Inadequate Witness Preparation Results in Sanctions

Oro BRC4, LLC v. Silvertree Apartments

S.D. Ohio 6/10/21 7:00

Why This Case Is Important

Making sure a witness is adequately prepared for a deposition can prevent serious consequences. Ensuring that corporate representatives are effectively prepared to answer questions around their organization’s data infrastructure can help to prevent e-discovery sanctions, like those imposed in this case.

Overview

In this case, defendant’s head of IT was deposed in response to a notice as to certain topics related to the collection and production of ESI. Finding the witness ill-prepared to answer questions, plaintiffs filed a motion for sanctions, including costs, fees, and an additional monetary award as a “deterrent.”

The witness had testified to receiving the deposition notice less than 72 hours before the deposition, had not reviewed any documents other than his own emails, did not talk to any other employees who may have had relevant information about the matter, and was only testifying as to his own personal knowledge. Defense counsel argued that the witness was the expert best equipped to answer plaintiffs’ questions and that his ‘’poor memory” was not sanctionable; however, the court noted that the defendant’s responsibility in preparing the witness extends not only to personal knowledge, but to all matters known by the organization.

Ruling

• Court Grants Plaintiffs’ Motion for a Second Deposition. The defendant was ordered to prepare and produce one or more witnesses for another deposition to cover topics that the witness had not been prepared to cover in the original deposition. The defendant was further ordered to pay attorney fees for the second deposition, as well as court reporter costs, plaintiff’s ESI consultant fees, and fees for the motion for sanctions,.
• Failure to Appear. The judge rejected the defense that the witness was the “most knowledgeable” employee to answer the questions during the deposition. She countered that “’there is no obligation to select a person with personal knowledge of the events in question, so long as the corporation proffers a person who can answer regarding information known or reasonably available to the organization.’’’ The Court concluded that the defendant’s failure to adequately prepare the witness was tantamount to a failure to appear.
• Standard for Preparing a Witness. The court noted that “absolute perfection” is not required of a 30(b) (6) witness, but the party is required “’to make a good faith effort to find out the relevant facts possessed by the corporation — to collect information, review documents, and interview employees with personal knowledge just as a corporate party is expected to do in answering interrogatories.’”

Legal Analysis

By, David Cohen, Esq., Chair - E-Discovery Group, Reed Smith LLP

Depositions of an organization, under F.R.C.P. 30(b)(6), require reasonable steps to prepare the organization’s representative(s) to testify about facts reasonably known to the organization regarding the designated topics. Here one might sympathize with the defendant, served on New Year’s eve with a broad 37-topic notice of deposition scheduled 15 days later. However, if that was not enough time to negotiate narrowed topics, identify a witness and prepare the witness to testify, then counsel needed to negotiate or move for an extension or other relief, rather than producing a witness not reasonably prepared to testify on some of the noticed topics.