Every product liability defense attorney has heard a phrase like this at the end of a deposition of a corporate representative: “This witness did not have adequate knowledge; this deposition is not over. I (plaintiff’s counsel) reserve my right to pursue further depositions of company representatives…” and so on.
When it comes to depositions, discovery certainly is asymmetrical. Plaintiffs can appear at depositions, as can their spouses and family members. Beyond them, non-party witnesses related to the fact pattern of the case may also be involved. When it comes to producing corporate witnesses for purposes of a deposition, it is not a simple matter. A corporation can not easily identify one specific person as the one “most knowledgeable” about a topic or list of topics created by a Plaintiffs’ attorney. Plaintiffs’ attorneys demand that that defendants address many topics, and they routinely ask for multiple corporate representatives to appear for depositions.
Of course, all defense attorneys do their best to work out discovery issues with plaintiffs’ attorneys and to communicate about topics and designated corporate witnesses who will address those topics. Nevertheless, at the end of each deposition, it is common for plaintiffs’ attorneys to claim that they are not satisfied. Plaintiffs’ attorneys usually have an incentive to do this. They are motivated to discover further information about product details and company conduct related to the design and manufacture of a product. They also have ulterior motives: to burden defendants and to leverage settlement negotiations.
Diligent practitioners might seek the intervention of the courts if they are faced with a deposition notice that contains many topics. Some attorneys may seek a protective order to limit the number of depositions and to transfer the costs of depositions to plaintiffs. These matters are within the discretion of the judge who handles discovery. Other defendants may attempt to memorialize detailed agreements with plaintiffs’ attorneys about witnesses produced and the scope of their testimony. These agreements become the focal point if plaintiffs claim that they are unsatisfied with the witness’s basis of knowledge.
These are straightforward and truthful methods. Nevertheless, when dealing with foreign defendants, there are cultural differences that may often be taken out of context by plaintiffs’ attorneys in order to assert that a witness did not have adequate knowledge. The idea of a deposition in a US lawsuit is that one person may testify based upon documents reviewed, business records and information provided by others in his company. But, in some foreign countries, this method is counter-cultural. In some countries, product design engineers, production engineers and quality control teams employ corroborative approaches. There may not be an individual person who makes a final decision. There are team decisions. Also, employees transfer from department to department every several years. Employees are often encouraged to be generalists rather than specialists. With this cultural background, a company witness may express some reluctance to answer definitively on a topic. The defense attorney who is defending a foreign witness should take caution to make sure that this is not categorized as a lack of adequate knowledge. Foreign witnesses may attempt to express that other company employees also have knowledge about deposition topics. Nevertheless, these witnesses are certainly not denying their own first-hand knowledge.
One also has to keep in mind that foreign witnesses may testify through an interpreter. The translation of foreign languages involves issues that are not always obvious to those without experience in the foreign culture. For example, there are different cultural approaches when answering a negative question. In the Western Hemisphere, if I ask “Do you mind if I smoke?” you might answer “No.” You probably mean to say, “No, you don’t mind if I smoke.” In the Eastern Hemisphere, your answer might be “Yes,” but your meaning might be “Yes, please feel free to smoke.” There are many similar examples.
In addition to diligent efforts to come to an agreement regarding the scope of the deposition of a witness’s testimony, one should also consider the cultural differences raised by foreign witnesses. One specifically should make sure that during the testimony these witnesses have a full and fair opportunity to explain their positions and bases of knowledge. It may be helpful to prepare the witness’s resume and to volunteer it as an exhibit in advance. In some circumstances it may even be helpful to ask your own questions of the witness. Everyone wants an accurate record.
As in previous articles, we once again encourage our readers to share any related experience and comments.