Entity Designee Depositions, MAJ Trial Reporter (Spring 2017), Part 2

Example 3: Nursing Home Negligence

Here is an example of a nursing home fall case, in which the plaintiff’s decedent fell in his room, sustaining a severe head injury. The purpose of the corporate designee deposition was to investigate the actions of the Defendant in setting and following policies and procedures on patient safety and fall prevention.

The Notice: Plaintiffs request a corporate designee or designees to testify concerning the following matters. Unless otherwise specified, all requests refer to facts, conditions, and circumstances in existence as of January 1, 2015, and from that time to the present.

1. The content, effective date, and applicability of any rules, regulations, policies, procedures or protocols of this Defendant which were in effect as of the year 2015 which in any way pertain to:
   1. Fall risk assessments;
   2. Use of fall risk prevention techniques or equipment;
   3. Fall prevention;
   4. Investigations of falls;
   5. Complying with physician orders;
   6. Developing patient plan of care;
   7. Complying with patient plan of care;
   8. Use of matts to protect patients against fall injuries;
   9. Use of chair alarms;
   10. Use of bed alarms; and
   11. Monitoring of patients for falls.
2. An individual familiar with any rules, regulations, policies, procedures or protocols developed or implemented by this Defendant in any way detailing, defining or otherwise pertaining to the generation of any “incident,” “occurrence,” “salient event” or similar reports or communications, by whatever name known, which were in effect as of the year 2015.
3. An individual familiar with the existence and content of any “incident,” “occurrence,” “salient event,” or similar report, by whatever name known, which in any way pertains or refers to any medical care or treatment provided to the Plaintiffs’ decedent, during his admission to XYZ Defendant.
4. An individual familiar with the course and content of any education and training provided by this Defendant, and/or by anyone on its behalf, to its agents, servants and/or employees, including members of its medical and nursing staff, from the year 2010, through and including the year 2015, in any way pertaining to:
   1. Fall risk assessments;
   2. Use of fall risk prevention techniques or equipment;
   3. Fall prevention;
   4. Investigations of falls;
   5. Complying with physician orders;
   6. Developing patient plan of care;
   7. Complying with patient plan of care;
   8. Use of matts to protect patients against fall injuries;
   9. Use of chair alarms;
   10. Use of bed alarms; and
   11. Monitoring of patients for falls.
5. All documents that constitute, refer or relate to any employment or other contractual relationship with regard to maintenance and repair of chair alarms, bed alarms, and fall mats.
6. All medical records, reports and other documentation authored, produced, written, ordered or generated by these Defendants, and/or their agents, servants and/or employees, in any way pertaining or referring to any examination, diagnosis, care or treatment of the Plaintiffs’ decedent.

SCHEDULE OF DOCUMENTS

The Defendant’s designee shall bring to the deposition the following documents:

1. All documents and other material things previously requested from this Defendant which have yet to be provided.
2. The most recent Curriculum Vitae of each designee.
3. All documents and other material things reviewed by any designee of this Defendant in preparation for his or her testimony.
4. Any and all policies, procedures or protocols of this Defendant that were in effect as of the year 2015 which in any way pertain to:
   1. Fall risk assessments;
   2. Use of fall risk prevention techniques or equipment;
   3. Fall prevention;
   4. Investigations of falls;
   5. Complying with physician orders;
   6. Developing patient plan of care;
   7. Complying with patient plan of care;
   8. Use of mats to protect patients against fall injuries;
   9. Use of chair alarms;
   10. Use of bed alarms; and
   11. Monitoring of patients for falls.
5. All documents that constitute, refer or relate to any employment or other contractual relationship between you and Nurse A, Nurse B, and Physician C.
6. All medical records, reports and other documentation authored, produced, written, ordered or generated by this Defendant, and/or their agents, servants and/or employees, in any way pertaining or referring to any examination, diagnosis, care or treatment of the Plaintiffs’ decedent.
7. All documents, including, but not limited to, incident reports, accident reports, risk management reports, ambulance reports, etc., authored, produced, written, ordered or generated by the Defendant, and/or its agents, servants and/or employees, and/or by any other individual or entity, in any way relating or pertaining to the medical diagnosis, care and/or treatment of the Plaintiffs’ decedent and/or the occurrence in question.
8. All electronically generated or stored information or data, including all electronic mail communications, memoranda or transcriptions of telephone communications, medical records, “electronic” medical records, and the Defendant’s complete computer database in any way relating or pertaining to the Plaintiffs’ decedent, and/or the occurrence in question.
9. All bills, invoices and other documentation in any way pertaining or referring to any medical care or treatment provided to the Plaintiffs’ decedent, by these Defendants, their agents, servants and/or employees, or any other health care provider.
10. All correspondence, communications and other documents and written materials between the Defendant/Healthcare Provider, its agents, servants and/or employees, and any other individual or entity, in any way pertaining or referring to any medical care or treatment provided to the Plaintiffs’ decedent, the alleged injuries, damages and losses complained of by the Plaintiffs in the Complaint, and/or the instant litigation.
11. All statements or transcripts of testimony in any way pertaining to the alleged incident in question which are in the custody, possession or control of the Defendant, including any such statements made by the Plaintiffs’ decedent.
12. All photographs, motion pictures, videotapes, surveillance tapes or other visual representations of Plaintiffs’ decedent.
13. All documents that constitute, refer or relate to each and every liability, indemnity or other insurance agreement or policy (including any excess or umbrella policies) that insures you against liability for damages arising from the occurrence to which reference is made in the Complaint or that provides you with a defense to the claims set forth in the Complaint.
14. All documents that constitute, refer or relate to any signed or written statements and/or recordings or oral statements that have been given to you with regard to the occurrence to which reference is made in the Complaint.
15. If you contend that the Plaintiffs’ decedent’s injuries and/or damages were caused by or contributed to by the negligence of anyone not a party to this lawsuit, produce all documents that set forth, describe or relate to the facts on which you rely in support of the said contention.
16. All documents that constitute, describe, or relate to any admissions or declarations against interest that you contend have been made by the Plaintiffs’ decedent.
17. If you contend that the Plaintiffs’ decedent, was not compliant with any aspect of his medical care, all documents that describe, set forth or relate to all facts on which you rely in support of said contention.
18. Identify and produce copies of all Medical Staff By-Laws, Rules and Regulations of the Medical Staff, and similar documents, by whatever name known, promulgated or utilized at XYZ for the year 2015.
19. All documents not heretofore produced that were described and/or referred to by you in answer to Plaintiff’s Interrogatories.

The Deposition:

Ask the designee about their own employment background with the defendant.

Ask what have they done to prepare for the deposition.

Ask what have they have done to gather the policies and procedures and other documents responsive to the deposition notice.

Confirm that Defendant had the expectation that their staff would follow the policies and procedures.

Confirm that the reason they have policies and procedures is for the safety of their patients.

Ask how do they know the policies and procedures were actually in effect at the time of the fall at issue in this case.

Ask where the policies and procedures are kept.

Ask how the Defendant tested their staff on their understanding of the policies and procedures.

Ask what training had been done before the fall.

Ask where that training was done.

Ask what evidence exists that they kept their staff informed on the policies and procedures that the staff was expected to follow (in the time leading up to the fall).

If they didn’t bring such things to the deposition, take a break and ask them to go get it.

Do Not Be Intimidated By An Impressive Entity Designee

In a house fire case I tried for a week in the Circuit Court for Howard County, the builder, a large national company, had an entity designee testify in a way that made it appear to be a very caring company. He was smooth, well spoken and made an excellent appearance…right up until cross-examination, when he answered all of the following questions in the negative: Did you visit the fire scene? Did you check on the plaintiffs? …At any time after the fire? Did your company offer them any financial support to help them get back on their feet? Did it buy anything to replace what they had lost in the fire?

A Few Final Thoughts

Most importantly, as you prepare for these depositions and question entity deponents, try to show that the defendant made as many bad choices as possible. With each bad choice you spotlight at trial, a jury will be less likely to excuse the defendant’s conduct. Be mindful that entity designee depositions can also be used with non-party deponents such as IT vendors (describing the electronic systems in your party opponent’s business), accountants, risk management companies, or independent investigators. For further information, I recommend Mark Kosieradzki’s 2016 book, 30(b)(6). Having read online its table of contents and first chapter, I expect it to become “the bible” on this topic. It can be found here: https://www.trialguides.com/product/30b6/.

Biography

Eric N. Stravitz owns the Stravitz Law Firm, P.C., at which he handles personal injury and medical malpractice lawsuits and trials in federal and state-level courts across the region. A member of the District of Columbia and Maryland Bars, Mr. Stravitz handles Virginia cases pro hac vice. For five years he taught Trial Advocacy as an Adjunct Professor at The George Washington University Law School. Mr. Stravitz serves on the Board of Governors of TLA-DC. He is also member of MAJ and AAJ, and has served as a member of MAJ’s Trial Reporter Editorial Board since 2000. Mr. Stravitz graduated magna cum laude from the State University of New York at Albany in 1988, and from The George Washington University School of Law in 1991.

Back to Entity Designee Depositions, MAJ Trial Reporter (Spring 2017), Part 1

Endnotes

ⁱMs. Flynn wrote the Nursing Home Negligence Case example and provided other valuable suggestions.

ⁱⁱSee FRCP 30(a)(2)(A)(i), which, without consent, currently requires leave of court to take more than 10 depositions.

ⁱⁱⁱFRCP 30(b)(6) 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. This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules.

^ivRule 2-412(d) Designation of person to testify for an organization. A party may in a notice and subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. The organization so named shall designate one or more officers, directors, managing agents, or other persons who will testify on its behalf regarding the matters described and may set forth the matters on which each person designated will testify. A subpoena shall advise a nonparty organization of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization. (Emphasis in original.)

^vSee Local Civil Rule 104(8) of the U.S. Dist. Ct. for the Dist. of Md. or Maryland Rule 2-432.

^viFor methods of combating obstruction at depositions, see The Multi-Jurisdictional Practitioner…Looks at Depositions in the District of Columbia, Maryland, and Virginia. DC Trial, Volume IX, No. 4 (Fall 2009), which has been reprinted at this link: https://www.stravitzlawfirm.com/articles/featured-articles-by-eric-stravitz/the-multi-jurisdictional-practitioner-looks-at-depositions-in-th/.

For suggestions on dealing with deponents who repeatedly answer “I don’t know” to questions to which they ought to have a substantive answer, see Quick Tips, Exhausting Deponent’s Knowledge, DC Trial, Vol. XII, No. 4 (Winter 2014), which has been reprinted at this link: https://www.stravitzlawfirm.com/articles/featured-articles-by-eric-stravitz/quick-tips-exhausting-deponent-s-knowledge-dc-trial-vol-no-201/.

^viiSee FRCP 30(b)(2) and 34 and Maryland Rules 2-412(c) and 2-422.

^viiiIf I am trying to discover whether relevant procedures, policies, or protocols exist, I will often ask about the present day. If they exist at the time of the deposition, I will work backwards to find out if they existed on the date of the event that damaged my client.

^ixRule 30(b)(6) is designed “to avoid the possibility that several officers and managing agents might be deposed in turn, with each disclaiming personal knowledge of facts that are clearly known to persons within the organization and thus to the organization itself. Therefore, the deponent must make a conscientious good-faith endeavor to designate the persons having knowledge of the matters sought by the party noticing the deposition and to prepare those persons in order that they can answer fully, completely, unevasively, the questions posed as to the relevant subject matters. The duty to present and prepare a Rule 30(b)(6) designee goes beyond matters personally known to that designee or to matters in which that designee was personally involved. The deponent must prepare the designee to the extent matters are reasonably available, whether from documents, past employees, or other sources. [¶][A] Rule 30(b)(6) designee does not give his personal opinions, but presents the corporation’s position on the topic. When a corporation produces an employee pursuant to a rule 30(b)(6) notice, it represents that the employee has the authority to speak on behalf of the corporation with respect to the areas within the notice of deposition. This extends not only to facts, but also to subjective beliefs and opinions. If it becomes obvious that the deposition representative designated by the corporation is deficient, the corporation is obligated to provide a substitute. [¶] If the designated “agent is not knowledgeable about relevant facts, and the principal has failed to designate an available, knowledgeable, and readily identifiable witness, then the appearance is, for all practical purposes, no appearance at all.” (Internal quotes and citations omitted.)

See also, Reilly v. NatWest Mkts. Grp., 181 F.3d 253, 268 (2d Cir. 1999)(when party does not comply, court may impose various sanctions, including preclusion of evidence).

^x“[A]n organization’s deposition testimony is ‘binding’ in the sense that whatever its deponent says can be used against the organization. But Rule 30(b)(6) testimony is not ‘binding’ in the sense that it precludes the deponent from correcting, explaining, or supplementing its statements. Nothing in the text of the Rule or in the Advisory Committee notes indicates that the Rule is meant to bind a corporate party irrevocably to whatever its designee happens to recollect during her testimony. Of course, a party whose testimony ‘evolves’ risks its credibility, but that does not mean it has violated the [FRCPs]. [¶] [A] Rule 30(b)(6) deponent may also amend and expand its legal conclusions. Courts have held repeatedly that a party is ‘entitled to produce contrary evidence’ that contradicts legal interpretations offered during a deposition. [¶] Some deponents will, of course, try to abuse Rule 30(b)(6) by intentionally offering misleading or incomplete responses, then seeking to ‘correct’ them by offering new evidence after discovery. Appropriate remedies are available for such situations.”

^xiI generally bold defined terms.