Defending the 30(b)(6) Corporate Representative Deposition and the Reptile
Source: May 2023 • Joseph W. Pappalardo, Esq, Gallagher Sharp LLP & Matthew A. Smartnick, Esq., Gallagher Sharp LLP
The Rule
Rule 30(b)(6) applies to depositions of both party and non-party corporations, requiring that the noticing party issue a subpoena to non-party deponent corporations. The rule has two requirements: the notice must describe with "reasonable particularity" the matters for examination, and the designee must testify about information known or reasonably available to the organization. As regards the latter, the designee must make reasonable inquiry within the organization and the organization must educate the designee. Once the corporation has designated a deponent on a particular issue, it becomes bound by the designee's testimony, which may be used "for any purpose" at trial, regardless of whether that individual is available to testify. A Rule 30(b)(6) deposition does not foreclose a deposition by any other procedure under the Federal Rules.
Notice Requirements
The notice required by Rule 30(b)(6) must provide the date, time, and place for taking the deposition, specify the name and address of the entity being deposed, set forth the matters for examination with reasonable particularity, indicate the method by which the testimony will be recorded and whether documents are sought, and be accompanied by a document request or formal Rule 34 request for the production of documents. A corporation's Rule 30(b)(6) witness should be deposed in the district of the corporation's place of business, "subject to modification, however, where justice requires." Plaintiff’s attorneys sometimes try to depose a corporate representative at company headquarters or other sensitive locations, but a motion for protective order should be considered.
A protective order should be granted by the court when the moving party establishes "good cause" for the order and when justice requires a protective order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. The court will consider the facts, select the place of examination, and determine what justice requires with regard to payment of expenses and attorney fees. Unlike a deposition notice pursuant to Rule 30(b)(1) for the deposition of other witnesses, the Rule 30(b)(6) notice must describe with reasonable particularity the matters to be examined, and objections should be made immediately if a notice is unclear.
Defendant's counsel should respond to each area of inquiry with detailed and thorough objections where necessary, including objections to proportionality, relevance, materiality, broadness, harassment, mental impressions of counsel, matters in the province of experts, and matters for which there is no corporate knowledge. It is common and best practice for opposing attorneys to meet and confer on all of these issues prior to the deposition.
Limits on the Deposition
A Rule 30(b)(6) deposition is treated differently from other depositions for purposes of the Federal Civil Rules 10-deposition rule. Where a corporation designates multiple designees to testify on different topics, each designation will count as a separate deposition. A Rule 30(b)(6) deposition should be structured to address questions related to the claims at issue. The reasonable particularity standard means that the requesting party must designate specific areas that will be investigated, and broad or generic notices are not sufficient.
Deponent Corporation’s Duties
When a corporation receives a Rule 30(b)(6) deposition notice, it must designate one or more witnesses to testify and educate them on the matters for examination. The designated representative(s) do not need to be the person most knowledgeable- “PMK” -about the matters (the PMK concept is often misunderstood), but must be able to provide binding answers on behalf of the corporation.
The purpose of the Rule 30(b)(6) witness is to represent the collective knowledge of the corporation, and not have the witness testify to the designated witness’s personal opinions or beliefs. The designated individual may and will likely need to review materials and meet with people from within the organization to become educated enough to speak for the corporation. The witness can be examined on the corporation's opinions and beliefs.
The designated witness must be qualified to testify and must answer the questions, unless the area of inquiry is not within the knowledge of the corporation, is privileged, or is harassing. In some cases, more than one corporate witness may need to be presented, but careful preparation and coordination is key in such situations. If possible multiple deponents should be avoided to minimize the possibility of inconsistent testimony.
Generally speaking, an answer of “I don’t know” by the corporate representative during the deposition is not an adequate response.
Thus, one of the most important tasks is choosing the correct deponent. Simply relying upon “legacy” witnesses because they have testified so many times is not advisable. Counsel and the corporate defendant need to carefully evaluate who is the right person for the particular deposition, who makes the best witness, and who can most effectively express the corporation’s position.
Counsel for the corporation should be careful to adequately and repeatedly prepare the corporate representative prior to the deposition to make sure the individual is adequately prepared to testify as to matters reasonably known to the company. This is not the time to cut corners. Preparation sessions should include uncomfortable mock cross-examination, possibly outside witness training, videotaping of preparation sessions. Insurance companies should be aware that a 30(b)(6) deposition is, more than most depositions, a potential game-changer and can be a risk for a nuclear verdict.
The Reptile
As is well known by now, a major and dangerous aspect of preparing a Corporate 30(b)(6) involves recognizing and neutralizing a Reptile claim.
The Reptile Theory is a trial strategy used by plaintiffs, based on the 2009 book "Reptile," which relies on invoking fear and danger reactions in jurors. The theory argues that the defendant's conduct poses a danger to the jurors, their family, and the community and that a jury verdict is the only way to prevent that. The authors of the Reptile claim over $7 billion in settlements and verdicts and have created an entire industry of books, seminars, and publications. The theory appeals to the fear and emotional sense in jurors without actually calling out the "Golden Rule," which is almost universally disallowed in courts.
The Reptile seeks to convince jurors that no harm is acceptable, no risk is acceptable, and all risk can result in catastrophic results. Jurors are persuaded that defendants must eliminate all risk and follow all safety rules, no matter how unrealistic that may be. The community suffers because the danger imposed by the defendants is imminent and ubiquitous, and if the community is at risk, the jurors and their families are at risk.
There is solid neuroscience which supports the Reptile theory, focusing on the "subcortical" part of the brain, which consists of the brain stem and amygdala. These portions of the brain are primitive and respond and react to threats and fear, invoking the fight or flight response. Reactions are involuntary, automatic, and not reasoned. The Reptile theory seeks to tap into these primitive unevolved brain instincts.
The Reptile's unevolved primitive brain's corollary or opposite is the idea that jurors should rely upon their "primate" evolved brain. The primate brain relies upon the frontal lobe and frontal cortex anatomy, appealing to logical reasoning and cognitive judgments that we use in our civilized society. The anti-Reptile asks the juror not to be fooled by being scared or made afraid and to decide the case based upon civilized societal norms.
To counter the Reptile argument, preparation is paramount. There should be at a minimum two pre-deposition meetings to prepare the corporate representative. It is essential to show that the corporate records, especially those required by regulations, are well kept. Compliance with federal law and the pre-employment investigation and post-employment training and recurrent training of drivers is critical. Before deposition preparation, the corporate representatives' cross and direct examination must be fixed, and all of the pre- and post-accident documents have been generated.
The corporate representative should never admit open ended safety questions such as “no risk is acceptable”, “all harm must be eliminated”, and “violation of safety rules endangers the community.” The witness must force opposing counsel to be specific about the facts of this accident and not open ended generalizations. Plaintiff's counsel must be forced to define “safety” and of course the witness should never admit that trucks are “less safe”, that they are harder to maneuver, brake, steer, that they are dangerous, or that truck drivers are professionals like doctors or lawyers, and so forth.
The witness must keep bringing the focus of the deposition back to the facts of this accident. Instead of admitting that the actions of the driver and the company were inevitably unsafe, the witness should be prepared to distinguish between facts of the accident which are relevant as opposed to irrelevant facts.
Instead of open ended yes or no responses, the witness should be encouraged to respond "not necessarily" to open ended questions about safety.
All corporate deponents must be prepared on, and know, what was said in prior depositions. To the extent it is truthful and can be supported corporate witnesses should be consistent in their responses. Again, national discovery counsel or a specific in-house program regarding depositions should be considered.
In summary, the Reptile Theory is a powerful and effective technique used by plaintiffs that relies on invoking fear and danger reactions in jurors. While it has its controversies, there is solid neuroscience that supports the Reptile theory. To counter the Reptile argument, it is essential to show compliance with federal law and to have all pre- and post-accident documents ready. The primate brain appeals to logical reasoning and cognitive judgments that we use in our civilized society, and decision-making should be based on reason, not fear.
Key Takeaways
Although nothing can guarantee the elimination of dangerous deposition testimony or resulting high verdicts, the techniques described here will help the defense lawyer and corporate representative properly prepare for a 30(b)(6) deposition as well as how to recognize a Reptile claim and how to counter it. Here are the key takeaways:
1. The Reptile Theory is an effective and dangerous technique for increasing damages. Careful recognition of it and the physiology upon which it is based are crucial to proper corporate representative preparation.
2. The corporate policies, documents, and actions required by FMCSRs are key attack points for the Reptile. The corporate representative and defense counsel must be intimately familiar with them and how to best describe them in a deposition.
3. Corporate representatives must recognize key Reptile terminology and not fall into the trap of answering open ended questions about safety, danger, eliminating risk, and needlessly endangering the community.
4. Frequent and intense preparation is a key. Never should a defense lawyer scrimp on proper preparation, mock cross-examination, and intense document review. At least two to three deposition preparation sessions are crucial for any corporate representative.
5. A formal program, in-house or through national discovery counsel, should be considered to provide consistency of responses to paper discovery and deposition examination.
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