This blog post is the first in a three-part series identifying the witnesses whose depositions are commonly taken in cases where electronically stored information will shape settlement or trial outcomes.
Litigation counsel today routinely engage with large quantities of digital evidence, often with case outcomes turning on the advocate’s success at unearthing or preserving relevant electronically stored information (ESI). As a result, digital evidence is changing the way attorneys approach trial preparation. According to a 2018 Bloomberg Law survey commissioned by Esquire Deposition Solutions, nearly one-third of attorneys whose deposition practice was increasing said that coping with the novel demands of ESI was the reason why. In fact, the presence of ESI was the leading reason cited for their increasing deposition workload.
For these attorneys, obtaining ESI during pretrial discovery is just the beginning of their trial preparations. Not only did ESI reveal relevant evidence and new witnesses to be deposed, it also brought into view possible new parties and legal theories not pled in their original complaint or answer – further adding to the list of potential deposition witnesses. Thorough pretrial discovery might involve conducting depositions of company-designated information technology officials, document custodians, forensic experts, and former employees who may have left with valuable digital evidence.
It wasn’t always so. The affairs of pre-digital businesses could be reliably brought into the light by consulting relatively few sources: receipts, contracts, timecards, correspondence, ledger entries — all kept in file cabinets and desk drawers on the premises. Today, however, valuable electronic evidence can be found in business and personal email accounts, on-premises network computers, cloud services, personal computers, databases, social media websites (e.g., LinkedIn, Facebook), cellphones, voicemail, Skype chats, Slack messages — any medium capable of electronic data storage anywhere in the world.
This state of affairs prompted one group of electronic discovery commentators to remark that “the proliferation of electronically stored information has, in many cases, created a new tier of discovery, not about the substance of the case, but about the parties’ information technology infrastructure that might contain ESI related to the substance of the case.” James K. Lehman, John D. Martin & Daniel R. D’Alberto, “Electronic Discovery and the 30(b)(6) Deposition,” Understanding the New E-Discovery Rules (Defense Research Institute 2006).
ESI Reveals New Witnesses, New Parties, New Theories
Thorough litigators know that electronic data produced in response to pretrial document requests cannot be effectively used without deposition testimony explaining the significance of what has been produced and identifying where additional electronic evidence might be stored. According to a 2018 survey conducted by Bloomberg Law for Esquire Deposition Solutions, LLC, respondents who identified electronic discovery obligations as a reason for conducting additional depositions cited four leading factors:
- ESI revealed additional witnesses with information pertinent to the litigation (81 percent);
- ESI revealed new substantive information, creating a need to depose additional witnesses
- ESI revealed potential new parties to the litigation, requiring deposition support (53 percent); and
- ESI revealed new legal theories, requiring support through deposition (53 percent).
Diligent counsel, faced with ESI that could shape the outcome of a case, will consider taking the deposition of at least one — and possibly all — of the following five categories of witnesses:
- Rule 30(b)(6) Witnesses
- Party Electronic Document Custodians
- Non-Party Electronic Document Custodians
- Forensic Witnesses
- Former Employees
Part One of our series discusses the Rule 30(b)(6) deposition in the context of pretrial discovery involving ESI. Part Two addresses depositions of document custodians. In Part Three considers the depositions of forensic experts and former employees.
Deposing the Rule 30(b)(6) Witness
As ESI has become more important in litigation, so too have depositions conducted under Rule 30(b)(6) of the Federal Rules of Civil Procedure. The reason is simple. At the outset of litigation, counsel typically knows little about the other party’s information technology practices and, consequently, has scant information where relevant ESI under the other party’s control can be found.
Enter Rule 30(b)(6), which authorizes a deposition directed to the opposing organization itself and not to any single individual. The rule provides, in part:
Notice or Subpoena Directed to an Organization. In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. 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; and it may set out the matters on which each person designated will testify. A subpoena must advise a nonparty organization of its duty to make this designation. The persons designated must testify about information known or reasonably available to the organization.
A Rule 30(b)(6) deposition, when conducted early in litigation, puts a spotlight on an opponent’s information technology operation. When conducted by skilled counsel, a Rule 30(b)(6) deposition promotes efficient electronic discovery by helping to shape future ESI requests and minimizing fishing expeditions and other wasteful pretrial skirmishing. Topics frequently addressed in Rule 30(b)(6) depositions include:
- the opposing party’s compliance with the litigation hold, including questions designed to discover whether spoilation/deletion of critical ESI has occurred;
- the opposing party’s methods for collecting ESI offered for review;
- identification of ESI custodians (including former employees and non-party custodians) and related chain of custody issues;
- technologies used to produce ESI for review;
- the identities of all information systems personnel, including those individuals conducting the opposing party’s ESI collection and production efforts;
- identification of privileged communications withheld from production and the opposing party’s methods for determining when to assert privilege; and
- inquiries into whether the ESI is kept in the “ordinary course of business” sufficient to overcome hearsay objections.
Other permissible objectives in Rule 30(b)(6) depositions include discovery into the methods and software used to respond to discovery requests, discovery into whether the opposing party is diligently responding to document requests, or to assess claims that sought-after ESI is inaccessible.
Under Rule 30(b)(6), an organization is required to designate an individual who can testify on its behalf. The deponent’s answers are binding on the organization, and they need not be based on direct personal knowledge. If the deponent’s testimony is based on information collected from former employers and other non-parties, counsel will be required to conduct additional depositions (or obtain stipulations from opposing counsel) to ensure the admissibility of that evidence.
In some cases, it will be necessary for an organization to designate more than one individual to meet its Rule 30(b)(6) obligations. Federal rules place a presumptive limit of 10 depositions in each case; however, advisory committee commentary to Rule 30 states that multiple Rule 30(b)(6) depositions should be considered as a single deposition regardless of the number of witnesses deposed.
An effective Rule 30(b)(6) deposition is often the key to efficient case management. This deposition guides all future electronic discovery requests, reveals the precise nature of an opponent’s information technology operation, and unearths the identities and roles of key witnesses.