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Not Your Father's Keeper Deposition
Choosing a Witness for the E-Discovery Rule 30(b)(6) Deposition
Jonathan Sablone, Esq., Nixon Peabody LLP
The “Keeper of the Records” Deposition (KOR) has long been a favorite tool of trial lawyers (the author included) to authenticate evidence for trial while simultaneously determining, through the testimony of a live witness, whether the other side (or third party) had actually discharged their document production obligations. In fact, the KOR deposition was a favorite training tool for young litigators because the examination itself, in particular the asking of foundation questions to authenticate documents and overcome hearsay objections, taught invaluable evidentiary and trial lessons. Fortunately for clients (and the partners who were running the cases), there was little risk of disaster, assuming, of course, that the young associate could follow an outline (or at least read a script). Conversely, for the company producing a KOR, the decision as to who to produce was as simple as choosing a clerk, paralegal, or even secretary who could spare a few hours for the deposition.
In the new age of electronic discovery, there has been much press (and hype) over the volume of data, issues unique to electronic records, and the various e-discovery tools available for both production and review. Relatively little attention has been paid to the KOR issues that must be addressed in the electronic age, however, including authentication of data (and overcoming hearsay objections) and determining whether the proffered data satisfied the discovery obligations of the producing party. Even less ink has been spilled on the decision-making required to choose the appropriate witness for electronic KOR depositions. This article highlights some of the issues that litigators and parties face when making the latter decision.
As many of the readers of this publication no doubt know via first-hand experience, KOR depositions addressing electronic discovery are almost non-existent. Rather, these relatively simple depositions have been replaced with much more complex interrogations under Rule 30(b)(6). Rule 30(b)(6) is a tool long used by litigators to take the testimony of the “person most knowledgeable” about topics set out in a schedule attached to the deposition notice. This powerful tool is commonly used for three, primarily trial, purposes: (i) it avoids the necessity of guessing who, within the corporate framework, has the information needed; rather, the rule puts that burden on the recipient of the deposition notice or subpoena; (ii) it obligates the corporate entity who received a Rule 30(b)(6) notice to conduct a diligent search of its records and personnel and to educate the deponent who speaks (in a fiction only lawyers could have created) as and for the corporation; and (iii) because the witness speaks directly for the corporation, testimony provided in a Rule 30(b)(6) deposition binds the corporation, and is a party admission for all purposes at trial under Rule 32(a)(2). For these reasons, unlike the choice of a KOR witness, the choice of a Rule 30(b)(6) witness has always been made with care.
Not surprising, then, in the electronic era, litigants now routinely eschew KOR depositions for the more powerful Rule 30(b)(6) variety when they want to authenticate data and determine whether the other side has met its discovery obligations. This has led to the development of standard schedules (commonly available from most law firms, e-discovery vendors, and consultants) that call for the production of the “person most knowledgeable” with respect to the location, format, and character of a company’s data. Rather than simply meet the goals annunciated above, however, these depositions have become a treasure trove of information for the party taking the deposition. More often than not, the depositions have been used to hijack entire cases while parties fight over whether data has been properly preserved (spawning spoliation fights); whether a company’s servers, hard-drives, and storage devices were properly searched (spawning motions to compel and production fights); and whether or not data has been transferred to executives’ or employees’ personal computers or storage devices, such as USB flash memory or iPods (spawning third-party subpoena practice and related discovery disputes).
Most of these disputes can be avoided if the appropriate person is chosen to represent the company as its Rule 30(B)(6) designee. In order to do so, parties should follow three simple rules:
I. Do Not Make the Choice Lightly
Most in-house counsel grew up in the age of the KOR, so it is not surprising that many view the choice of a Rule 30(b)(6) designee on e-discovery topics as a ministerial task that should be delegated to the least busy clerk or paralegal in the company. It is not uncommon to hear in-house counsel tell his or her outside litigation team that they simply cannot justify the use of an “important” technology employee for such a task. Invariably, however, the proffered witness cannot adequately explain the technology or the data; gets easily confused; and makes “admissions” that are simply inaccurate or incomplete. The result is often a second deposition with the appropriate “important” employee that now must make up for the first witness’ mistakes. The resulting harm to the case (not to mention the increased legal fees and executive effort) is often irreparable.
II. Choose Someone with a Technology Background
In many instances, the Rule 30(b)(6) designee for e-discovery topics is a cross between a traditional paralegal and a technologist. While some of the topics may appear to call for a traditional paralegal (e.g. paper production, steps taken to comply with discovery requests and persons and sources searched for responsive materials), most companies would be wise to err on the side of a technologist (or at least to designate the traditional paralegal only for the appropriate topics, and leave the remainder to someone with a technology background and experience). In the Rule 30(b)(6) context, the “person most knowledgeable” does not have to have first-hand knowledge; rather, the person can “be informed” by the company on the topics upon which he or she will testify. It is far easier for a technologist to learn the steps the company took in complying with a discovery request than it is for a paralegal to learn how the company’s servers and technology are configured, where they are located, how data is kept, how and when it is backed-up, etc. While IT staff may be in greater demand (and have less time available), the choice of an IT professional for such depositions will, in the long-run, save the company time and money, and, may ultimately be the decisive factor in the outcome of the case (whether through trial or settlement). If a company’s caseload is sufficient, and if resources permit, the corporate litigant should consider hiring full-time IT staff whose duties are limited to complying with electronic discovery requests and testifying at Rule 30(b)(6) depositions.
III. Educate, Educate, Educate
Whoever speaks for the company at the Rule 30(b)(6) deposition, there is no substitute for adequate education and preparation prior to the deposition. Unlike almost any other deposition, the e-discovery Rule 30(b)(6) deposition has the capacity to completely sidetrack the litigation for months while driving litigation and motion-practice costs exponentially high. Only a well-prepared witness will have the proper frame of reference to avoid innocent pitfalls that can cause such damage.
The choice of a Rule 30(b)(6) designee for e-discovery issues may be the most important choice a party can make in the litigation (primarily because the company has control over the spokesperson and is not a hostage to the facts). Making the correct choice is simply a matter of good strategic planning, coordinating with outside counsel, and devoting the appropriate resources to the endeavor. It is not a time for shortsighted “savings” or playing company politics.
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Author Bio:
Jonathan Sablone is a partner in the Boston office of Nixon Peabody LLP. He concentrates on complex commercial and financial services litigation matters and has developed an integrated approach that standardizes the electronic discovery process across all of the firm’s offices and litigation practice groups.