Fundamentals of Trial Practice Series Depositions: Tips and Strategy for Antitrust Litigators

Trial Practice Committee
Fundamentals of
Trial Practice Series
Depositions: Tips and Strategy
for Antitrust Litigators
June 25, 2014
12:00 to 1:00 pm Eastern
46556089
Moderator:
• Layne Kruse, Norton Rose Fulbright
Panel:
• David Martinez, Robins Kaplan
• Robby Robertson, Hogan Lovells
• Judith Zahid, Zelle Hofmann
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Moderator
Layne Kruse,
Norton Rose Fulbright
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Panel Member
David Martinez,
Robins, Kaplan, Miller & Ciresi L.L.P.
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Panel Member
J. Robert Robertson,
Hogan Lovells
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Panel Member
Judith A. Zahid,
Zelle Hofmann Voelbel & Mason LLP
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Topics
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Witness preparation.
Foreign language problems
Effective presentations at trial
Use of party depositions at trial
Special problems for Rule 30(b)(6)
depositions
• Ethical issues on witness preparation
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Key Elements of Rule 30(b)(6)
• The deposition notice may “name as the deponent [an
organization] and must describe with reasonable
particularity the matters on which examination is
requested.”
• The named organization “must then designate one or
more officers, directors, or managing agents, or
designate other persons who consent to testify on
its behalf.”
• “The persons so designated must testify about
information known or reasonably available to the
organization.”
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A Company Has Latitude in Designating its
30(b)(6) Representative(s)
• The designated witness is not required to have
personal knowledge of the topic.
– The subject matter of the testimony is the knowledge
of the corporation, not of the individual.
– The 30(b)(6) witness is free to testify at the deposition
on matters outside his personal knowledge if they are
within the knowledge of the corporation.
– More than one witness may be needed in response to
the Notice.
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Questioning A Witness About Matters
Outside the 30(b)(6) Notice
Can a party issue a Notice that describes the
topics of the deposition and then question the
witness about matters outside the Notice?
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Paparelli v. Prudential Ins., 108 F.R.D. 727,
731 (D.Mass. 1985)(minority view).
“None of the reasons given by counsel for the
defendant Westinghouse for instructing the witness
not to answer fall within the category where an
answer would cause some serious harm, i.e. the
answer would reveal trade secrets, privileged
material, or other confidential material. . . .
Accordingly, the instructions not to answer were
improper and a violation of Rule 30(c) ...”
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King v. Pratt & Whitney, 161 F.R.D. 475
(S.D. Fla. 1995).
• “The answer is not clearly found on the face
of the Rules.”
• “Rule 30(b)(6) leaves this issue open to
question.”
• “However, this Court believes that there is a
better reading of the Rule and declines to
follow Paparelli.”
161 F.R.D. at 476 (emphasis added)
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King Court: Examining Party Should Not
Have to Re-Notice Witness
“Rule 30(b)(6) should not be read to confer some
special privilege on a corporate deponent
responding to this type of notice. Clearly, Plaintiff
could simply re-notice a deponent under the
regular notice provisions and ask him the
same questions that were objected to.
However, Plaintiff should not be forced to jump
through that extra hoop absent some compelling
reason.”
161 F.R.D. at 476 (emphasis added)
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Rule 30(b)(6) In Antitrust Cases:
Prior Government Investigations
In re Vitamins Antitrust Litigation, 216 F.R.D. 168
(D.D.C. 2003) (M.D.L. 1285) (sanctions for failure to
produce educated witness to testify; should have been
prepared on EC and Canadian issues).
In re Linerboard Antitrust Litigation, 237 F.R.D. 373
(E.D. Pa. 2006) (M.D.L. 1261) (notice improperly sought
facts underlying corporate counsel assertions in
document produced to FTC; counsel’s recollection of
internal investigation interviews was work product).
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Rule 30(b)(6) In Antitrust Cases:
Prior Government Investigation
In re Neurontion Antitrust Litigation, 2011 W.L. 253434
(D.N.J. 2011) (M.D.L. 1479) (Defendant should have
prepared witness to provide facts about denials in
answer compared to prior criminal plea).
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What are the ethical considerations of
witness preparation?
“An attorney must respect the important ethical distinction
between discussing testimony and seeking improperly to
influence it." Geders v. United States, 425 U.S. 80, 90 n.3
(1976); Hall v. Clifton Precision, 150 F.R.D. 525, 528 (E.D.
Pa. 1993).
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Permissible witness preparation activities
(Restatement, The Law Governing Lawyers §§116)
1.
Discussing applicability law to the events in
issue and the necessary proof, as well as legal consequence
2.
Reviewing factual context into which the
witness’s observations or opinions will fit;
3.
Inviting witness to provide truthful testimony
favorable to the lawyer’s client;
4.
Suggesting choice of words that might be
employed to make the witness’s meaning clear.
5.
Discussing the role of the witness and effective
courtroom demeanor;
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6.
Discussing the witness’s recollection and
probable testimony;
7.
Revealing to the witness other testimony or
evidence that will be presented and asking the witness to
reconsider the witness’s recollection or recounting of
events in that light;
8.
Reviewing documents or other physical
evidence that may be introduced; and
9.
Discussing probable lines of hostile crossexamination that the witness should be prepared to meet.
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Prohibited Activities
Model Rules of Professional Conduct, Rules 1, 3 and 8
1. Counsel or assist a client in conduct that the lawyer knows is
criminal or fraudulent (Rule 1.2(d));
2. Counsel or assist a witness to testify falsely, or offer evidence that
the lawyer knows to be false (Rule 3.3(a)(4));
3. Engage in conduct involving dishonesty, fraud, deceit, or
misrepresentation (Rule 8.4(c)); or
4. Engage in conduct prejudicial to the administration of justice (Rule
8.4(d)).
5. Obstruct another party’s access to a witness.
6. Induce or assist a prospective witness to evade or ignore process
obliging the witness to appear to testify.
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Closing
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