Florida Appellate Court Clarifies Knowledge Base for Corporate Representative Deponents

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On March 20, 2013, Florida’s Fourth District Court of Appeal issued an opinion clarifying the procedure for designating, and producing, a corporate representative for deposition pursuant to Florida Rule of Civil Procedure 1.310(b)(6). In Carriage Hills Condominium, Inc. v. JBH Roofing and Constructors, Inc., 109 So. 3d 329 (Fla. 4th DCA 2013), a roofing contractor brought an action against a condominium owners’ association for breach of contract and other claims. JBH noticed for deposition the “corporate representative of [the Association] with the most knowledge of the allegations contained in the complaint.” The Association designated its president to appear at the deposition, during which the witness testified as to her opinions and beliefs. In analyzing whether summary judgment was properly entered in favor of JBH, the Fourth District held that JBH did not properly notice the Association’s corporate representative for deposition and the Association did not designate the proper deponent, per Rule 1.310(b)(6).

As the Fourth District explained, Rule 1.310(b)(6) was borrowed from a 1970 amendment to its federal counterpart, Federal Rule of Civil Procedure 30(b)(6), and is designed, in part, to streamline litigation. The rule imposes burdens upon both parties; the party seeking the discovery is required to describe, with reasonable particularity, the matter(s) for examination and the responding party must then produce one or more witnesses who can testify as to the corporation’s knowledge of the specified topics. “This enables the deposing party to gather information from the corporation by way of a human being named by that corporation to serve as the corporation’s voice.” As the corporation’s “voice,” the deponent does not testify about matters within his or her personal knowledge, but rather speaks for the corporation.

The Fourth District confirmed that Rule 1.310(b)(6) does not require – or even contemplate, for that matter – that the corporation produce the witness with the “most knowledge” on the specified topic(s); in fact, the witness is not required to possess any personal knowledge at all. Rather, the corporation must prepare the witness, whether from documents, past employees, or other sources, so that the witness can give “complete, knowledgeable, and binding answers on behalf of the corporation.” The appellate court’s conclusion is consistent with federal cases interpreting the corollary federal rule. See, e.g., United States v. Taylor, 166 F.R.D. 356, 361 (M.D.N.C. 1996).

When a Rule 1.310(b)(6) deposition is properly noticed and conducted, the testimony of the witness “is deemed to be the testimony of the corporation itself.” Thus, the testimony is binding on the corporation. The appellate court noted that this does not mean that the testimony conclusively establishes a fact and estops the corporation from offering other evidence on the issue. Rather, “testimony given at a Rule 1.310(b)(6) deposition is evidence which, like other deposition testimony, can be contradicted.” 

The Carriage Hills Court noted that in the case before it, the deposition was not properly noticed, per Rule 1.310(b)(6), because JBH’s notice did not request the Association to designate a witness “to testify on its behalf . . . about matters known or reasonably available to the organization.” Rather, it requested the deposition of the corporate representative with “the most knowledge of the allegations in the complaint.” The deposition notice also failed to designate with reasonable particularity the issues to be examined. In response to the defective notice, the Association produced a person it believed had the “most knowledge” of the allegations in the complaint, despite the fact that the deponent testified that she disagreed with many of the corporation’s positions and simply gave her opinions and beliefs. Thus, the Association failed to satisfy its burden under the rule, as it did not prepare the witness to testify regarding the corporation’s position.

Utilized properly, Rule 1.310(b)(6) gives the corporation being deposed more control by permitting it to select and prepare a witness to testify on its behalf. In exchange for that control, the corporation is required to “have the right person present at the deposition.”