Defending corporate representative depositions in the new reality.

If there is one lesson all trial lawyers have learned over the last year, it’s that life and the practice of law must go on, even in the face of upheavals affecting our profession. Depositions of corporate representative witnesses under Rule 30(b)(6), Federal Rules of Civil Procedure is a prime example of how lawyers must learn to adapt to changing times and circumstances.

Rule 30(b)(6) of the Federal Rules of Civil Procedure, along with its state equivalents, has become an integral part of trial practice defending corporations. The Coronavirus pandemic, however, has caused dramatic changes in practice under this Rule, along with alterations in many other aspects of law practice. These changes are all too familiar to most trial counsel, and need not be discussed in detail here.

The formal process under 30(b)(6) still begins with receipt of a notice of deposition for the corporation, setting forth the areas of examination at the deposition and, at least frequently, accompanied by a duces tecum attachment demanding the production of documents and perhaps other materials for the deposition. These still need to be reviewed with care, and appropriate responses drafted.

Selection and preparation of the corporate witness or witnesses still must be undertaken with extreme care. However, a significant change is that in making the selection, counsel and client alike must recognize that close in-person contact between counsel and witness in preparation for the deposition may well not be possible to the extent customary pre-Covid.[1]

What has definitely changed in the last year is the conduct of the deposition itself. Several recent decisions have pointed out that Fed. R. Civ. P. 30(b)(4) has provided for remote depositions for years, and that it ill behooves counsel to appear bewildered when circumstances dictate the use of technology. Notwithstanding, cases arising earlier in 2020, within the first few weeks of the global shutdown, exhibited considerable distress on the part of defense and plaintiffs’ counsel at the prospect of undertaking remote depositions of witnesses who, at least in many cases, will  be crucial.

Cases[2] from earlier in 2020 tended to demonstrate some parties’ lack of comprehension of potential and actual effects of COVID-19, and measures necessary to discourage disease transmission. Plaintiffs and defendants, jointly on occasion, sometimes sought an indefinite delay in discovery, until the pandemic subsided. Courts generally declined to agree to such measures, exhibiting some impatience with parties’ reluctance to proceed with remote discovery, pointing out the provisions of Rule 30(b)(4), and reminding counsel of the duty to carry on using available technology.[3]

For example, in Grano v. Sodexo Mgt., Inc., et al., 335 F.R.D. 411, 2020 WL 1975057  (S.D. Cal. April 24, 2020), Plaintiff attempted to depose a number of corporate employee witnesses, including 30(b)(6) corporate representatives, utilizing one of the video platforms. Defendant Sodexo objected, seeking to delay the depositions on the ground that, among other things, COVID-19 restrictions prevented proper witness preparation. The Court rejected this effort, saying:

Sodexo argues that a protective order should issue because remote depositions are “unworkable” and “cumbersome.” The Court rejects this argument. Attorneys and litigants all over the country are adapting to a new way of practicing law, including conducting depositions and deposition preparation remotely. There are numerous resources and training opportunities available throughout the legal community to assist Sodexo’s counsel in the operation and utilization of the new technology. (footnotes and internal citation omitted)

In another early case, a rather different issue was raised. The corporate Plaintiff in SAPS LLC v. EZCare Clinic, Inc., 2020 WL 1923146 (E.D. La. April 21, 2020), sought to prevent the deposition of its 30(b)(6) witness until such time as a court reporter was able to administer an oath to the deponent in person. SAPS contended that in-person administration of the oath was required, citing such cases as Aquino v. Auto. Serv. Indus. Ass’n, 93 F. Supp. 2d 922, 923–24 (N.D. Ill. 2000). The Court pointed out that the situation had dramatically changed from that addressed by courts two decades ago and more. It was held that a videoconference deposition, where the witness and reporter could see and hear each other, provided an adequate vehicle for valid oath administration.

In Rouviere v. DePuy Orthopedics, Inc., 471 F. Supp. 3d 571  (S.D.N.Y. 2020), Plaintiffs demanded that the depositions of Defendant’s 30(b)(6) witnesses be conducted in person rather than remotely, or to extend all deadlines until in-person depositions could be taken. The reason given was that at least some documentary exhibits to be discussed at the deposition were exceedingly bulky, rendering remote interrogation concerning such items too difficult.[4]

The Court disagreed with Plaintiffs’ contentions. After noting that the risks to the witness and counsel were “obvious,” the Court stated:

Conducting depositions remotely . . . has become the “new normal” since the advent of the public health emergency.

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[H]olding a deposition in a room with witness, counsel and a stenographer present would place everyone in the room at risk. . . . The Court next considers the potential prejudice to Plaintiffs if the Howmedica Rule 30(b)(6) deposition is held remotely by videoconference. The only prejudice Plaintiffs articulate in their submissions is that the deposition will be “document intensive” and “document laden.” However, this is not an obstacle to a successful remote videoconference deposition. “‘[C]ourts have found that exhibits can be managed in remote depositions by sending Bates-stamped exhibits to deponents prior to the depositions or using modern videoconference technology to share documents and images quickly and conveniently.’” 471 F. Supp. 3d at 575 (citation omitted).

The Court went on to point out that the inconvenience to Plaintiffs was minimal, especially when weighed against the potential dangers to Defendant’s witness and lawyers, in light of the increasing number of coronavirus cases across the country.

In United States for Use & Benefit of Chen v. K.O.O. Construction, Inc., 445 F. Supp. 3d 1055, 1056-7 (S.D. Cal. 2020), the parties jointly sought a continuance of a number of deadlines because of the pandemic. The Court rejected the joint motion, saying:

The primary reason the parties seek the continuance is because they hope that the physical distancing and stay-at-home orders required by the current pandemic will be lessened to allow for in-person depositions in the near future. This, however, is pure speculation.

The Court is not convinced that detailed and highly voluminous exhibits are a bar to remote videoconference depositions. Other “courts have found that exhibits can be managed in remote depositions by sending Bates-stamped exhibits to deponents prior to the depositions or using modern videoconference technology to share documents and images quickly and conveniently.” [Citing a number of pre-pandemic cases]

In Grupo Petrotemex, S.A. de C.V. v. Polymetrix AG, 2020 WL 4218804 (D. Minn. July 23, 2020), Plaintiff pressed vigorously for in-person depositions of Defendant’s corporate representatives, suggesting that there was an urgent need for face-to-face interrogation, for some of the same reasons advanced in Grano, 335 F.R.D. 411, and Rouviere, 471 F. Supp. 3d 571. Plaintiff suggested that St. Maarten in the Caribbean could be a suitable location for the proceeding, as the incidence of the disease was relatively low. In ruling that the 30(b)(6) depositions should proceed remotely, the Court observed:

Magistrate Judge Bowbeer found, pursuant to Rule 30(b)(4), that the depositions should be taken by remote means. While the magistrate judge acknowledged that in-person depositions are desirable under ordinary circumstances, “these are not ordinary circumstances,” given the serious risks of COVID-19 posed by travel and in-person gatherings at this time. And although Plaintiffs’ proposed location of St. Maarten might be permissible from a legal or regulatory standpoint, Magistrate Judge Bowbeer observed that holding depositions there could still require the parties and witnesses to self-quarantine upon returning home, and both travel and in-person proceedings could expose the participants to a substantially greater risk of contracting COVID-19 than if the depositions proceed remotely. (internal citations omitted)

As to the potential prejudice that Plaintiffs identify if the depositions proceed remotely, the Court appreciates that this case involves a great deal of complex document discovery. However, “‘courts have found that exhibits can be managed in remote depositions by sending Bates-stamped exhibits to deponents prior to the depositions or using modern videoconference technology to share documents and images quickly and conveniently.’” Rouviere, 471 F. Supp. 3d at 575 (quoting United States for Use & Benefit of Chen v. K.O.O. Constr., Inc., 445 F. Supp. 3d 1055, 1057 (S.D. Cal. 2020)). In addition, there are many resources available from vendors and throughout the legal community to assist counsel in preparing for remote depositions. Id. (citing Grano v. Sodexo Mgmt., Inc., 335 F.R.D. 411, 415 (S.D. Cal. 2020) (“There are numerous resources and training opportunities available throughout the legal community to assist Sodexo’s counsel in the operation and utilization of the new technology.”)).

As to the lack of the ability to replicate witness examination in a courtroom when taking a remote deposition, “[i]f the lack of being physically present with the witness were enough prejudice to defeat the holding of a remote deposition, then Rule 30(b)(4) would be rendered meaningless.” Id. (citing Robert Smalls Inc. v. Hamilton, No. 09-CV-07171, 2010 WL 2541177, at *4 (S.D.N.Y. June 10, 2010)).

“On balance, the Court finds that the potential risk of danger and hardship to witnesses, counsel, court reporters and videographers will be considerably lessened through remote video depositions, and outweighs the potential prejudice to Plaintiffs.”  Grupo Petrotemex, 2020 WL 4218804, at *3.

A troubling case, at least from the defense perspective, is Sonneveldt v. Mazda Motors of America, Inc., et al. 2020 WL 5372103 (C.D. Cal., Aug. 5, 2020). There, Plaintiff served a 30(b)(6) notice on Defendant Mazda Motor Company (MMC – the Japanese parent corporation), to which MMC objected. The U.S. Magistrate held that the 30(b)(6) corporate representative deposition should proceed, ordering MMC to select one of three options: (1) a remote deposition of a witness in Japan; (2) a remote deposition of a witness located outside of Japan: or (3) a remote or in-person deposition of a witness located in California.

MMC responded to the order, stating that (1) remote depositions were illegal in Japan; (2) travel between Japan and the U.S., and indeed much of the rest of the world, was all but impossible; and (3) MMC had no witness located in the U.S. who was capable of testifying to the topics demanded by Plaintiffs.

The Court rejected MMC’s response, stating that, among other things that it did simply did not believe MMC’s assertion that no one could be found who could testify on the corporation’s behalf on the topics listed in the 30(b)(6) deposition Notice. The Court stated that MMC had, among other things, failed to “conclusively demonstrate that no suitable MC employees would be traveling outside Japan in the near future. MC has thus offered no persuasive argument that the second option presented by the Magistrate Judge is clearly erroneous or contrary to law.” Id. at *3.  The Court went on to suggest that a Mr. Moro, employed by another Mazda entity, might well be able to testify.

To say that the Court was unsympathetic to MMC’s plight would be an understatement. As it happens, the parties eventually reached agreement on the conduct of all depositions, which the Court accepted, although declining to adopt the agreement as a Court Order. See [Proposed] Order re Stipulated Protocol Governing Remote Depositions, Nov. 19, 2020, No. 8:19-cv-01298-JLS-KES.

A similar result was reached in Panasonic Corp. v. Getac Technologies, Inc.,  2020 WL 4728081 (C.D. Cal. Aug. 6, 2020), although there, Panasonic (which was the Japanese entity sought to be deposed) was the Plaintiff. The Court pointed out that normally, a plaintiff is required to appear for deposition in the forum jurisdiction, but agreed that Hawaii could serve as a suitable venue for the deposition, either in person or remotely. The opinion did not discuss travel restrictions to or from Japan, or quarantine requirements in Hawaii or Japan.

As discussed, courts have been requiring parties to utilize available technology to proceed with depositions of corporate representatives, exhibiting impatience with reluctance to do so. Disputes of this nature appear to have diminished in frequency as the year 2020 progressed, and parties and counsel grew accustomed to remote discovery.

Major issues remain with respect to corporate representative depositions involving non-U.S. parties, whether plaintiff or defendant. When courts decline to recognize such obstacles, it can put the foreign corporation at a distinct disadvantage. Restraints on many activities of daily life, to say nothing of legal proceedings, continue to prevail in numerous countries. See, e.g., Geoff Whimore, Latest Coronavirus Travel Restrictions January 2021, Forbes (Jan. 29, 2021, 12:24 PM EST), https://www.forbes.com/sites/geoffwhitmore/2021/01/29/latest-coronavirus-travel-restrictions-january-2021/?sh=677305fb4f8b. 

Many countries decline to recognize the validity of discovery procedures permitted by the federal procedural rules (or state rules, for that matter). Travel to or from the United States for discovery proceedings continues to be significantly restricted.

Although vaccines are becoming available which should dramatically reduce the frequency and severity of coronavirus, it will undoubtedly take significant time for a sufficient percentage of the world’s population to receive the vaccine. Until that occurs, and travel restrictions can be relaxed, it should be anticipated that difficulties will continue with respect to the conduct of corporate representative depositions of non-U.S. companies.

Many domestic corporations have already instituted protocols for depositions of their employees, including corporate representative depositions under Federal Rule 30(b)(6). These can involve some imaginative approaches on the part of both client and counsel.[5]

In some cases, discussions among counsel for the parties prior to the deposition may be able to resolve issues before they arise.

Depositions under Rule 30(b)(6) of representatives of foreign corporations can be problematic, as mentioned above. Discussions among counsel may be able to alleviate some concerns. In any event, it is recommended that plans be commenced for these depositions at the earliest possible time. While all can hope that current restrictions will diminish in the fairly near future, if there is a lesson to be learned from the pandemic, it is that nothing can be guaranteed. Prudent counsel will consider these factors from the outset of the case.

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Originally published by the Product Liability Advisory Council

[1] Some clients may insist that counsel undertake face to face conferences with the witness or witnesses, in the same manner as has customarily been done. This may well involve the necessity of air travel in the face of the pandemic precautions still in existence. In the case of corporate witnesses who are not residents of the United States, in person conferences may not be possible, even with the utmost will to accomplish the task. In the case of witnesses residing in Asia, time zone difficulties will be unavoidable.

[2] All federal cases referenced in this paper were decided by district courts. Cases found in which COVID-19 issues were addressed by circuit courts of appeals involved prisoner matters, or those pertaining to places of worship, rather than the discovery proceedings discussed here.

[3] However, in several instances the Court relaxed the time duration limitation set forth in Rule 30(b)(4), in recognition of the realities of remote proceedings.

[4] There was also some indication that Plaintiffs’ counsel was himself a Plaintiff in the case, and that Plaintiffs were prepared to travel from their home in Florida to New Jersey in a motorhome to personally attend these corporate representative depositions. 471 F. Supp. 3d at 573-4.

[5] One common tactic utilized by plaintiffs’ counsel is to transmit the documents to be discussed at the deposition, virtually contemporaneously with the start of the deposition. This can be addressed by having personnel standing by to quickly review and analyze these exhibits, and then communicating any significant considerations to counsel defending the deposition.