I am working on a few cases involving corporate defendants of various sizes. One of the most effective discovery devices around for these kinds of cases is the corporate representative deposition.
Md. Rule 2-412 allows a corporation or other organization to be deposed through a designated representative. The federal rule is 30(b)(6). The way it works, is that the party seeking the deposition sends a notice, where they “describe with reasonable particularity the matters on which examination is requested.” Then the corporation must designate one or more people who will be prepared to testify regarding those matters “known or reasonably available” to the corporation.
The Benefits of a Rule 2-412 or 30(b)(6) Deposition
This is a powerful discovery tool because the answers given by the corporation’s designated representative are binding. The entity is under an obligation to have the designee review the areas upon which the examination is requested, and be prepared to give answers that will be binding. There is law saying that once a designee testifies, the corporation may not later present affidavits or other evidence in contradiction to the answers given by the designee. Under some circumstances, even an “I don’t know” can be binding on the corporation when said by its designee.
Getting Ready for a Corporate Representative Deposition
There is a great resource for preparing for these kinds of depositions produced by the National Institute for Trial Advocacy called The Effective Deposition. Effective Deposition is a good resource I used for preparing for depositions of all types. Experience has taught me that the advice in the book is right on the money.
How Maryland Court’s Look at These Depositions
I didn’t include cites, but all the statements I made above are supported by either Maryland case law, or federal law interpreting the corresponding federal rule. Because the Maryland Rules are largely patterned on the federal rules, in the absence of controlling authority, Maryland courts look to the federal rule for guidance.
This is true for all the Maryland Rules, not just those pertaining to depositions. This is a very useful rule to know. If you deal regularly with procedural issues in discovery, you know that there are not many Maryland appellate cases on point. First, discovery issues are not appealable until the end of the case. So if you get a verdict it may never be appealed. Second, by then the economic realities of the case may not allow for an appeal. Finally, even if there is an appellate issue and there is the will and economic ability to appeal, the standard of review that will be applied is the very deferential “abuse of discretion” standard.
However, there is a very large body of law interpreting the federal rules, because federal trial court decisions are often reported. These may be found either in F.Supp., or in the Federal Rules Decisions. So when you have a thorny legal issue involving Maryland pretrial procedure, don’t forget that federal law may be very valuable in providing guidance. This is particularly true when you can locate and rely upon opinions authored by well-known local federal judges. I have found that Maryland trial court judges will place great weight on evidence and discovery opinions decided by Hon. Paul W. Grimm from back when he was a magistrate.
So once you are prepared on the strategic and factual considerations involved, and know where to look for the law if you have a problem, the corporate representative deposition is a great way to learn facts and get binding answers in cases involving corporate defendants.