How to Strategize Corporate Depositions Under California Code

A corporate deposition presents opportunities and risks. The party taking the deposition must notice appropriate topics, select the best timing for the deposition, and decide how to use the deposition throughout discovery and trial. Conversely, the defending party must select and adequately prepare representatives to testify on its behalf.

Here are the “who,” “what,” “when,” and “how” of corporate depositions under the California Code of Civil Procedure, and key considerations for counsel taking and defending them.

Corporate Representatives

Counsel defending a corporate deposition must help their client select “who” will testify for the company. Picking a corporate representative involves, among other things, assessing whether to designate one or multiple representatives, how the representative will present as a witness and their personal knowledge, and whether to designate a third-party agent.

First, because a deposition notice will include several topics, counsel must consider how many individuals should represent the client. Counsel should evaluate the topics, categorize them by subject matter if appropriate, and discuss with the client whether it is beneficial for one individual to testify, or to instead divide the topics between multiple representatives.

Second, counsel should consider how the representative will present as a witness and their existing knowledge. Because the representative will be the face of the company throughout litigation and trial, counsel must evaluate which individuals have the time and capacity for adequate preparation, appear relatable and trustworthy, and can withstand comprehensive questioning from opposing counsel and the court.

Counsel should also assess who already has personal knowledge of the topics and to what degree. Individuals with personal knowledge will be easier to prepare than those without. However, ease of preparation should be balanced against the risk that a representative with substantial personal knowledge may inadvertently—and unhelpfully—testify about information that goes beyond the noticed topics.

Third, counsel should consider whether the client would be better served by designating a third-party agent. This may be an attractive option to avoid burdening a company’s directors, officers, and employees. For instance, a corporate party may select its counsel to testify, but doing so carries substantial risk.

Designating counsel as a representative could lead to inadvertent disclosure of privileged information or work product, waiver, and potential prejudice to trial strategy if counsel is called as a witness or the deposition played at trial. To avoid potential ethical and other problems, a corporate party typically shouldn’t proceed in this fashion unless it is unable to identify another suitable representative.

Counsel taking the deposition also has opportunities when it comes to the “who.” Although unable to select the witness, counsel may use the deposition to identify individuals with more knowledge of a topic.

For each topic, counsel should ask the representative if they are the most qualified on that subject and inquire as to whether any other individuals are involved in that area or would have more knowledge. Obtaining such information can help counsel identify percipient witnesses to be deposed. If the representative can’t provide satisfactory responses, counsel will have a ready list of other individuals who may be more appropriate to testify for the company.

Topics and Preparation

Counsel taking a corporate deposition has the fortunate position of setting “what” topics will be covered. Counsel must prepare and serve a deposition notice with the topics on which the opposing corporate party must be prepared to testify. Upon receipt of the notice, counsel defending the deposition has two primary responsibilities.

First, counsel must review the topics to determine which are within discovery’s scope and whether any should be narrowed or eliminated through written objections and conferral.

Second, counsel must help the representative adequately prepare to testify about the topics. This duty extends to “any information known or reasonably available to the deponent,” and typically includes, at a minimum, reviewing key company documents and meeting with company employees who have personal knowledge of the topics.

Failure to adequately prepare a representative can have adverse consequences, such as discovery motion practice, sanctions, or an additional deposition.

Length and Timing

The “when” of corporate depositions includes two components: length and timing.

Corporate depositions are exempt from time limits. A corporate party can thus be deposed more than once (albeit on different topics) and for hours on end. Counsel taking a corporate deposition should consider an early deposition on topics that facilitate discovery, such as a company’s organizational structure, witnesses who are document custodians or should be deposed, and a company’s electronic data storage and preservation systems. Even with an early deposition, counsel should plan to depose the corporate party again on substantive topics later, with the benefit of discovery and greater familiarity with the case.

Counsel defending the deposition should be wary of potential abuses of deposition length. All discovery is subject to California’s relevance, proportionality, and reasonableness requirements. If a corporate client is inundated with successive deposition notices, counsel should consider measures to limit scope and length, including through written objections or a protective order.

Use at Trial

Counsel must also consider “how” a corporate deposition may be used at trial. An adverse party may use a corporate deposition at trial “for any purpose.” Counsel taking a corporate deposition should thus pin down the corporate party’s legal positions and understanding of critical facts. That way, if later at trial the party attempts to change positions or assert different facts, the prior testimony can be used to raise credibility issues.

Counsel defending the deposition isn’t without recourse to this liberal rule. Counsel should incorporate the reality that the deposition will likely be played at trial into the representative’s preparation, including by advising the witness of this rule and the obligation to adequately prepare. Also, a corporate deposition remains subject to evidentiary rules. At trial, counsel should be prepared to object to the introduction of corporate deposition testimony that is hearsay, not relevant, or objectionable for other reasons.

In sum, corporate depositions require careful preparation and strategic execution. Counsel should therefore give thorough consideration to the “who,” “what,” “when,” and “how” of corporate depositions to best optimize their client’s position.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Collin Wedel and Lauren De Lilly are partners with Sidley Austin in Los Angeles.

Laz Pacheco is an associate with Sidley Austin in Los Angeles.

Rara Kang contributed to this article.

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