Corporate Depositions and the Personal Knowledge Trap


May 25th, 2020 By Sarah Scott

When entities are defendants in a lawsuit, the deposition process is not quite as easy as it would be for individual fact witnesses. Depositions of organizations are governed by Texas Rule of Civil Procedure 199.2(b)(1), which states that:

If an organization is named as the witness, the notice must describe with reasonable particularity the matters on which examination is requested. In response, the organization named in the notice must—a reasonable time before the deposition—designate one or more individuals to testify on its behalf and set forth, for each individual designated, the matters on which the individual will testify. Each individual designated must testify as to matters that are known or reasonably available to the organization.

In other words, plaintiffs cannot simply select the identity of the person to testify; instead, they must provide a list of topics, and it’s up to the defendant to pick the person (or people) who will testify as to each one. Problematically, plaintiffs may draft notices that include a demand for the “person with the most knowledge” or who is “most knowledgeable” regarding the listed topics.

This is not what the rules contemplate, and – worse – could lead to unintended consequences at trial. Defendants have a right to select the person who can best represent the company to testify about the specified topics; this is not always the same person who has “the most knowledge.” Selecting who should testify is a matter of strategy, not just a matter of finding the person most familiar with the topic.

Further, proceeding to depositions without objecting to this language could be construed as indicating that no one else in the corporation can testify with as much knowledge as the corporate representative did. Plaintiffs may argue that an entity cannot present testimony at trial unless it is from the corporate representative produced as the person with “the most knowledge.” To avoid this headache, it’s important to object in writing or on the record at the deposition to this language and present your witness subject to those objections.

Ed. Note – for more practical tips like this one, check out Sarah and Catherine’s article in the most recent Insurance Law Journal – A Practical Guide to Defending a First-Party Insurance Case