Deposing nonhumans: corporate representative depositions in Florida.

• Author: Rivero, Andres

You represent the plaintiff in a complex commercial litigation case in Florida state court against a giant corporate defendant. You need to gather evidence at an early stage to push the case forward. The best way to begin to gather evidence is to pin down your corporate opponent's positions. How do you do it without having to guess whom to depose? The answer: Depose the corporate representative under Fla. R. Civ. P. 1.310(b)(6) and begin your discovery voyage. (1)

A Solution Is Born

Before the rule was adopted, you had two options if you wanted to depose a corporation. Plainly, you could not physically depose a corporation as it could not speak for itself. Still, you needed to find the natural person who spoke for it. If you knew specifically whom you wanted to depose, it was easy--you would simply schedule that person's deposition and use the ordinary discovery rules to compel compliance. (2) But if you didn't know the person's identity, you had a problem. Courts had generally held that you (as the party seeking the deposition) could not "burden" the corporation to find the appropriate witness. (3) So, unless you got lucky with your first pick, you might have to take several depositions just to identify the person with the most knowledge. This was so because, after disclaiming all knowledge, each deponent would, in turn, point to another person. (4) This made it easy for the corporation to hide the ball.

To make matters worse, the corporation would inevitably ask the court for a protective order because you had taken too many depositions. Of course, when you went to the hearing and pointed out to the court that the corporation had created the very problem that it complained about, the corporation would vigorously deny the allegation.

In amending Fla. R. Civ. P. 1.310(b)(6) in 1972, the drafters attempted to correct this daisy-chain problem by borrowing the substance of the rule from a 1970 amendment to Fed. R. Civ. P. 30. (5) The Florida rule now permits you to ask the corporation to designate its corporate representative, which, in theory, eliminates the corporate shell game. (6) By forcing corporations to play fair, you no longer have to depose numerous corporate officers and agents to find the proper person. (7)

Follow Procedure Carefully

Under the rule, you begin by naming a corporation (not an individual) as a deponent. (8) Under the rule, it's the corporation--not you--that designates the deponent. (9) That's the point: The corporation must find the proper witness. You must then designate the topics on which you intend to examine the witness with "reasonable particularity." (10) The topics may include anything that you could otherwise ask at a deposition.

Unfortunately, the text of the rule does not define "reasonable particularity." (11) Corporations like to allege that you have failed to state your topics with the requisite particularity. This delays the deposition and buys the corporation additional time. So, how do you comply with the rule and avoid the delay? Although no definite answer exists, some courts have come up with certain minimum standards. (12)

For example, the court in Reed v. Bennett, 193 F.R.D. 689, 692 (D. Kansas 2000), in construing the comparable federal rule (that is, Fed. R. Civ. P. 30(b)(6)), held that a notice stating that the areas of inquiry will "include but not [be] limited to" the areas specifically enumerated was overbroad and therefore failed to meet the reasonable particularity standard. (13) Another district court has held that designating the topic as "such other officers and employees of said plaintiff as have knowledge of the matters involved in this action" was too general. (14)

Because the cases don't give a definite answer, you should look to the text of the rule. The rule's plain language appears to require that the topic designations should at least allow a reasonable person to understand what you intend to cover during the deposition. But be careful--you may not want to reveal everything you intend to ask.

Once you have designated your topics with "reasonable particularity," notice the deposition. If the corporation is a party to the lawsuit, simply send it the notice of deposition. And if you want to depose a nonparty corporate representative, serve that nonparty corporation with a subpoena as you would for any nonparty deposition. Of course, designate the topics in the nonparty subpoena with "reasonable particularity." And, for clarity, you should explain that the nonparty corporation has a duty to designate someone to testify for it.

After you send the notice, the burden shifts to the corporation to produce the appropriate witness (or witnesses). Who is the appropriate person? Generally, the corporation should produce the person that can best answer questions about the topics that you designated. (15) But the rule only requires the testimony to come from an officer, director, managing agent, or a designee "who consents."

Who is a corporation's officer or director needs no explanation. Managing agents include those "in the exclusive and immediate control ... of a department or of the entire works conducted at the place where he is in charge." (16) A person "who consents" to testify on the corporation's behalf also can serve as the corporate...