Civil litigation is a complex process that includes several stages. One of the most important parts of a lawsuit is the pre-trial discovery phase. Discovery typically occurs several weeks or even months ahead of the trial, and during this time, the plaintiff seeks to gain information and evidence as they prepare for trial. Depositions are an essential part of the discovery process, because they allow the opposing counsel to obtain important facts that may help their case.
The Deposition Structure
A deposition is a question and answer session where an attorney (or attorneys) for the opposing side asks questions of witnesses they believe to have knowledge of the facts of the case. The sworn oral testimony of witnesses during a deposition will be converted into a written transcript which can later be used in court.
Reasonable notice must be given to witnesses the opposing counsel wants to depose. This is typically done by serving a subpoena that commands the witness to appear at a specific time and in a specific place to give their testimony. Motions can be filed by the other side to modify or quash a subpoena based on various objections. These may include;
- Failure to give reasonable time to respond to the subpoena;
- Unreasonable travel requirements (such as being asked to drive over 100 miles to a deposition location);
- Invocation of the apex doctrine (more on this later).
Depositions can be held in virtually any location. They are often held at the law office of the attorneys who requested the deposition or at a court reporter’s office. A court reporter must be present to record the testimony and create a written transcript of the deposition, and the party requesting the deposition is responsible to pay the costs of the court reporter.
In higher profile cases, the party requesting the deposition is often willing to travel to the location of the witness (or witnesses). For example, in the case of West Virginia vs. McKesson, 2016, attorneys for the state of West Virginia are scheduled to depose five McKesson executives (including the company CEO) at their corporate headquarters in San Francisco. Lee Javins of Bailey, Javins, and Carter is one of the attorneys for the state in the scheduled deposition.
The Purpose of a Deposition
There are a number of reasons why depositions are important. They allow the party requesting the deposition to:
- Obtain critical facts regarding the case (e.g., how and when the injury occurred and who is responsible);
- Assess the strengths and weaknesses of their case;
- Pinpoint specific knowledge and facts that the witness possesses;
- Obtain a good sense of what the witness is likely to say at the upcoming trial.
Depositions are also helpful in determining the credibility of the witness and their testimony at trial. For example, if there are inconsistencies between what a witness says during the deposition and how they testify during the trial, it may call into question the credibility of their testimony and whether or not the judge or jury should believe it.
Who Can be Deposed?
Any witnesses with knowledge of the facts of a case can be deposed. This can include defendants, employees of a defendant (if the suit is being brought against an entity), former employees, as well as other witnesses. Executives, officers, managers, agents, and employees of a party to a lawsuit can be compelled to appear for a deposition by serving notice, and can be required to produce accompanying documents, electronic data, and other pertinent information. If the deponent is a former employee, they must be personally served with a deposition subpoena.
For example, if an entity is a defendant in a product liability lawsuit, attorneys for the plaintiff typically seek to depose both current and former employees who are/were directly involved in production/distribution of the defective product in question, because they are likely to have direct knowledge of what occurred and how the product caused harm to consumers. Usually, the plaintiff’s attorneys will also want to depose top-level executives to find out their level of involvement, and what they know about the product in question.
The aforementioned case of West Virginia vs. McKesson centers around the widespread distribution of opioids to pharmacies in sparsely populated regions of West Virginia, which is believed to be one of the major contributing factors to the current opioid crisis in the Mountain State. In this case, attorneys for the state have scheduled depositions with McKesson’s West Virginia sales representative Tim Ashworth, and five of the company’s top executives, including CEO John Hammergren.
The state’s attorneys hope to answer questions such as what the company’s process is for flagging “suspicious” orders from pharmacies, whether or not bonuses or commissions were paid to employees for increased sales of opioids, and if the company was aware of criminal investigations of certain pharmacies that ordered their products. While some of their questions could be answered by the company’s West Virginia sales representative, it is important to speak with top executives to obtain more complete information, and to gain a thorough understanding of the company’s culture, policies, and practices.
When Can a Witness be Shielded from a Deposition?
Depositions can be stressful and time-consuming for a deponent, so naturally, most witnesses are not overly enthusiastic about being deposed. For an average witness, there is usually no way out of a deposition once they have been served notice. On the other hand, those with “important” positions often try to invoke the apex doctrine to be excused from this process.
Under the apex doctrine, a CEO or another top-level executive (i.e., someone who is at the “apex” of an organization) may try to claim that they cannot be deposed because they have no unique, first-hand knowledge of the facts of the case, the deposition will take up too much of their time, and there are other ways for the plaintiff to obtain the information they are seeking. This doctrine presumes that deposing a high-level executive is an unnecessary and abusive tactic designed to harass the defendant and force them into a settlement. Courts have been split on when the apex doctrine is appropriate, and it is typically decided on a case-by-case basis.
In the case of West Virginia vs. McKesson, lawyers for McKesson recently invoked the principles of the apex doctrine in a motion filed in Boone County Circuit Court to shield their CEO John Hammergren from being deposed. Hammergren stated in a sworn affidavit that he has “no first-hand knowledge” of the company’s prescription opioid shipments to West Virginia pharmacies, and that he does not manage their prescription drug order tracking system. The company lawyers also argued that since McKesson is facing 500 similar opioid-related lawsuits, being deposed in this case would “open the door” to numerous other depositions, which would take up far too much of his time.
What Happens after a Deposition?
After the deposition is completed, a transcript is prepared by the court reporter/stenographer. Once the transcript is produced, copies are eventually sent to each side. The parties are then able to review the document for any inaccuracies. If the court reporter misquoted the deponent, or the deponent misstated something, this is the time to try to correct the record.
As mentioned previously, a deposition is not a court hearing, it is part of the discovery process. After discovery has been completed, this is when a court date is usually set. The deposition, which is taken under oath, may be used as evidence at trial, and the deponent may be confronted by the opposing legal counsel about statements made during the deposition.
It is important to note that many civil lawsuits do not end up at trial. In many cases, settlement talks begin after discovery is complete. Parties may refer to the deposition during these talks as they negotiate and advocate for their position. Oftentimes, a settlement ends up being reached that allows the parties to avoid litigation. But if the case makes it to trial and the deponent takes the witness stand, he/she should be ready to answer questions about statements made during the deposition.
In the end, a deposition is an extremely valuable discovery tool, helping attorneys gather information (testimony, evidence, data) that will be used to structure their case as they prepare for trial.