34 Trial Lawyer • Summer 2023 Deposing the Organization Continued from p 33 A. Not specifically. Not off the top of my head. Q. Do you have any idea why [your company] would ever attempt to interfere with a policyholder's assignment of excess judgment claims in order to obtain relief from the judgment? A. I do not. We played this designation and others like it to the jury. As you might imagine, testimony like this proved helpful to Chuck's case and damaging to the defendant insurance company. Deposition basics There have been numerous misunderstandings about depositions of an organization. An ORCP 39C(6) deposition is not a deposition of the “person most knowledgeable,” or “PMK,” a term sometimes used. Instead, each person who is designated and consents to testify is required to “testify as to matters known or reasonably available to the organization.” A deposition of an organization is not an “organizational deposition.” It is not limited to inquiring about the history, personnel and internal relationships of the organization (although those all could be subject matters, if desired). There is no provision in the rules for any response to a notice or subpoena of an organization other than designation of witnesses and their subject matters (although an organization always has the right to move for a protective order or to move to quash a subpoena). A deposition of the organization is not an individual deposition of the testifying witness, although it is prudent to ask the court reporter to entitle the transcript as the “deposition of [organization name] by [name of witness],” to avoid later potential confusion. Depositions of organizations are potentially powerful evidence in part because the testimony is on behalf of the organization. While an individual witness may say they do not know the answer to a question, if the question is within the scope of the ORCP 39C(6) notice, the witness is expected to answer if the answer is known or reasonably available to the organization. While in an ordinary deposition an individual witness generally has no obligation to research or otherwise prepare to testify, when an organization designates a witness to testify on its behalf, that witness is obligated to draw on all information available to the organization. A deposition of the organization is not limited to what a particular person happens to know. The organization must ensure that the witness it provides to testify on each topic area is apprised of all information that is known by or reasonably available to the organization on that topic, even when the witness did not previously know that information. As in Chuck’s case, depositions of organizations are particularly helpful in identifying applicable rules and relevant documents and in learning about how the organization is structured. The abstract responsibility to avoid unnecessary foreseeable harm to others is typically too general a principal to be effective in a trial. An ORCP 39C(6) deposition can be effectively used to identify industry or other standards and guidelines, applicable regulations, company policies and procedures, and to otherwise commit an organization to the applicable rules and the importance of those rules. When an organization testifies through its officially designated witness that something is a rule, and that the rule is important, that can carry a lot more weight than an individual saying the same thing. Documentation Obtaining relevant documents from organization defendants is almost always a challenge for a plaintiff. Those documents are often critical for later depositions and for trial. It is not uncommon for litigation defense counsel to consult with corporate counsel and, based on the information provided, inform the judge that the organization has made a diligent search and there are no responsive documents, or all responsive documents have been produced. It is sometimes effective to include as a topic in an early ORCP 39C(6) notice of deposition the existence, nature, organization and custodians of documents requested in discovery, and attach a copy of the requests for production. The testifying witness may disclose numerous responsive documents, making it difficult for the organization to later deny their existence, and assisting if a motion to compel is later required. In a large organization, it may be difficult for the plaintiff to figure out who the key people are who are important for the specific case. While in Chuck’s case the insurance company internal logs identified many key people, a deposition of the organization may be used to learn how the organization is structured, who reports to whom, the job titles and responsibilities, predecessor and successor employees in those positions, and the relationship of the entity to other affiliated entities. Knowing the identity of current employees with certain job responsibilities may help with future depositions, if needed. In some cases, knowing the identity of former employees with those job responsibilities may help with investigation and informal interviews. In taking the deposition of an organization, it is helpful to make the formal notice a deposition exhibit. Counsel can As in Chuck’s case, depositions of organizations are particularly helpful in identifying applicable rules and relevant documents and in learning about how the organization is structured.
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