When you’re going through a commercial dispute, there are many things about which you have to concern yourself. You have to balance the pursuit of victory in litigation with the continued operation of your business. One aspect of litigation that plays into both of these components is which of your officers or employees must testify in depositions related to your case. A case recently decided by the Second District Court of Appeal provides some important information in this area.
The underlying dispute was a contractual battle between a solar park and a provider of solar plants and photovoltaic systems. The provider allegedly loaned the park $6 million for the construction of a solar power plant in Gainesville. The solar park allegedly didn’t pay the money back, and the dispute ended up in litigation when the provider sued in 2012.
Two and a half years later, the case was still ongoing. The defendant served a notice upon the plaintiff in which the defendant sought to conduct a deposition of a corporate representative of the plaintiff. The plaintiff provided two representatives whom the defendant could depose.
After conducting those depositions, the defendant asked the court to approve another deposition of a third plaintiff employee whom the defendant named, and it asked that the employee be required to answer as a corporate representative. The trial court approved the defendant’s request.
The plaintiff appealed and won. The appeals court’s opinion overturning this trial court order offers some very helpful knowledge regarding what the law does (and does not) oblige you to do when a litigation opponent demands that you produce a corporate representative to testify in a deposition. First, the party seeking to conduct the deposition must notify the other side of the subject matter that will be covered in that deposition. Then, the side receiving the deposition demand must provide an individual whom it designates as the corporate representative to sit for the deposition.
The rules do not require you, if you’re on the receiving end of a request to depose a corporate representative, to name as your corporate representative the person in your entity who has the most knowledge of the subject matter. In fact, you can name someone who has no personal knowledge of that topic at all. As the appeals court pointed out, there may be very good reasons why you might not want to use the person with the most knowledge. For example, if the person with the most knowledge is an employee who doesn’t totally share the company’s position on the issues, you’d almost certainly want to choose somebody else. The rule only requires you to name a representative and prepare them to be deposed.
The rules also do not give the other side the right to select who the representative will be. The entity receiving the deposition request has the sole responsibility to choose the representative. If your business is in the position of seeking a deposition, and you want to depose a specific officer or employee, you may do so, but that “is subject to the circuit court’s discretion to issue a protective order.”
Some of the most important steps taken on the path to success in commercial litigation occur well before the trial even starts. To give yourself a strong chance of success, you need knowledgeable counsel on your side from the beginning. The diligent and skilled Florida commercial litigation attorneys at Stok Folk + Kon have many years of experience representing both plaintiffs and defendants in commercial litigation actions.
Contact us online or by calling (305) 935-4440 to schedule your consultation and find out how this firm can help you protect your interests.
More blog posts:
Deposing Your Opponent’s Corporate Officers in Your Florida Commercial Litigation, Florida Business Lawyers Blog, Feb. 3, 2017
Defending Against Summary Judgment Motions in Your Florida Commercial Litigation Case, Florida Business Lawyers Blog, July 8, 2016
Photo credit: Science Education Resource Center (SERC) at Carleton College, at Wikimedia Commons.