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The Effect and Limits of Corporate Representative Testimony

In a variety of litigation contexts, including personal injury litigation, where there is a corporate defendant depositions of a corporate representative have become commonplace. Frequently, these depositions are used to underline the liability of the corporation that is accused of some wrongful act. However, under both the Texas and Federal Rules, the impact and limitations of this form of discovery is frequently obscure.

Statutory Basis:

The Federal Rules of Civil Procedure specifically allow for the deposition of an organization under Rule 30(b)(6): "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."

The Texas Rules mirror this procedure: "If an organization is named as the witness, the notice must describe with reasonable particularity the matters on which examination is requested. In response, the organization named in the notice must - a reasonable time before the deposition - designate one or more individuals to testify on its behalf and set forth, for each individual designated, the matters on which the individual will testify. Each individual designated must testify as to matters that are known or reasonably available to the organization." Tex. R. Civ. P. 199.2(b)(1).

Why Are Corporate Representative Depositions Taken:

The primary purpose of deposing an organization through a representative is to find out its positions on relevant topics to litigation. A corporate representative may provide not just factual testimony, but also the subjective opinions and beliefs of the organization. Brazos River Authority v. GE Ionics, Inc., 469 F.3d 416, 433 (5th Cir. 2006). Because so-called "apex depositions" are generally disfavored, the deposition of a corporate representative may be a pre-requisite to the taking of such a deposition to demonstrate that less intrusive means to obtain the discovery were attempted. See AMR Corp. v. Enlow¸926 S.W.2d 640, 644 (Tex.App.-Fort Worth 1996). Most importantly, even where the discovery sought has already been obtained from individuals, corporate representative depositions are used to 'bind' the corporation to a position. Lead GHR Enterprises, Inc. v. American States Insurance Company¸No. 3:17-mc-91-M-BN, 2019 WL 6381744 at *9 (N.D. Tex. Dec. 14, 2017).

What Duties Does the Corporation Have:

The Rules under both the Federal and Texas systems require the organization to "designate one or more" individuals to testify on the topics designated. See Fed. R. Civ. P. 30(b)(6); See also Tex. R. Civ. P. 199.2(b)(1). Both systems also require that the organization set out which matters each person designated will testify on. Id.

Notably, the Texas rules require that an individual testify as to "matters that are known or reasonably available to the organization." Tex. R. Civ. P. 199.2(b)(1) (emphasis added). The individual therefore testifies not to his or her own knowledge, but to that of the organization. Courts interpreting the Federal Rules have gone so far as to hold that if a deposition representative is deficient, the corporation is obligated to provide a substitute. Brazos River¸469 F.3d at 433.

What Are the Effects of a Corporate Representative Deposition:

Though one of the likely purposes of such a deposition is to bind the corporate defendant, it is an open question what effect the testimony has in this regard. Some Courts have held that a Rule 30(b)(6) deposition "does not bind [the corporation], but does provide evidence that either party may use." Crompton Greaves, Ltd. v. Shippers Stevedoring Co.¸776 F.Supp.2d 375, f.n. 11 (S.D.Tex. 2011). Other Federal Courts have held that the testimony provided by a corporate representative "binds the corporation." Dongguk University v. Yale University¸270 F.R.D. 70, 74 (D.Conn. 2010), See also Brazos River¸469 F.3d at 433. While Courts at the Federal level are split on this proposition, the question appears to be entirely undeveloped under Texas law.

An organization is not obligated to produce the "best person" to testify as to a given topics, or even someone with personal knowledge, but instead may produce a witness who has reasonably prepared to address the subject matters designated. In Re Family Dollar Stores of Texas, LLC¸ No. 4-14-00656-CV, (Tex.App.-San Antonio, April 29, 2015) (unpublished). The corporation arguably cannot be compelled to produce multiple witnesses if it can produce a single prepared witness. Id. A corollary to this obligation, however, is that a failure to prepare such a witness may give rise to discovery sanctions, including attorney's fees, associated with a repeated deposition. Ring & Ring v. Sharpstown Mall Texas, LLC¸ No. 01-16-00341-CV, (Tex.App.-Houston [1st Dist.]) (unpublished).

Finally, as suggested throughout, the topics that are designated govern the scope of the deposition. Topics designated must not be overly broad, and must be relevant to the issues in dispute. Lead GHR, 2019 WL 6381744 at *6. Attorneys forget to limit to the scope of the topics, or the taking of the deposition entirely, at their peril.

For example, where a policy of Uninsured Motorist Coverage is at issue in given litigation, a corporate representative deposition concerning investigation into the accident, the facts of the underlying accident, and even the discovery responses of the corporate defendant itself is more burdensome than probative insofar as it does not reach issues in controversy in the case and the corporate defendant itself was not involved in the underlying accident. In Re Liberty County Mut. Ins. Co., 557 S.W.3d 851 (Tex.App.-Houston [14th Dist.] 2018). Even where the topic itself is probative, an overly broad topic "may subject the noticed party to an impossible task." Lead GHR, 2019 WL 6381744 at *6.

Conclusion:

Attorneys who defend corporate organizations are increasingly called upon to present corporate representatives for deposition. The effect of such a deposition can vary depending on the jurisdiction, or the individual Court, and even with respect to whether the testimony truly binds the corporate defendant. Other obligations, like that to produce a witness who is reasonably prepared, but not necessarily one with personal knowledge, are frequently misunderstood. Attorneys should bear in mind the obligations they and their client have in presenting a representative for such a deposition, and the effect such a deposition may have on the broader litigation.

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