Tom O’Connor is a nationally known consultant, speaker and writer in the field of computerized litigation support systems. Tom...
Sharon D. Nelson, Esq. is president of the digital forensics, managed information technology and cybersecurity firm Sensei Enterprises. Ms....
John W. Simek is vice president of the digital forensics, managed information technology and cybersecurity firm Sensei Enterprises. He...
Ambiguities under current rules often lead to a variety of problems with 30(b)(6) witness depositions. Sharon and John talk with nationally known litigation consultant Tom O’Connor about the scope of these issues and his tips for avoiding common pitfalls on both sides of the deposition process. Tom offers colorful examples from his many years as a consultant, addressing matters surrounding witness qualification, hostile witnesses, preservation, and more!
Check out Tom’s blog series on this topic: The Dos and Don’ts of a 30(b)(6) Witness Deposition
Tom O’Connor is a nationally known consultant, speaker and writer in the field of computerized litigation support systems.
Special thanks to our sponsor, Logikcull.
Dos and Don’ts of a 30(b)(6) Witness Deposition
Intro: Welcome to Digital Detectives, reports from the battlefront. We will discuss computer forensics, electronic discovery and information security issues and what’s really happening in the trenches; not theory, but practical information that you can use in your law practice, right here on the Legal Talk Network.
Sharon D. Nelson: Welcome to the 108th Edition of Digital Detectives. We are glad to have you with us. I am Sharon Nelson, President of Sensei Enterprises, a digital forensics, cybersecurity, and information technology firm in Fairfax, Virginia.
John W. Simek: And I am John Simek, Vice President of Sensei Enterprises. Today on Digital Detectives our topic is, ‘Dos and Don’ts of a 30(b)(6) Witness Deposition’.
Sharon D. Nelson: Before we get started I would like to thank our sponsor. Thanks to our sponsor Logikcull, instant discovery software for modern legal teams. Logikcull offers perfectly predictable pricing at just $250 per matter per month. Create your free account at anytime at logikcull.com/ltn. That’s logikcull.com/ltn.
John W. Simek: Today our guest is Tom O’Connor, a nationally known consultant, speaker and writer in the field of computerized litigation support systems. Tom’s consulting experience is with both small firms and complex litigation matters, where he has worked on several major cases, including the BP oil spill litigation in New Orleans as well as national opioid litigation matters.
It’s always great to have you with us Tom.
Tom O’Connor: Well, thanks John, great to be here. Always a pleasure to speak with you guys. I don’t get to see you as often as I used to, now that I am semi-retired as I like to say, which means I am retired and looking for work.
Sharon D. Nelson: Well, we are having a tough time trying to retire, so both of us have problems on opposing ends.
Tom O’Connor: I got you. I totally understand.
Sharon D. Nelson: But it’s great to be talking with you today. And I will be the first to say, I didn’t know a heck of a lot about 30(b)(6) witness depositions; John has taken part in a couple. But I was reading through all the blog posts that you did, and for those who are listening, there is six of these posts on the do’s and don’ts of a 36(b)(6) witness deposition that you can find at cloudnine.com/ediscoverydaily, and they are great. Print them all out, put them altogether and read them in one sitting and I think you will come away with a much better picture of what the deposition looks like.
So Tom, tell me, is this a major issue here, one overwriting issue that presents problems in these depositions?
Tom O’Connor: Yeah, I think the general problem is really the way the rule is written, which is that the party propounding the deposition gets to make a request and then the responding party can designate someone to testify on behalf of the business entity. The requesting party can’t specify a particular individual; in fact, most people take the position they can’t even specify the position of the testifying party in the organization, it’s commonly held by responding parties. That it’s up to them to produce for the deposition the most knowledgeable person in the organization according to their interpretation. That is anyone who in their feeling is able to represent the organization’s knowledge.
So that means specifically it’s not somebody with personal knowledge, and so you get an awful lot of wiggle room there, depending upon how the request is drawn up and where in the proceedings, how soon you are making that note.
Part of this, just real quick, part of this is the real shift in the way we handle litigation since we have thrown ESI into the mix. It used to be that you would go into a deposition not knowing a whole lot and query somebody, even a 30(b)(6), and then start throwing out requests for production, or even in the original deposition just ask them to bring documents with them that you start to review.
But now with the rules under ESI, we get to meet and confer early. We get document exchanges going on very early. It’s very common that a lot of documents have been exchanged before the 30(b)(6) takes place. So things have kind of been stood on their head. And so the fact that there is some ambiguity about who gets to testify can really lead to a lot of problems, and I think we will talk about that a little bit more in detail in a second.
John W. Simek: Well Tom, who do you typically work with, is it the client that’s taking the deposition or those that are preparing for a deposition, and what are those differences?
Tom O’Connor: Well, a little bit of both. I think I would say probably a little bit more on the side of propounding the party taking the deposition, but that tends to be because in many cases, especially large document cases, those are the plaintiffs and the defense, including if it’s a large corporation, will already have their own expert, if you will. They may have internal expertise or they may already be working with one of the large national eDiscovery companies who have a plethora of experts on call day and night that they can bring to bear on a case. And so I would say there is a slight preponderance on my part to be dealing with a party who is requesting the deposition.
But usually, the bigger question is I am called in most normally when there is a problem with a document production. If the parties are getting along and it’s people who are experienced in handling ESI and doing these sorts of matters, the 30(b)(6) may not be problematic.
If the parties aren’t getting along and there is a question of how documents are going to be exchanged, often because of an error that may have occurred or sort of a misunderstanding that may have occurred at the meet and confer about how things were going to be done, then all of a sudden I will get called in. And so it really depends more, not so much on the parties, as it does on how things are going in the case.
And I am sure you guys have seen this, there are plenty of folks in large ESI cases where they get along all right, things are handled professionally and there is an equal number of people where it’s not so professional and things get a little testy.
Sharon D. Nelson: Yes, yes, we get a good share of the testy ones.
Tom O’Connor: Right, exactly.
Sharon D. Nelson: It’s always funny how the — the experts are usually pretty calm, but the lawyers are frequently not.
Tom O’Connor: That’s correct. In fact, I had one case, it was situated here in New Orleans several years ago, but it was a very large case that they had tried — the parties had tried to go for a class action, the judge rejected the class action, and then of course there was — the judge I think regretted her decision a year later when all the cases are kind of being given to her court anyways. And so she is dealing with like 50 different actions.
In any event, she had a large status conference and she had to use the courtroom, there were so many parties, she literally had to use the courtroom for the status conference and the lawyers were just going at it. They were just screaming and yelling and weeping and gnashing of teeth and it was just awful.
And at one point the judge had set the two tables for the parties, she pulled them together and had the main players there, myself as the expert for the defense, it was Chuck Kellner, who was with D4 at the time, and luckily Chuck and I knew each other and worked on matters for a number of years, and at one point the judge just literally slapped her hand on the table and said enough. Everybody just be quiet and she looked down at the end of the table at Chuck and I and said, can somebody in this room, she paused dramatically, please explain to me in English what the heck everybody is talking about here.
So you are exactly right, the experts often get along far better than the parties do.
Sharon D. Nelson: Yes, oh, indeed. We have seen much the same. I think in a lot of these depositions, there is a lot of tactical maneuvering going on. So if you are on the questioning side, how do you determine if the witness is truly qualified?
Tom O’Connor: Wow, that’s the real problem, because you are getting into it — obviously, under the rules, as we have them now, you can’t do that until you start questioning, and until what I advise there is a serious amount of questions that start in with, what the person does, what’s their structure in the organization, how do they prepare for this, you have to have some really, really detailed questioning at the onset of the deposition to see if they really are a person who understands this, and first and foremost in my mind is, are you the person who really handled this information in the day-to-day business or are you more of a supervisor.
And you can usually tell within about the first hour if the person really has a great understanding of the material that they are discussing or being asked about, but it’s difficult.
It’s like slogging through the muddy water to try to get down to the creek bed to go fishing. It can be difficult, it can be very difficult.
John W. Simek: Along those same lines, Tom, how do you determine if the person being deposed is really prepared at all?
Tom O’Connor: Well, it’s a great question and it’s really part of that continuation of that same discussion or that same answer that I just gave, you want to know really what do they do? I would ask my people to start with. What your role in the organization, who do you report to, who do you supervise with regards to the subject matter of the deposition itself, how are you situated with the matters that are relevant to this deposition? Did you just get reports about what’s going on, did you have to prepare for this or were you in the trenches?
And if in fact they were not then you can start to zero in on so how did you prepare for the deposition, how did you come to understand about this particular type of information? Did you get reports, did you look at the weekly and daily, weekly, monthly reports that are generated regarding this information, exactly what steps did you take in order to get yourself prepared for answering these questions?
And so really what you are trying to do is figure out what we discussed at the onset is this the person who really works with the material that we are talking about, whether it’s actually ESI or an IT person, do they work with the hardware, what’s their role, and do you really have a hands-on understanding of what all this is, or were you simply designated as the corporate person? Even though they’re not required to have personal knowledge which you are really trying to do is get at, do they have any degree of personal knowledge or have they just been stood up as the corporate representative to answer this?
Sharon D. Nelson: Well, so you said in the first hour you usually get some kind of sense of where you are, so suppose you say, okay, this person is a DID’s brain, doesn’t know diddly-squat, no way, no way competent to be here. So what — now you have made your judgment, this is not a qualified witness, you are concluding that, so what do you do at that point?
Tom O’Connor: Is that an objection that you’ve raised before, Sharon, and this is a DID’s brain.
Sharon D. Nelson: The DID’s brain objection?
John W. Simek: Was that all on the record?
Tom O’Connor: Exactly, exactly. That’s actually a good point.
Sharon D. Nelson: I only do those objections.
Tom O’Connor: I am sorry, go ahead, go ahead.
Sharon D. Nelson: I was just going to say, I only make those objections on a podcast.
Tom O’Connor: You are right and I was going to say, much of this part of the depth often occurs off the record. Usually of course, I’m not — I am there assisting my client, which means I’m not actually asking the questions. So we prepare and then oftentimes we will go on to the hallway during a break and go over some material or I kick them strenuously under the table when somebody answers a particular question to indicate that they should focus on that.
A lot of this goes on off the record and as you know depositions can be a little bit more informal, and again, if the parties are getting along at all, you can go off the record and say, well, I want to do this or I would like to go there, and if the other side is not necessarily overly antagonistic towards you, you can try to focus that, but that’s often difficult to do.
But really the big question is, what do you want to do? If you’ve decided that they are not really up to snuff, you’ve got a couple of options, you could adjourn the deposition and that you do one of two things. You could say you are going to bring a motion to compel the appearance of somebody else. You are going to — you just tell the other party off the record, look, this isn’t working out. I don’t think this person knows, do you have somebody else you can stand up and see what they’re going to do?
If they are completely uncooperative, and by that I mean the party and not the witness, you could bring a motion to preclude them from introducing any testimony on this particular area. You can end up in front of the judge and say, look, we have a problem here and they’re just not prepared to bring anybody in who is really testifying, that’s going to lead to of course in an extended motion practice in front of the court when judges are not particularly interested in having appeared in front of them, but that is your other option.
So it’s tough, it’s tough if you have these sorts of situations, and I think we will talk about maybe a couple of resolutions to this before we wrap up here today.
John W. Simek: Well, before we move on to our next segment, let’s take a quick commercial break.
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Sharon D. Nelson: Welcome back to Digital Detectives on the Legal Talk Network. Today our topic is “Dos and Don’ts of a 30(b)(6) Witness Deposition”, and our guest is Tom O’Connor, a nationally known consultant, speaker and writer in the field of computerized litigation support systems, and of course our friend.
So, Tom, hostile witnesses, we’ve all seen them in the movies, but you and I have seen them in the trenches, and John as well.
Tom O’Connor: Yeah.
John W. Simek: Oh yeah.
Sharon D. Nelson: I mean, there’s nothing uglier than a witness who just is downright hostile in the face of your questions.
Tom O’Connor: Yeah.
Sharon D. Nelson: So what you do then?
Tom O’Connor: Well, there is a couple of things, of course, we can attempt to ridicule them on the record and make them appear like that they are being hostile. I don’t think that’s particularly helpful and especially in terms of moving the deposition forward.
I think the first thing is to try to determine why they are being hostile. There is a couple of different reasons. I mean, one may be, as we talked about, they really don’t know a whole lot about the subject matter that they have been selected by the company to be the representative, maybe it’s not something they do a lot of hands-on work with, and they really rather not be there and so therefore, they are defensive and hostile because they really rather be any place else in the world except sitting there answering questions on the record.
So, if you can try to put them at ease, if you can determine that it’s that sort of a witness, you know a couple questions about, look, we are not trying to put you on the spot here, we are just trying to find some information. If you don’t know, it’s okay to say that, it’s all right to say, yeah, I am not real clear about that. It’s all right to say, I will get back to you on that. So if it’s uneasy witness, maybe try to put them at ease and that goes a long way.
Sometimes it’s a person who — and this is the one that I see in awful lot, they are hostile because they think they are the smartest bear in the room and they feel that — some of the questions being asked are beneath them and they almost feel like they are having to explain something to what was at line in the movie Philadelphia by Denzel Washington explain this to me like I am a six-year-old.
Sharon D. Nelson: Good line.
Tom O’Connor: Yeah, they feel put upon that they have had to take time to explain something to people who they don’t feel are up to their — not necessarily intellectual capabilities but training about technical issues. And unfortunately that can be exacerbated by sometimes, attorneys who don’t have a great deal of technical background asking the questions. There’s a lot of, well, I don’t understand that, can you explain that answer to me and then you get this hemming and hawing or loud exasperated sighs, like, oh, yeah, so I have to explain to you that I will be off of that work. That sort of thing. So that — that can often be part of it.
There is not much you can do about that. I mean, all you can say is that, sorry, Mr. and Ms. Witness, that’s one of the reasons we are taking this deposition it’s because I don’t have that degree of technical knowledge that you are doing, we do need you to explain this to us, like we’re six-year-olds, because we are going to perhaps be using these explanations in front of a judge and/or a jury who also won’t have a great deal of technical knowledge. So we do have to sort of reduce this to the least common denominator, if you will. Treat me like I’m the slowest kid in the class, because, well, frankly I am when it comes to this sort of information, and I am sorry that, that’s the way it is, that is the way it is.
And secondarily we need to make sure that we do understand, we don’t want to misunderstand anything that’s going on here in the technical realm. So everybody is on the same page. So, you just have to sometimes unfortunately grin and bear it with the often highly, technically skilled individual who was explaining something to a not so highly, technically skilled individual.
And the third example of course is if somebody is being hostile because there is in fact a strategy of not providing information.
Far be it for me to say that I’ve been in situations where witnesses will and parties will be attempting to not be forthcoming in providing information, answering questions about information, but you come across it, and I think and if it’s that sort of a witness, if the hostility is because of that, you can be a little bit more aggressive and take the position that, okay, you are required to be here, you are required to answer these questions, I don’t feel you’re answering the questions satisfactorily to me and I think you probably heard attorneys do this all the time. Well, you can either do this or we can just adjourn now and go down and talk to the judge.
Sharon D. Nelson: Yes, we hear that a lot.
Tom O’Connor: Right. Sometimes you have to throw that thread on the table to try to move things forward. So, I think the big thing is to try to at least understand at the beginning what the reason for the hostility is, and if it’s something that can be dealt with or turned to your favor or if it’s something is — if it’s something you’re just going to have to deal with, and if not hostile certainly in aggressive manner in response.
John W. Simek: And Tom, on a different subject when we are talking about these depositions, what about the subject of preservation, you bring that up at all?
Tom O’Connor: Oh, I recommended that that be brought up immediately, because if it hasn’t been spelled out in the notice of the deposition, it’s going to be relevant to the proceedings. What is the preservation policy, is there a written preservation policy, do you have a copy of that, how was it implemented in this particular case as it changed it all over the years, etc. etc. etc.?
But, absolutely, I think preservation has to be on the table especially in the Federal arena with the rule changes, the most recent rule changes that it’s nearly impossible, if not downright impossible to get sanctions for spoliation unless you prove that there has been a deliberate attempt to spoliate. If there is a preservation policy, it hasn’t been followed deliberately with an intent to deprive you and the information isn’t available any place out. So I think preservation is central to deciding what’s going to happen after the deposition is over, absolutely.
Sharon D. Nelson: And what other kind of questions would you ask, what else is important?
Tom O’Connor: Well, related to preservation, I’m always curious and it’s certainly roundabout way of getting at something you asked earlier about the — how do you know when the person is prepared. I always like to somehow get in there, when did you first know about the dispute that is at the heart of this matter, especially if it’s to say an employment record, an employment matter, and the individuals in the IT department, as both of you know the standard in the Federal Courts and it’s followed in many of the state courts is that, the duty to preserve comes up when you knew or reasonably should have known that there was a likelihood of litigation. And I always use the example of if I am working at a ship, at Bollinger Shipyard here in New Orleans and I am on the line and one of the guys on the line says something about my ponytail, and I make a complaint to my shop steward or my foreman about that, is the company reasonably aware of the likelihood of litigation? And then I will escalate it, well, what if I go to the HR Department, what if I go to the local office of the EEOC? At what point does the company know that there’s something going on that could lead to litigation, therefore the preservation duty has been triggered?
So I always try to get that out with the witness, right? When did you know that there was something happening here, and then of course, that dovetails with the question about preservation, do those two sync up? Did in fact the person say, oh, yeah, everybody in the shop was talking about the fact that, you know, lawyer Zubulake had been fired and was complaining to the company for months before she had been fired about discrimination, that was just well-known to everybody in the organization. Wow, that has obviously a bearing on what happened with the information and the preservation duties and procedures that were followed, so I do that.
But all of this kind of floats back to how do we set this up, given the fuzziness of the current standard, how can we do some of this ahead of time and I think that goes back to drawing up a very, very specific request for the deposition, right? You can’t specify a person but you can certainly be very specific about what it is you’re going to ask about so that it becomes harder to stand up a witness who is just a generalist, so to speak, who is any corporate representative who has been given some general instructions and some briefings on what to do.
If you make the request for the deposition, very specific and discuss the scope, then it’s going to make it more likely that they will produce somebody who can answer those questions or they are going to object to the notice and you are going to get in front of the judge about the topic upfront, which is great. To my mind that’s a win, because the judge is not going to want to waste time with a deposition that is going to end up in front of him or her with an argument about it and we will probably give you some guidance about what’s going to be allowed. So I try to make that as specific as I can at the front end. Then you really can hopefully get a much more capable witness.
Sharon D. Nelson: You know, Tom, in that very interesting and long answer I was struck by the fact that you mentioned the ponytail. So for our listeners, and this is completely related to nothing, this is a podcast with two men and one woman, and the only one who doesn’t have a ponytail is the woman. So there is your visual for —
Tom O’Connor: When I was thinking about it the other day, when you asked me to be here, when you most graciously asked me to participate in this, so I was thinking, are John and I the only two guys in our profession left with ponytails? There used to be several others, 00:26:16 in the day at ProLaw, and I remember he cut his, and Craig Roy who was with the — IT Director down in Florida, he is not into business anymore. He went to work I believe for a brokerage house or a real estate company or something, but he cut his ponytail before he had left as well.
Lincoln Mead who really should have had a ponytail, if he just used his rubber band, the hair was long enough, but I don’t think —
John W. Simek: He doesn’t look so much like a viking warrior if you put in a ponytail.
Tom O’Connor: Yeah, there you go.
Sharon D. Nelson: He likes the warrior look, for sure.
Tom O’Connor: Yeah.
Sharon D. Nelson: Obviously, Tom, I am attracted to men with ponytail, so please do keep yours.
Tom O’Connor: All right.
Sharon D. Nelson: I like the look.
Tom O’Connor: Oh yeah, no plans to have it go.
John W. Simek: Me either, Tom.
Tom O’Connor: Yes, good.
Sharon D. Nelson: Given our time here, John, I think we can maybe just ask one more question of Tom; do you want to ask the final question for us, John?
John W. Simek: I have been involved in some of these 30(b)(6) depositions as well, because at least our clients have asked me to act as like the BS factor, is that being kind of your experience as well? Do you tell your clients that you consult to that, boy, you really should be there?
Tom O’Connor: Oh absolutely, absolutely, or as I said in my notes in response to these questions when we first discussed them, hell yeah. Partly because — and John, I am sure you have seen this. We have a certain amount of technical background and understanding and so we can figure out that BS factor. We can tell if somebody is giving an answer that doesn’t make sense and sometimes it’s just because they don’t know, but still, you want to be able to, as I said, kick your guy under the table and say, no, no, no, no, that can’t, that doesn’t pass the smell test.
It kind of relates to the great example, which would have been, yes, at one point one of my favorite stories was I was at a death like that where I was there and there was multiple people with the same case that I mentioned earlier with the judge and the multiple parties, and the IT director for the company was being less than cooperative. We found out later it was because they had in fact literally bought several programs, like their HR program, and it was all installed and he didn’t really — he didn’t know anything about it, he didn’t know how to run it.
And the question that came up was, well, we’d like to run some queries in this SQL database that you have, to get at some things and his response was, well, we can’t run queries on that database.
Now the individual sitting next to me was the IT expert from the EEOC who nearly died, when he was drinking — he was happened to be drinking a little bit of water at the time and start to strangle himself on it, and I wrote on a notepad and passed it to the attorney asking what SQL stands for, and he didn’t know.
And so then it became clear that as we said earlier he wasn’t being hostile or evasive because he was trying to be deliberately obtuse. He didn’t know what it was. They had bought an SQL, he thought it was a brand name, right? And so yes, if we weren’t there in the room to see those sort of things that might go by the boards; and so, I think our presence is absolutely essential when there is an IT person being questioned, yes.
Sharon D. Nelson: Yeah, I couldn’t agree with you more, Tom, it is invaluable to do it. People sometimes resist spending the money, but I think that the money is well used to that.
We both want to thank you so much for being our guest today. This is always like being in the clubhouse, with people we get in the clubhouse for a very long time, we won’t mention how many years that is.
Tom O’Connor: Right, let’s not talk about that, yes.
Sharon D. Nelson: No, we will dispense with that, but I love the fact that you always have an unpolished raw view of what the world is like and you are never afraid to express it in exactly those terms, and that’s useful especially in a podcast scenario. You might not do it in a deposition, but it does liven up a podcast, for sure.
So thank you for sharing your expertise and thanks for your many years of friendship.
Tom O’Connor: Well, thanks for having me here. I truly appreciate it. Great talking with you guys again and hope to see you in person soon.
John W. Simek: Well, that does it for this edition of Digital Detectives. And remember, you can subscribe to all the editions of this podcast at legaltalknetwork.com or in Apple Podcasts. If you enjoyed our podcast, please rate us on Apple Podcasts.
Sharon D. Nelson: And you can find out more about Sensei’s digital forensics technology, and cybersecurity services at senseient.com.
We will see you next time on Digital Detectives.
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