Failure to Prepare a 30(b)(6) witness

A party may take the deposition of an individual who has knowledge relevant to the lawsuit.  In addition, a party may take the deposition of a company.  In a company deposition, known as a 30(b)(6) deposition in federal court (and sometimes referred to as a person most knowledgeable or qualified deposition in state court), a party identifies the topics that it wants the opposing party’s company witness to discuss, and then the witness testifies on behalf of the entire company and speaks for the company.
  
Rule 30(b)(6) provides that persons designated to represent an organization “shall testify as to matters known or reasonably available to the organization.”  This means that an organization must “produce one or more 30(b)(6) witnesses who [are] thoroughly educated about the noticed deposition topics with respect to any and all facts known to [the organization] or its counsel.”  If the persons designated by the corporation do not possess personal knowledge of the matters set forth in the deposition notice, then the corporation is obligated to prepare the designees so that they may give knowledgeable and binding answers for the corporation.   The corporation and its counsel have a duty to prepare a witness on behalf of the corporation.
 
Failing to prepare any type of witness, whether the witness is testifying as a company witness or as an individual, evinces a lack of diligence and, thus, violates the rules of professional conduct.9  Also, failure to prepare a witness can result in sanctions against the attorney and dreadful deposition testimony from the witness that can negatively affect a client’s case. 
 
In Int’l Ass’n of Machinists, Int’l Ass’n of Machinists & Aerospace Workers v. Werner-Masuda, 390 F. Supp. 2d 479, 487 (D. Md. 2005) the first witness designated as the 30(b)(6) witness was, in the words of the district court,“woefully unprepared.”  He “had no knowledge at all regarding any of the subjects listed on the 30(b)(6) notice, and, in fact, had not even seen the notice until it was shown to him during the deposition.”  In addition, “he personally had undertaken no steps to prepare for the deposition and [the organization] and its counsel had not made any effort to prepare him” except for one bit of advice – they “advis[ed] him to tell the truth.”  Moreover, this witness lacked basic knowledge regarding the organization as he was only a part-time volunteer during a period of time that was irrelevant to the case.  As a result, the organization and its counsel were sanctioned in the amount of $7,947.30.18

Trialpad

Over the holiday, I downloaded Trialpad for IPad.  The website is located here.  So far, this is one app that lives up to the hype.  It has features to put exhibit stickers on documents and link into an overhead projector with a variety of other features.  It is certainly cheaper than most other trial presentation software.

Alimony Deficit

On Tuesday, the Mississippi Court of Appeals decided Layton v. Layton located here.  The Court did a detailed discussion of what constitutes a deficit for alimony.  The Court found as follows:

"It  is  true that alimony should not be considered unless the property division results in a “deficit” to one spouse.  See, e.g.,  Seymour v. Seymour, 960 So. 2d 513, 519 (¶16) (Miss. Ct. App. 2006).   But the “deficit” to which our cases refer is not one spouse’s receipt of assets with a lesser net  value than  those  allocated  to  the  other  spouse.    Rather,  the  question  is  whether  the  spouse seeking  alimony  is  left  “with  a  deficit  with  respect  to  having  sufficient  resources  and  assets to  meet his  or  her needs  and  living  expenses.”    Jackson  v. Jackson,  114  So.  3d  768,  777 (¶22) (Miss. Ct. App. 2013) (emphasis added); accord,  e.g.,  Pecanty  v. Pecanty, 97 So. 3d 1263, 1266 (¶¶19-20) (Miss. Ct. App. 2012); Deborah H. Bell, Mississippi Family Law § 9.01[4][b], at 235(2005).

Thus, an unequal division of property does not preclude an award of alimony when the  chancellor  finds  that  alimony  is  warranted based  on  an  analysis  of  the  Armstrong  factors, including  the  parties’  respective  incomes  and  expenses,  fault,  and  the  length  of  the  marriage. See  Pierce  v.  Pierce,  132  So.  3d  553,  565  (¶30)  (Miss.  2014)  (“[T]he  chancellor  must consider  the  [Armstrong]  factors  in  determining  whether alimony  should  be  awarded .  .  .  .”).  For example,  on comparable facts, we affirmed an alimony  award even though the division of  marital  property  greatly  favored  the  wife,  the  husband’s  income  was  significantly  less  than John’s, and the wife’s income was slightly  more than Amanda’s.   See Seymour,  960   So. 2d at  519-20  (¶¶13-17).    The  primary  financial  consideration  was  not  that  the  wife  was  awarded more  valuable  marital  property  but  that,  despite  “her  share  of  the  marital  property,”  her  assets and post-divorce income were insufficient to cover her basic monthly expenses.  See id. at 520."

Marital vs. Estate Property

I have been getting a lot of litigation recently over marital vs. estate property.  I have been unable to find any case on point.  The best I have been able to come up with is that if the property is commonly used by both parties during the marriage, it is arguably martial.  If the property is of a more personal natural (i.e. jewelry, guns, etc.), it is the property of the deceased's estate at death.   This is an area some caselaw will develop on at some point.

Uncooperative Deposition Witness

Misconduct occurs by both witnesses and opposing counsel in depositions.  What is to be done with the abusive and unresponsive witness?  To paraphrase the court in GMAC Bank v. HTFC Corp., 248 F.R.D. 182, 184 (E.D. Pa. 2008), uncivil conduct by a witness at a deposition is “less discussed . . . but nonetheless just as pernicious” as misconduct by counsel.  The GMAC Bank case addresses “the duty of counsel who is confronted by uncivil conduct by his own witness.”  Id.  The discussion is too lengthy to quote, but here is a sample of what happened in the case.  The deposition was twelve hours long.  In the deposition, the ‘f-word’ “and variants thereof” were used by the witness no fewer than 73 times.  Id. at 187.  The court’s “impression” was that the “language was chosen solely to intimidate and demean” the examining lawyer.  Id.  According to the court, this was “confirmed” by the witness’s “repeated references to himself as ‘the professor’ and a ‘doctor of law,’ and repeated expressions of his belief that [the examining lawyer was] a ‘joke’ and a ‘[f___ing] idiot.”  Id. at 187.  

In light of these fact, the court imposed sanctions.  In a thorough and analytical opinion, the court required that the witness be deposed again, under the supervision of a magistrate judge.  Id. at 193.  The witness and his lawyer were held jointly and severally liable for the examining party’s fees and expenses incurred in presenting the motion, and in preparing for and conducting “the portion of the deposition sessions . . . that was frustrated by” the witness’s conduct.  Id. at 194.  In sanctioning the defending lawyer, the court was critical of the fact that he (according to the opinion) “sat idly by,”  “incorrectly directed the witness not to answer,” and was observed (on at least one occasion) “chuckling at [the witness’s] abusive behavior toward [examining] counsel . . . .”  Id. at 195 & n.17.  “An attorney faced with such a client cannot . . .  simply sit back, allow the deposition to proceed, and then blame the client when the deposition process breaks down.”  Id. at 195 (citation omitted).

In Loco v. Natural Parent

The Mississippi Court of Appeals decided Welton v. Westmoreland yesterday located here.  This case added to the confusion of the natural parent presumption vs. an in loco parentis parent.  In this case, without finding the natural mother unfit, the Court of Appeals affirmed awarding custody to the step-parent who had raised the minor child as his own.  This appears to conflict with In re Waites, 152 So. 3d 306 (Miss. 2014) as the dissent noted.  I would expect this case to go up on cert.   The best distinction I can figure out reading Waites and Welton together is this:  (1) If both natural parents in the picture - must prove unfitness or other conduct warranting third party custody, (2) If one natural parent in the picture only and other parent is in loco parentis, equal footing potentially depending on the facts. This is a very confusing area where I have a brief of my own due soon.    

Bound by Albright

I heard an interesting comment by a chancellor recently regarding Albright.  The general idea was that they are not bound by Albright in a custody analysis.  It does not sound right but it is correct.  The best interest of the child is what governs custody.  Albright is a guide but the court can generally weigh those factors in whatever manner they see fit to find the best interest of the child.  I am aware of at least one or two unreported cases where a parent was only favored over the other parent on one or two Albright factors but ended up with custody due to the weight given those factors. 

Dissipation of Assets

On Thursday, the Mississippi Supreme Court decided Burnham v. Burnham located here.  In this case, the Court reversed a finding by the chancellor that assets were dissipated when it was found that the proceeds of a sale were used to pay off marital debt.  To me, what this case indicates is that a dissipation actually requires a complete loss of funds as opposed to a mere sale.  As long as it can be traced as to where the funds went and there was some benefit to it, this is probably not dissipation. 

Step Parent Visitation

The Mississippi Court of Appeals decided Neely v. Welch yesterday located here.  The issue in the case was whether a step parent had the right to visitation.  The Court of Appeals found that with the natural parent presumption still intact with the natural parent, the step parent had no rights.  The Court of Appeals seemed to be sympathetic to the step parent, but found no legal right for him to have visitation.  This is one area the legislature needs to look at.  There would have to be several items in the statute to survive a constitutional challenge though. 

Wrongful Conduct and Attorney's Fees

Attorney's fees in Chancery Court in Mississippi can be awarded due to wrongful conduct.  This is normally in the context of contempt or failure to comply with discovery orders.   I am arguing a case later today dealing with the filing of a fraudulent affidavit in order to seize a tax refund.  It is arguably contempt due to a prior court order and also wrongful conduct which should result in an award of attorney's fees.  The area dealing with wrongful conduct is still developing in legal theory and very fact sensitive.  The most successful application seems to be where conduct is arguably contempt since the conduct tries to circumvent a court order. 

Same-Sex Divorce Ruling

The Mississippi Supreme Court issued its opinion in Czekala-Chatham v. State of Mississippi yesterday dealing with whether Mississippi Courts have the authority to grant a same-sex couple a divorce.  A copy of the opinion is located here.  The Court ruled that based on the recent U.S. Supreme Court holding that the divorce which had been dismissed by the trial court can go forward now.  I was the trial attorney on this case and wrote the brief.  There is a very interesting and detailed dissent by four of the justices dealing with whether the U.S. Supreme Court exceeded their authority and crossed over into legislative functions in the decision. 

Speaking Objections in Deposition

The Federal Rules of Civil Procedure  require that objections raised during a deposition be “nonargumentative” and “nonsuggestive.”  FED. R. CIV. P. 30(c)(2).  The defending lawyer is entitled to preserve the objection on the record, but he is not entitled to get in your way.  “Nonargumentative” means just that— no argument.  Nonsuggestive means that he cannot suggest an answer to the witness.  Courts today are generally on board with these concepts.  See Specht v. Google, Inc., 268 F.R.D. 596, 598 (N.D. Ill. 2010) (“Objections that are argumentative or that suggest an answer to a witness are called ‘speaking objections’ and are improper under Rule 30(c)(2).”); Amari Co. v. Burgess, 2009 WL 1269704, at *1 (N.D. Ill. Apr. 30, 2009) (“The gist of this rule is simple: unless the attorney claims the question calls for privileged information, the attorney must only state his objection and allow the client to answer.”); JSR Micro, Inc. v. QBE Ins. Corp., 2010 WL 1338152, at *10 (N.D. Cal. Apr. 5, 2010) (“Rule 30(c)(2) makes very plain that these objections were not a proper basis for an instruction not to answer.  Nor were they stated in a nonargumentative and nonsuggestive manner.”).

The form in which objections must be stated varies somewhat from court to court.  Many courts limit defending parties to simple, declarative statements, such as ‘objection, form’ unless  the examiner asks for the basis.  See Turner v. Glock, Inc., 2004 WL 5511620, at *1 (E.D. Tex. Mar. 29, 2004) (“As stated in Local Rule CV–30 . . . objections to questions during an oral deposition must be limited to ‘Objection, leading’ and ‘Objection, form.’”); Tuerkes-Beckers, Inc. v. New Castle Assocs., 158 F.R.D. 573, 575 (D. Del. 1993) (“Objections as to the form of the question should be limited to the words ‘Objection, form.’ All other objections should be limited to the word ‘Objection’ and a brief identification of the ground, preferably in no more than three words.”).  Some courts permit a one- or two-word explanation of the basis, at the time of form objection, such as: “Objection, compound.”   See Abu Dhabi Commercial Bank v. Morgan Stanley & Co., 2011 WL 4526141, at *8 (S.D.N.Y. Sept. 21, 2011) (“‘Objections should generally be limited to the statement “objection as to form and the basis for such objection, i.e., compound question . . . .”’” (quoting the Honorable Shira Scheindlin’s Suggested Rule of Discovery Practice)).

Discovery of Deposition Discussions

Once a deposition begins, the only discussions the attorney should have with the client are whether or not to assert privilege.  Other than that, any discussions the attorney has with the client are discoverable.  An article dealing with this is located here.  The theory is to keep an attorney from woodshedding his client during the deposition to change his testimony.  

Verdict of Interest

The Mississippi Supreme Court affirmed a $30 million bench verdict on Thursday in Sandoz v. State of Mississippi. Here is Court’s the opinion.  The case dealt with the overpricing of medications and Medicaid reimbursement.