35 Trial Lawyer • Summer 2023 See Deposing the Organization p 36 then confirm that the witness has seen the notice, that the organization has designated the witness to testify on its behalf on the subjects noticed, and that the witness is prepared to testify for the organization. Subjects do not have to be taken in the order listed in the notice. However, it can be helpful to introduce a subject by referring to the notice topic by number, summarizing the topic, and asking the witness if they are prepared to testify on that subject and consent to testify for the organization on that topic. That way, for trial, it is easier to put together selections of the deposition of the organization testimony that the jury can follow: the defendant organization knew this was the topic, the organization designated this person as its official witness on that subject, the person was prepared to answer questions about that matter and consented to do so. It is important to stay within the boundaries defined by the subjects identified in the notice. If the questioner strays beyond those boundaries, the defending lawyer may object, or may state that the question is outside the scope of the notice and, therefore, the answer is not the answer of the organization. If there are too many questions and answers outside the scope of the notice, a judge might later decide that the person who gave the testimony has effectively already been deposed and may not be deposed again (under the “no two bites of the apple” principle). It is good practice to state on the record at the end of the deposition of the organization that this has been a deposition of the organization, not the witness individually, and that plaintiff reserves the right to take their individual deposition at a later time. Legal principles If there are disputes about ORCP 39C(6) deposition matters, courts may look to federal law because the Oregon rule was based on the earlier-promulgated FRCP 30(b)(6). Both rules require a defendant corporation to designate a person to testify on behalf of the corporation about information that is “known or reasonably available” to the corporation. Federal case law interpreting the equivalent federal rule guides Oregon’s understanding of the state rule. See, e.g., Pamplin v. Victoria, 319 Or 429, 433-34 (1994) (when interpreting the ORCPs, Oregon courts look to federal case law interpreting the federal counterpart). Federal case law confirms an organization’s deposition obligations and outlines possible available sanctions. Courts generally agree on the specific duties of a defendant organization that receives a notice of deposition: [C]ertain principles are consistent in every court opinion to address these issues so far. First, the deponent has the duty of being knowledgeable on the subject matter identified as the area of inquiry. Clearly, a deponent that does not know about the subject matter to be inquired about is useless as a deponent at all. Second, the designating party is under the duty to designate more than one deponent if it would be necessary to do so in order to respond to the relevant areas of inquiry that are specified with reasonable particularity by the plaintiffs. Third, the designating party has a duty to prepare the witness to testify on matters not only known by the deponent, but those that should be reasonably known by the designating party. Obviously, the purpose of a [corporation’s] deposition is to get answers on the subject matter described with reasonable particularity by the noticing party, not to simply get answers limited to what the deponent happens to know. Fourth, the designating party has a duty to substitute an appropriate deponent when it becomes apparent that the previous deponent is unable to respond to certain relevant areas of inquiry. Alexander v. F.B.I., 186 FRD 137, 141 (D DC 1998) (numerous citations omitted) (quoted in Skyline Potato Co., Inc. v. Tan-O-On Mktg., Inc., CIV 10-0698 JB/ RHS, 2012 WL 3150385 (D NM July 30, 2012)); accord Alexander v. F.B.I., 186 FRD 148, 151-52 (D DC 1999). The [corporation’s] designee does not give his personal opinions. Rather, he presents the corporation’s ‘position’ on the topic. Moreover, the designee must not only testify about facts within the corporation’s knowledge, but also its subjective beliefs and opinions. The corporation must provide its interpretation of documents and events. United States v. Taylor, 166 FRD 356, 360-63 aff'd, 166 FRD 367 (MDNC 1996) (internal citations omitted). The organization deposition rule was created in part to “curb the ‘bandying’ by which officers or managing agents of an organization are deposed in turn but each disclaims knowledge of facts that are clearly known to . . . the organization” as a whole. FRCP 30 (advisory committee’s note 1970); accord Wilson v. Lakner, 228 FRD 524, 528 (D Md 2005). The rule was also created to relieve parties of the burden of having to depose “an unnecessarily large number of [a corporation’s] officers and agents.” FRCP 30 (advisory committee’s note 1970). Ultimately, “the purpose of a [corporation’s] deposition is to get answers on the subject matter” as known by the corporation, “not to simply get answers limited to what the [particular] deponent happens to know.” Alexander, 186 FRD at 152; accord Capers v. Noah’s Ark Repair Serv., Inc., 6:11-CV-457-ORL-28, 2012 WL 5830588 (MD Fla Nov. 16, 2012). Indeed, “the designated witness is ‘speaking for the corporation,’ and this testimony must be distinguished from that of a ‘mere corporate employee’” whose deposition is not considered that
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