Just like Soylent Green, companies and government agencies are people. They have rights, they have beliefs, they have purposes, and ambitions, dreams. And just like Charlton Heston in another sci-fi classic, they can speak!
In litigation, whether in state or federal court, the company speaks through what is known as a corporate representative deposition. Under the Texas Rules of Civil Procedure, a corporate representative deposition is taken under Rule 199.2(b)(1). If the case is in federal court, the applicable federal rule of civil procedure is Rule 30(b)(6). Under both rules, an entity is required to designate and prepare an individual or several individuals to speak on behalf of the company regarding topics enumerated specifically in the notice of deposition served by the other party.
In theory, it goes like this: the party seeking the deposition of the entity—in my cases, that is the plaintiff—sends a draft notice to opposing counsel listing the topics on which we want the corporation to speak. The entity’s attorneys—usually the defendant in my cases—then consult with their client and find one or more people can speak with knowledge on the topics provided. We then work out a mutually agreeable date. The deposition is taken and at the end we all join hands and sing. In practice, it can be, but is not always, a bit more contentious.
Here is the story of how a recent defendant tried to avoid, then delay having a corporate representative deposition and lost.
On December 13, 2022, I sent Defendant a draft copy of the 30(b)(6) deposition notice and requested dates for that deposition to take place. The next day, Defendant’s counsel responded that she had forwarded the draft notice to her client and that they are working on finding representatives for the topics. On December 20, Defendant responded, offering to stipulate to certain things, or, alternatively, should we not make such stipulations, to designate a corporate rep for most of the topics listed in the notice, but fully objected to some other topics.
On December 22, 2022, we responded, rejecting the proposed modifications, stipulations, and combining of certain depositions. We then requested a deposition date by the end of the day. Later that night, on December 22, 2022, we served our 30(b)(6) notice.
On January 9, 2023, at 5:31 pm, with just one business day left before we had to take another deposition in the case, Defendant filed a motion to stop the entire deposition, objecting to all of our topics.
We responded on Friday the 13th and requested an expedited ruling.
On Tuesday, January 17, 2023, at about 9:30 in the morning, the Court denied Defendant’s motion and ordered them to appear at the deposition the next day. Defendant tried once again to delay the deposition by filing objections to the order. But objections don’t halt a discovery order. Defendant did not show up at the deposition, in defiance of the court order. A few hours later, the judge denied Defendant’s objections to the previous order. Now Defendant is on the hook for the costs associated with them not showing up at the deposition.
The point of this story is twofold. First, we fight for our clients and hold defendants accountable for not fulfilling their discovery obligations. Second, defendants in employment cases can and do abuse discovery. It’s a big problem and a lot of attorneys are not able to fight it because of the time and resources involved.
If you have been unlawfully terminated and are considering your options, you should contact an attorney. The board-certified attorneys at Wiley Walsh, P.C. may be able to help by discussing your case and providing a candid assessment. We can be reached at wileywalsh.com or by calling 512-271-5527.
And now to end with what I’m pretty sure is from another Charlton Heston sci-fi classic: https://youtu.be/qolk_rDA9xU