CORPORATE DEPOSITIONS: Recent Amendment to Federal Rules Mark a Positive Change

A party that wants to rely upon the testimony of a treating physician to support a personal injury case in federal court should be sure to consult the Federal Rules of Civil Procedure. Different rules will apply depending on the scope of the treating physician’s testimony.

Rule 26 sets two standards for expert disclosures. 26(a)(2)(C) sets a “lower standard” that typically applies to treating physicians. Under this standard, the treating physician may provide testimony beyond his personal knowledge, but he must base his opinions on “facts or data obtained or observed in the course of the sequence of events giving rise to the litigation.” LaShip, LLC v. Hayward Baker, Inc., 296 F.R.D. 475 (E.D.La. Nov. 13, 2013). Further, the physician may be permitted to testify regarding causation and future medical treatment if these opinions come from the doctor’s actual treatment of the party.

Under this “lower standard,” the party seeking to offer the physician’s testimony, usually the plaintiff, must timely disclose: (1) the subject matter on which the treating physician is expected to present evidence; and (2) a summary of the facts and opinions to which he is expected to testify. Importantly, production of a plaintiff’s medical records alone is not sufficient – the plaintiff must actually provide a summary of the physician’s opinions. See e.g. Williams v. State, 2015 WL 5438596, at *4 (M.D. La. Sept. 14, 2015). If the party fails to timely disclose this information, he runs a substantial risk of having his testimony excluded from trial.

Where the physician’s testimony goes beyond the medical records or his treatment of the plaintiff, a “higher standard” can apply to the physician’s testimony. Rule 26(a)(2)(B). The physician may be required to produce a complete expert report to disclose: (1) a complete statement of all opinions the witness will express and the basis and reasons for them; (2) the facts or data considered by the witness in forming them; (3) any exhibits that will be used to summarize or support them; (4) the witness’s qualifications, including a list of publications authored in the last 4 years; (5) a list of all cases the expert has been used as an expert at trial or in depositions; and (6) a statement of the compensation the witness is to be paid for his work and testimony.

Application of this “higher standard” often turns on the frequency and recency of the physician’s treatment. Courts are also more likely to apply the higher standard when the physician’s opinions are based general scientific knowledge of the plaintiff’s condition rather than his actual treatment of the plaintiff.

John Grinton, a Keogh Cox associate whose practice areas include commercial and construction litigation. When he is not practicing law, John spends most of his time with his wife and son, and their two dogs.

The image of a law firm stuffed with banker boxes floor-to-ceiling is shifting to the view of a computer server filled with gigabytes of information. This is increasingly a digital world and the documents, photographs, charts, memos, and emails that are the “stuff” cases are built upon now often come in digital form. As a result, great emphasis is placed upon “electronic discovery.”

What is “electronic discovery”? “Discovery” includes the exchange of information between parties in a lawsuit. “Electronic discovery” is the process of collecting, preparing, reviewing, and producing “electronically-stored information” in the context of a civil action.

What is electronically stored information (“ESI”)? The Federal Rules of Civil Procedure define ESI as information created, manipulated, communicated, stored, and best utilized in digital form, requiring the use of computer hardware and software. Because of the wide variety of computer systems currently in use, and the rapidity of technological change, courts often give an expansive definition of ESI which can include any type of information that is stored electronically, including emails, images, spreadsheets, “metadata,” PDF documents, databases, and other groupings of information.

Are printed copies of my emails sufficient? In litigation, emails are commonly produced as printouts or PDFs. However, courts may require the production of emails in their native electronic form to allow the other party to certify that the produced emails have not been altered. If the court finds that a party, anticipating litigation, intentionally deletes or destroys ESI, that party may be exposed to a claim that they have “spoliated” evidence. An opponent may even complain if a party fails to take affirmative steps to prevent information from being deleted or overridden as part of an automated process. For instance, this often occurs when a surveillance camera system “writes over” older video to create space for new video.

Litigation is increasingly a “part of doing business.” In federal court, corporate depositions are governed by Federal Rule of Civil Procedure 30(b)(6) (frequently referred to as a “30(b)(6) deposition”). When a corporate representative is appointed to testify on behalf of a company, they are typically provided a deposition notice which identifies the subjects he or she will be asked to address in their testimony. However, the process is not always smooth when the parties disagree about what is fairly covered in the notice. A recent amendment to Rule 30 aims to improve the process.

Preparing for a 30(b)(6) deposition can be overwhelming and time-consuming. Often, the imprecise identification of subjects in the notice leaves the corporation wondering what the noticing party really seeks to explore or even who is the best individual to testify to the topics identified. The federal judiciary has observed that corporate representative(s) under the current practice are often unprepared to provide the necessary testimony and/or that the entity’s interpretation of the deposition topics does not match the intent of the noticing party. The result is aborted or suspended depositions, extended litigation, increased costs, and the birth of theories that the deponent intentionally obstructed the deposition, which is usually not the case.

To address these issues, effective December 1, 2020, Rule 30(b)(6) now reads as follows (changes in bold):

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 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. Before or promptly after the notice or subpoena is served, the serving party and the organization must confer in good faith about the matters for examination. A subpoena must advise a nonparty organization of its duty to confer with the serving party and to designate each person who will testify. …

The recent amendment directs the serving party and the named organization to confer before or promptly after the notice or subpoena is served about the matters for examination. The intent is to “facilitate collaborative efforts” and to encourage “candid exchanges about the purposes of the deposition and the organization’s information structure [which] may clarify and focus the matters for examination and enable the organization to designate and to prepare an appropriate witness or witnesses, thereby avoiding later disagreements.” (Committee Notes; Rule 30). The Committee Notes even suggest that the notice of the deposition may be “refined as the parties confer.” The Committee Notes further provide that the obligation is to “confer in good faith,” not to reach agreement, and remind that “it may be desirable to seek guidance from the court.”

The recent changes to Rule 30 are subtle but may prove impactful. Because the new procedure is now in effect, we should know soon.