A Primer on Corporate Depositions in Insurance Litigation

A Corporate Deposition is a formal legal proceeding where lawyers for the parties to a first-party claim or bad faith lawsuit ask questions of Corporate witnesses who have knowledge of facts with respect to specified topics.

Your Deponent will be testifying on behalf of the Company as a Corporate Representative, as to items the Company knows regarding specific, limited areas of inquiry that will be identified by Defense Counsel for the Company in advance of the Deposition such as Claim Best Practices, Claim Procedural Documents or the subject Claim File. Those Claim Topics will be identified In the 30(b) (6) notice, and your Deponent will not testify regarding their personal knowledge. However, your witness will testify as to how the company operates in general, and why the company’s actions in a particular claim were reasonable. Should the case proceed to trial, the Corporate Representative will also be the “face” of the company seen by the jurors.

A Judge is not present during the Deposition, and it takes place outside of a courtroom. But there is no significant difference between testimony at a Deposition and testimony in the courtroom. Deposition witnesses answer all questions under oath, and the laws of perjury and false swearing apply. The questions and answers will be recorded by an official court reporter, who will prepare a writ- ten transcript of the Deposition. A Judge may later rule on matters that arise during a Deposition, and the recorded testimony of the witness may be used as evidence at trial.

Preparation is Key

There is no reason for your Deponent to be apprehensive regarding a Corporate Deposition, but the key to being comfortable is through detailed and comprehensive preparation. Your Defense Counsel should meet with the Corporate Representative to review all aspects of the specific claim, together with any and all topics of anticipated cross-examination from opposing counsel.

While each State’s Rules may differ slightly, when a Corporation is a party to litigation, your opponent may seek testimony from the “Corporation” as prescribed by the Civil Rules, with language similar to the following:

A party, in the party’s notice, may name as the deponent a public or private corporation, a partner- ship, or an association and designate with reasonable particularity the matters on which examination is requested. The organization so named shall choose one or more of its proper employees, officers, agents, or other persons duly authorized to testify on its behalf. The persons so designated shall testify as to matters known or available to the organization.

As a precursor to the deposition, the opposing party must give notice “with reasonable particularity” as to the matters upon which testimony is sought, and those matters should be the focus of your preparation. Have your Deponent reflect on the facts of the claim case between the date your Deponent receives the notice and the Deposition. Your Defense Counsel should interview the Deponent in order to familiarize the witness with the claim issues that they will be asked to speak about. Generally speaking, your Deponent should not review any claim procedural documents or discuss the facts of the claim with anyone unless otherwise specified by Defense Counsel. Review of claim documents that the Deponent has never seen may create unnecessary confusion about what they may know and when they may have known it. Innocent discussion of the case with others may create the erroneous impression that the Deponent and other witnesses got together and “got their stories straight.” Your Deponent may at some point need to review claim documents and talk with others but have your Deponent check with Defense Counsel prior to doing so. Your Deponent may make notes as they think about the case, but the Plaintiff party’s lawyer may have the right to look at those notes. Therefore, be very prudent in having your Deponent write anything during the deposition.

Never Exaggerate

Your Deponent should not engage in casual conversation. Your Deponent’s demeanor and careful, thoughtful responses to questions should reflect the high seriousness of the Deposition. Do not try to improve upon the facts by stretching them. The opposition can exploit such efforts very effectively.

Provide the Correct Answer

If during the course of the Deposition the Deponent discovers that they may have given an incorrect or inaccurate answer, your Deponent will have the right to correct prior testimony. Your Deponent should say, for example — “If I gave that answer a few minutes ago, I must have been con- fused because the correct answer is. . .”

Be Accurate

Some things we are certain of, some things we are almost certain of, some things are our best memory, but we could easily be wrong. There are many shades in between. When your Deponent is being questioned, have them testify accurately and not get badgered into adopting a position that is either weaker or stronger than the truth as to the strength of the Deponent’s memory. When the Deponent is certain, however, do not have them qualify favorable claim facts. Have them be as definite as possible. Do not have them say, for example, “I don’t recall that it was,” when your Deponent A party, in the party’s notice, may name as the deponent a public or private corporation, a partnership, or an association and designate with reasonable particularity the matters on which examination is requested. The organization so named shall choose one or more of its proper employees, officers, agents, or other persons duly authorized to testify on its behalf. The persons so designated shall testify as to matters known or available to the organization. actually means “I know that it was not.” Avoid expressions, such as the following, that weaken favorable testimony: “I think…, I guess…, I believe…, I might have…, maybe…, perhaps…, possibly…, probably…, correct me if I’m wrong…, if I’m not mistaken…”

Never Guess or Speculate

Frequently a witness will be asked a question and despite the fact that they feel that they should know the answer, they do not. Typically, this situation will arise when your Deponent is not familiar with the Claim Best Practices as to a topic, but instead, is being asked about specific claim incidents. The Deponent may be tempted to make a logical guess rather than state what the Deponent may not know. Do not have them guess. If your Deponent does not know the answer, your Deponent may appear ignorant or evasive by stating what they may not know. Your Deponent should nevertheless state what they do not know. A guess about an answer can show that they do not know what they are talking about or suggest that they are deliberately misstating the truth.

Only Give Information Within the Scope of the 30(b) Deposition Notice

Remember that your Deponent is speaking on behalf of the company regarding the company’s knowledge. Unless otherwise authorized by Defense Counsel, your Deponent should limit their responses to information within the scope of the 30(b) Deposition notice. Do not tell the examining attorney where the information can be obtained unless your Deponent is asked such a question.

Given the importance and binding nature of Corporate Representative Depositions, in first-party matters and/or bad faith matters such a proceeding must be taken seriously by you and your Defense Counsel. If your Defense Counsel and your Corporate Representative are fully prepared, your witness will not be surprised by any question during the deposition. Hopefully, these steps will assist you and leave your corporate deponent feeling positive about the experience.

Harry joined Rolfes Henry in 2021 and serves as an Associate in the Cincinnati office. Harry’s litigation experience has spanned nearly twenty-five years and has included everything from hundreds of first-party casualty and property matters, premises cases, and personal injury claims throughout the contiguous United States.

Harry has extensive experiences in high-stakes extra-contractual, class actions and bad faith matters to include corporate discovery on behalf of Fortune 500 corporations by virtue of his experience as Assistant General Counsel at Nationwide Mutual Insurance Company’s Office of General Counsel as well as similar roles for State Farm Insurance Company, AIG Insurance Company, State Auto Insurance Company and EMC Insurance Company.