33 Trial Lawyer • Summer 2023 order to prepare a case. Plaintiffs have a powerful tool in the deposition of an organization to obtain key information relatively efficiently. Oregon Rule of Civil Procedure 39C(6) provides for depositions of organizations, both by notice to a party defendant and by subpoena to a nonparty organization. While ORCP 39C(6) is similar to FRCP 30(b)(6), the rules are not identical. The Oregon basics are straightforward. By custom, counsel confer about deposition dates and the requesting party typically informally outlines the areas to be covered, followed up by a formal notice or subpoena that numbers each subject matter. The subjects are to be described with reasonable particularity. The organization then generally responds no later than three days before the deposition by designating by name(s) the person(s) who will testify on its behalf and identifying the subject matters for each such person. While not required, sometimes it is a good idea to send a cover letter with the notice that explains the organization’s responsibilities. In Chuck’s case, just two depositions of the organization provided the testimonial foundation for much of his trial against his insurance company. The first established the applicable rules, starting with the most fundamental rule in liability insurance: when resolving claims, a responsible insurance company must always be loyal to its policyholders to protect those policyholders from financial ruin. That same witness also eventually confirmed 19 other relevant insurance rules. The second key deposition of the insurance company applied those insurance rules to the facts of Chuck’s case, showing that the insurance company had broken every one of them in mishandling the claim against him. Instead of deposing a host of witnesses scattered across the nation, just two key depositions were required for the testimony to prove much of Chuck’s case. Instead of individuals who could claim a lack of knowledge, or that it was someone else’s expertise, or any of a number of evasive tactics, the organization itself was required to answer questions about what happened and why. For example, one of the insurance company representatives we deposed identified himself as the regional liability administrator. One portion of his testimony went like this: Q. If [your company]’s employees were to refuse to give consent to an assignment of an excess judgment claim in order to protect [your company]'s interests, would that be against [your company]'s policy? A. It would be, yes. Q. And that's because [your company] believes it must consider the best interests of the policyholder when deciding whether to give consent to assign claims against [your company]? A. Yes. Q. So, if I'm hearing you right, [your company] does not have a practice of attempting to stop policyholders from assigning excess judgment claims by claiming a right to refuse consent under the insurance contract? A. I would have to answer that by saying I don't really know, because I've never seen it. In my time, in my positions at [your company], it's simply never come up. Q. And you agree you were designated by [your company] today to be -- to provide [your company]'s knowledge -- A. Uh-huh. Q. -- on excess judgment claims -- A. Correct. Q. -- with regards specifically to assignments; is that right? A. Correct. Q. Do you know of anyone else who might have different information? See Deposing the Organization 34
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