, Esq.Riley Safer Holmes

& Cancila LLP


Housekeeping matters…

Go to https://thesedonaconference.org/MER2020 for• PowerPoint slide deck• Additional materials• Online session evaluation & CLE certificate request form

Attendance in this session is eligible for CLE credit!• You must answer EACH online polling question during this session• Submit certificate request online

https://thesedonaconference.org/MER2020


Your Worst Nightmare . . .

• Contentious litigation and discovery process

• Opponent questions sufficiency of your organization’s preservation, search, and production of ESI

• Court has allowed some “discovery on discovery”

• You’ve been asked to testify!


Proper Preparation Prevents Poor Performance

• Understanding the nature of the PMK deposition

• Choosing the right witness(es)• Getting educated on the

designated topics• Getting into fighting shape• Mastering the Rules of the Road• Practice makes perfect


Know the Rules – Federal Corporate Representatives

Federal Rule of Civil Procedure 30(b)(6)Notice or Subpoena Directed to an Organization. In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization 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. A subpoena must advise a nonparty organization of its duty to make this designation. The persons designated must testify about information known or reasonably available to the organization. This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules.


Know the Rules – State Corporate Representatives

Illinois Supreme Court Rule 206(a)(1) Representative Deponent. A party may in the notice and in a subpoena, if required, name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons to testify on its behalf, and may set forth, for each person designated, the matters on which that person will testify. The subpoena shall advise a nonparty organization of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization.


Know the Rules – Corporate Representatives


Know Why You Were Designated• What is a records custodian?

– The records custodian is the person responsible keeping records in the ordinary course of business.

• In litigation, business records, such as hospital charts, are often allowed into evidence with a certificate signed by the records custodian responsible for the records, verifying the completeness and accuracy of the records or copies thereof.

• In this way, the records custodian is usually saved the duty of appearing in court.


Polling Question 1

(You must provide an answer to qualify for CLR credit)

What is your quest?A. World peaceB. Toilet paperC. “I seek the holy grail”D. Present


Know Your Case• Complaint / Answer / Affirmative Defenses

– Elements of Claims– Defenses to Claims

• Initial Disclosures– Representations about preservation

• Discovery Responses– Representations about data sources

• ESI Protocol

• Documents produced– Record Retention Policy and Schedules

• Prior Testimony• Anticipated Admissions Elicited


Know Your Story

• Make sure you share with Counsel your:– Background– Experience as Deponent– Prior Testimony– Sensitivities

• Substantive• Non-Substantive

– Manner of Speaking– Ability to Follow Guidance


Deposition Preparation Timeline

FINAL PREP J

DEPOSITION

IDENTIFY POTENTIAL EXHIBITS, MATERIALS FOR PREP

BEGIN TO REVIEW

DOCUMENTS RECEIVED

INITIAL PREP SESSION

L

NEXT PREP

SESSION


Preparation: There is no substitute!

SUBSTANTIVE PREP• Who?• What ?• Where?• Why?• When?• How?• Documents• Discovery responses• Other testimony

STRATEGIC PREP• Mechanics, setting, expectations• Formal proceeding, nothing is “off

the record”• Pacing of Q&A• Role and meaning of objections• Questions about documents• Scope of knowledge• Videotaped?• Confidentiality implications• Privilege• Instructions not to answer

DO BOTH


Polling Question 2


What is your favorite color?A. RedB. BlueC. GreenD. Present


Strategic Tips: The Rules of the Road

1. Always tell the truth

2. Listen carefully to the questions askeda) Be sure the question is completeb) Be sure you understand the questionc) Be sure you understand where the examiner is

goingd) Always pause a moment before answering

3. Only answer the questions askeda) Answer only to the best of your recollection

regarding matters about which you have personal knowledge

b) Do not guess, speculate or volunteerc) Generally speaking, less is better, but provide

context where neededd) Your objective is to escape unscathed, not to win

the case

4. Listen to any objections

5. Carefully review documents and exhibits a) Review before responding to questionsb) Know the context before answering

6. A deposition is a formal proceedinga) Do not become too comfortable or complacentb) Do not be fooled by levityc) Nothing is truly “off the record”

7. Depositions are neither races nor marathonsa) Take your timeb) Take your breaks

8. Ask to confer with counsel if you believe a privilege is implicated

9. It is usually best to correct any errors or misstatements on the record


Strategic Tips: To Redirect or To Not Redirect?

• Why would your counsel question you?

– If any facts are needed on the record for purposes of pretrial motions

• Remember the scope of direct.

• Can they be addressed through an affidavit?

– Anything that needs correcting before deposition is closed


Post-Deposition

• Reserve Signature

• Read the Transcript

– As soon as possible

• Suggest Corrections– To inaccurate transcription (not substance)

• Designate Testimony as Confidential– Communicate to counsel and court reporter

within time required by Protective Order

• Deliver Errata Sheet on Time


Polling Question 3


What is the airspeed velocity of an unladen swallow?A. 24 miles per hourB. 11 meters per secondC. Do you mean an African or European swallow?D. Present


Mock Records Custodian Deposition

• Two years into a contentious employment discrimination class action lawsuit

• Based on anomalies in RFP responses and fact witness testimony, plaintiff challenges sufficiency of defendant company’s preservation, search, and production of relevant ESI

• Plaintiff sought and Court allowed Rule 30(b)(6) deposition of company record custodian(s)

• Records custodian/Corporate designee has been sworn . . .


Mock Examination


No further questions at this time. . .


Thank you!

Remember, go to https://thesedonaconference.org/MER2020 for• PowerPoint slide deck• Additional materials• Online session evaluation & CLE certificate request form

https://thesedonaconference.org/MER2020

Preparing for Your Rule 30(b)(6) Records Custodian Deposition

Documents

Transcript of Preparing for Your Rule 30(b)(6) Records Custodian Deposition