Corporate Representative Depositions: Strategies for Obtaining or Preventing Discovery of Document Compilations

Lawyers gather, compile, and show documents to their clients to prepare them to testify in a deposition or at trial, often seeking to identify specific documents believed important to opposing counsel. In the 30(b)(6) context, a corporate designee often has no personal knowledge of facts about which he must testify. Counsel may actually have an affirmative duty to educate the witness about facts only the attorney knows. Counsel also have an affirmative duty to confer prior to the deposition.

Impeachment or testing of the deponent's knowledge (or alleged lack of knowledge) and credibility are near impossible without access to the source of the knowledge, i.e., the documents reviewed. Thus, "What documents did you review to prepare for your deposition?" is among the most common deposition questions.

The answer may be permissible or privileged and turns on a thorough understanding of the attorney work-product doctrine and the evidentiary rules about documents used to refresh a witness' memory under Federal Rule of Evidence 612. Asking the right questions can increase the likelihood of disclosure.

Listen as this experienced panel of preeminent litigators discusses what attorneys must understand about the interplay between deposition preparation and FRE 612.