The Corporate Representative’s Deposition Bill Of Rights (And Wrongs)

by Carlton Fields

Your company’s general counsel just “voluntold” you that you’re going to be deposed as the company’s representative in a court case that you’ve never heard of. What in the world is she talking about, and what will you have to do? This primer tells you.

Corporations may be people, but not the kind who can sit down in a chair and answer their opponent’s questions under oath. So when your company’s opponents want to take your company’s deposition, court rules allow them to give the company a list of topics and require the company to identify one or more people who will give live testimony at a deposition. That person is known as the corporate representative. Here’s what the corporate representative should know about their role.

You Do Not Have The Right To Remain Silent

It doesn’t matter if you don’t know anything about the topics in the deposition notice, or if no one person in the company knows everything about them. Educating a witness who can gather and summarize everything that the company does know is just one of the “obligation[s] that flows from the privilege of using the corporate form to do business.” QBE Ins. Corp. v. Jorda Enterprises, Inc., 277 F.R.D. 676 (S.D. Fla. 2012). In his QBE order, U.S. Magistrate Judge Jonathan Goodman listed 39 paragraphs of “guiding principles” for corporate representative depositions. Several of those principles, along with some other key considerations for corporate representatives, are summarized here.

The company must provide a witness who can testify to:

  • More than just the witness’s own personal knowledge. If you’ve ever been deposed as an individual witness, you were probably told not to speculate, and that your attorney could object if a question sought information you didn’t personally know. As the corporate representative, you usually don’t enjoy that protection. Your company must educate you about the topics in the notice, even if they go well beyond anything you were personally involved in. Sara Lee Corp. v. Kraft Foods, Inc., 276 F.R.D. 500, 503 (N.D. Ill. 2011).
  • Information from the boardroom to the mailroom. The corporate representative may need to meet with everyone from senior management to the most junior employees, and even contact government and regulatory officials outside the company. Fleurimond v. New York Univ., CV 09-3739 ADS AKT, 2011 WL 3273876, at *3 (E.D.N.Y. July 29, 2011).
  • Information that is verbally conveyed. Facts are not always documented in the form of written correspondence. As the corporate representative, you will be responsible for relevant information, even when it was brought to your knowledge orally. CSX Transp., Inc. v. Vela, 2:06-CV-112-RLY-WGH, 2007 WL 3334966, at *2 (S.D. Ind. Nov. 8, 2007).
  • Information “reasonably available” to the company. Even if the company doesn’t have knowledge readily available, if the topic is relevant to the litigation and the company wants to offer evidence on that topic, it must gather the information “reasonable available” to it, and prepare the corporate representative to testify regarding what it has learned. Fowler v. State Farm Mut. Auto Ins. Co., No. 07-00071 SPPK-KSC, 2008 WL 4907865, at * 4 (D. Haw. 2008).
  • Information known only to former employees. If no one still with the company knows about the topics, but former employees do, the company must make reasonable efforts to learn what those former employees know. This includes reviewing “former employees' files and, if necessary, interviews of former employees or others with knowledge.” In re Brican Am. LLC Equip. Lease Litig., 10-MD-02183, 2013 WL 5519969,  at *10 (S.D. Fla. Oct. 1, 2013). On the other hand, the company can’t be faulted for failing to interview witnesses who refuse to speak to it. Costa v. County of Burlington, 254 F.R.D. 187, 191 (D.N.J. 2008).
  • Information that comes from other documentary evidence in the case. To prepare for the deposition, the corporate representative may need to “review available materials, such as fact witness deposition testimony, exhibits to depositions, documents produced in discovery, materials in former employees’ files and, if necessary, interviews of former employees or others with knowledge.” QBE, 277 F.R.D. at 689.
  • Information that takes much time and effort to review. Just because deposition preparation is time-consuming and burdensome doesn’t excuse failure to adequately prepare. Peshlakai v. Ruiz, CIV 13-0752 JB/ACT, 2014 WL 459650 at *22 (D.N.M. Jan. 9, 2014).
  • Information about the company’s subjective point of view. The corporate representative usually has to know more than just the facts. She also has to offer the company’s positions, beliefs, interpretation of events, and opinions. Additionally, she must “explain the organization’s interpretation of documents, give reasons for the interpretation, and stand subject to cross-examination.” F.D.I.C. v. 26 Flamingo, LLC, 2:11-CV-01936-JCM, 2013 WL 3975006, at *5–6 (D. Nev. Aug. 1, 2013).
  • Information the company learned through its lawyers. Just because the company learned information through lawyers or investigators doesn’t necessarily make it privileged. The company need  not disclose its lawyers’ opinions or strategies, and can sometimes protect the details of what investigative avenues it has and has not pursued. Protective National Insurance Company of Omaha v. Commonwealth Ins. Co., 137 F.R.D. 267 (D. Neb. 1989); United States v. District Council of New York City And Vicinity of the United Brotherhood of Carpenters and Joiners of America, 1992 WL 208284 (S.D.N.Y. Aug. 18, 1992). But the corporate representative must usually testify to facts that a company learned through its lawyers’ investigation. SEC v. Merkin, 283 F.R.D. 689, 697–698 (S.D. Fla. 2012).
  • Information about how the company keeps its information. A company’s opponent can legitimately ask about the company’s “general file keeping, storage and retrieval systems.” Marker v. Union Fidelity Life Ins. Co., 125 F.R.D. 121, 126 (M.D.N.C. 1989).

Anything You Say (Including “I Don’t Know”) May Be Used Against Your Company

Your company is required to provide a witness who can provide answers that bind the company. Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1146 (10th Cir. 2007). That means the company will have to stand by your words throughout the case, unless it’s got a very good explanation for why you got it wrong.

This also means that if your answer is “I don’t know,” then the company may be stuck with “we don’t know” at trial if the court forbids the company from offering evidence on the issue. Fraser Yachts Fla., Inc. v. Milne, 2007 WL 1113251, at *3 (S.D. Fla. Apr. 13, 2007); Ierardi v. Lorillard, 1991 WL 158911 (Aug. 13, 1991).

If you have to testify that, even after a reasonable investigation, the company still doesn’t know something, you’ll have to testify to the company’s opinion about why it believes the facts should be construed in a certain way. United States v. Taylor, 166 F.R.D. 356, 363 (M.D.N.C. 1996).

You Have the Right To An Attorney (To Help Your Prepare)

Just because information must be gathered by interviewing executives and employees doesn’t mean that you must personally conduct those interviews. The witness need not personally conduct interviews of witnesses. Reichold, Inc. v. U.S. Metals Ref. Co., 2007 WL 1428559 (D.N.J. May 10, 2007). Your lawyers, investigators, or others in the company can conduct the interviews, review the documents, and then brief you on them.

You Have The Right Not To Be The Company’s Most Knowledgeable Person

Some deposition notices still ask for the “person most knowledgeable” on the topics. But that’s not what the rule requires. So long as you’ve been adequately prepared to bind the corporation with your answers, it doesn’t matter if others in the company know a lot more than you do about the topic. Aldridge v. Lake Cnty. Sheriff's Office, 11 C 3041, 2012 WL 3023340 at *4 (N.D. Ill. July 24, 2012).

Some courts have even said that companies are free to designate a particular witness for any number of surprising reasons. “[A] corporation may have good grounds not to produce the ‘most knowledgeable’ witness for a 30(b)(6) deposition. For example, that witness might be comparatively inarticulate, he might have a criminal conviction, she might be out of town for an extended trip, he might not be photogenic (for a videotaped deposition), she might prefer to avoid the entire process, or the corporation might want to save the witness for trial.” QBE, 277 F.R.D. at 689 at 688.

You Have The Right To Know What’s On The Test

The rules require “reasonably particular” topics from your opponent. They can’t require you to memorize the encyclopedia by adding phrases like, for example, “including but not limited to,” to their topics. Reed v. Bennett, 193 F.R.D. 689, 692 (D. Kan. 2000). Topics like “any statement of fact set forth in the complaint to which defendant has denied,” or any documents a party “might conceivably offer as evidence at trial” are also improper for the same reason. Skladzien v. St. Francis Reg. Med. Center, 1996 WL 807353 (D. Kan Dec. 19, 1996); Kranias v. Tsiogas, 941 So. 2d 1173 (Fla. 2d DCA 2006).

If you don’t properly prepare for the deposition, your company can be sanctioned with a fine, a ruling that its witnesses won’t be allowed to testify at trial, or even with stricken pleadings. Reilly v. Natwest Mkts. Grp., Inc., 181 F.3d 253, 269 (2d Cir. 1999).

On the other hand, you’re not required to be perfect. Your company won’t be sanctioned just because you can’t answer every question on a certain topic. Elan Microelectronics Corp. v. Pixcir Microelectronics Co. Ltd., 2:10-CV-00014-GMN, 2013 WL 4101811 at *8 (D. Nev. Aug. 13, 2013).

If it turns out that you don’t have all the details on a particular topic, the company will have to follow up by producing another witness. Marker v. Union Fidelity Life Ins. Co., 125 F.R.D. 121, 127 (M.D.N.C. 1989).

Courts recognize that these depositions are not “a memory contest or an opportunity to require a witness to do detailed mathematical calculations on the spot,” but they do require the company to make a good faith conscientious effort to properly prepare its witness. Elan Microelectronics Corp. v. Pixcir Microelectronics Co. Ltd., 2:10-CV-00014-GMN, 2013 WL 4101811 at *5 (D. Nev. Aug. 13, 2013).

That said, if the witness’s knowledge is limited for some reason, the company should notify its opponent of that fact before the deposition begins. Calzaturficio S.C.A.R.P.A. s.p.a. v. Fabiano Shoe Co., Inc., 201 F.R.D. 33, 38 (D. Mass. 2001).


Testifying as your company’s representative isn’t always easy. Done right, however, your work will be invaluable in helping your company tell its story at trial.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Carlton Fields | Attorney Advertising

Written by:

Carlton Fields

Carlton Fields on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.