Step One: Know the Case
The first and most obvious step to ensure you identify the right case-specific deponents is to know your case. This refers, first, to the legal claims and defenses alleged. You should know every cause of action the plaintiff has asserted and the required elements of each. You should know your client’s defenses—those that were alleged in the answer as well as any others that may, through discovery, become cognizable. In personal-injury mass torts, state law most often applies. This means that you should avoid relying on your understanding of general principles and instead research the actual law of the applicable jurisdiction. In federal court, remember that the choice-of-law rule that applies is ordinarily that of the state in which the federal court sits, Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 494–96 (1941); but where cases are transferred for multidistrict litigation pursuant to 28 U.S.C. § 1407, or for convenience under 28 U.S.C. § 1404(a), the rule that applies is typically that which the transferor court (the court from which the case was transferred) would apply. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 244 n.8 (1981) (citing Van Dusen v. Barrack, 376 U.S. 612 (1946)); In re Korean Air Lines Disaster, 932 F.2d 1475, 1496 (D.C. Cir. 1991).
In addition to knowing the claims and defenses at issue, you also must gather (through written discovery) and know the available facts of your case. This includes details of, among other things, the injury-causing event, the injury itself, its alleged impact on the plaintiff, and any preexisting conditions, plaintiff behavior, third-party behavior, or any other factor that could have potentially caused or contributed to the injury. You should evaluate these facts, from both your and your opponent’s perspective, to determine how they will, or can, satisfy (or undermine) the required elements of the alleged claims and defenses.
Step Two: Evaluate the Pros and Cons of Each Potential Deponent
Armed with this case-specific information, you should identify a list of witnesses with knowledge of the critical facts. There is no perfect formula for this process, because every case is different, but you should use a broad brush and “rule in” any witness with knowledge of facts that touch on an element of any claim or defense. This includes, at minimum, witnesses with knowledge or opinions relating to the injury-causing event, the injury itself, its alleged impact on the plaintiff’s life, causation, and alternative causation. In pharmaceutical and medical-device cases, health-care providers who had any role in the recommendation, prescription, discontinuation, implantation, or revision of the product at issue should be considered. Moreover, if a plaintiff’s own habits or behavior are suspected of contributing to the injury, you should consider deposing family members or friends who would have knowledge of the relevant conduct and who would be less likely to be prepped by counsel and therefore possibly more candid in describing the plaintiff’s behavior. Again, every case is different, and you should customize your list to the elements of the claims and defenses applicable to your case.
You likely will not be able to depose every witness you identify in this process, but you should start with a broad universe and narrow that universe after evaluating the pros and cons of each potential deponent. Consider what each witness brings to the table: how his or her testimony will help your case, and how it will, or may, help your opponent’s. And think long and hard about whether the good outweighs the bad. This is a critical step and one that should not be rushed. Ultimately, you should develop a final list of deponents that will provide the testimony that most benefits your case. To achieve this end, there are several considerations, discussed below, that you should remember during the evaluation process.
Know your client’s objectives. Foremost, you need to know your client’s objectives in the litigation. Is there an intention of reaching an early global settlement? Or is the client intent on fighting every case, tooth and nail? Does the client want to maximize its chances for case-specific summary judgment at all costs? Or does it want to obtain full discovery of all opinions and facts, from every witness who could possibly play a role at trial? Not every mass-tort defendant has the same objectives, and it is important to know what your client’s objectives are because client objectives define what is important and should inform your cost-benefit evaluation of potential deponents.
For example, if the client wants to aggressively pursue dispositive motions, you may be willing to strategically avoid deposing certain witnesses where, even though their testimony may benefit you in some respects, there is a risk that it could preclude summary judgment. On the other hand, if your client is intent on going to trial, a broader approach to depositions may be in order, to eliminate any possible surprise opinions or testimony.
Work within your budget. If you are working on a lean case-specific discovery budget, you may need to construct a lean list of deponents. This can be a challenge in complex cases, but you can rank prospective deponents in order of priority and work with your supervising attorney or client to make the best strategic decision that can be accommodated.
Avoid deposing the same cast of characters in every case. The pressure to work efficiently and control costs in defending mass-tort cases is significant, but you should avoid uniformly deposing the same cast of characters in every case, absent the type of case-specific consideration discussed herein. In the drug-and-device context, for example, the physician(s) who prescribed or recommended the product at issue and the physician(s) who treated the alleged injury are frequently deposed. But every case is different, and there are instances when a uniform formula in selecting deponents can do your client a disservice. For example, there may be several different physicians who prescribed the product or treated the injury, and it may be infeasible or cost-prohibitive to depose them all. In addition, as discussed below, there may be instances where, for strategic reasons, it could be beneficial to forgo the deposition of a prescriber or treater, even though he or she is a critical witness to the case.
Factor in the burden of proof. A factor often overlooked in the process of identifying deponents is the burden of proof. Generally, the plaintiff shoulders the burden to prove his or her claims, but there are nuances to this burden, which vary by state, that can impact the cost-benefit analysis with regard to whether certain depositions are warranted.
For example, a failure-to-warn plaintiff must prove that the defendant’s inadequate warning caused his or her injury—that is, the plaintiff must establish that, if an adequate warning had been provided, he or she would have avoided the product or used it in a different manner, and that this change in the use of the product would have mitigated or avoided his or her injuries. Some states enforce this burden strictly, even at the dispositive-motion stage. Some states enforce it less strictly. And still others employ a so-called “heeding presumption,” which provides a rebuttable presumption that the plaintiff (or learned intermediary in the pharmaceutical or medical-device context) would have heeded an adequate warning, if it had been provided.
In certain circumstances, where the law adopted by the applicable jurisdiction or assigned judge favors a strict enforcement of the burden of proof, you may want to consider strategically forgoing—or, if permitted by the law of your jurisdiction, scheduling an informal interview in lieu of—the deposition of a witness whose testimony is critical to a required element of the plaintiff’s claims. Absent other testimony or evidence to support that critical element, the plaintiff may have insufficient record evidence to survive a well-drafted summary-judgment motion. Even beyond the potential for summary judgment, the absence of a deposition transcript can create opportunities for a directed verdict at trial, if the witness cannot be compelled to attend because he or she is unavailable or resides outside the subpoena power of the court.
In the drug and medical-device context, some defendants have had success with this strategy after forgoing the deposition of a prescribing or implanting physician. Under the learned-intermediary doctrine, a manufacturer’s duty to warn runs to the physician, not the ultimate consumer; and so the issue of whether the physician would have recommended the product, even if he or she had received a different warning, is an issue central to the plaintiff’s failure-to-warn allegations. Absent deposition testimony from the physician, or some other source of evidence, that a different warning would have changed his or her recommendation, some courts have dismissed failure-to-warn claims for want of proximate causation. See, e.g., Greaves v. Eli Lilly & Co., 503 F. App’x 70 (2d Cir. 2012); Thompson v. Zimmer, Inc., No. 11-CV-3099, 2013 U.S. Dist. LEXIS 137391 (D. Minn. Sept. 25, 2013); see also Drug & Medical Device Product Liability Deskbook § 2.05 (2004 & Supp. 2014) (providing comprehensive list of cases).
To be clear, while this strategy should be considered and has the potential to reap huge rewards, it is not without risk, and it is one that should be pursued only after careful due diligence. For example, if you are in a jurisdiction where a heeding presumption applies, or before a judge who leans to the liberal side, the plaintiff may survive summary judgment even without the subject testimony, and you may lose your opportunity to depose a critical witness in the case. If permitted by the law of your jurisdiction, you may be able to mitigate this lost opportunity through informal interviews with the would-be deponent. But regardless of your jurisdiction or judge, you will not be able to prevent similar ex parte contacts with plaintiff’s counsel and may ultimately face a surprise affidavit establishing facts necessary for the plaintiff to avoid summary judgment. Accordingly, before pursuing this strategy, you should carefully evaluate the law, your judge, and your opponent to assess the likelihood of success.
Step Three: Reconsider Your Decisions Often
It is important, once you have derived a final list of deponents and commenced the deposition process, to keep an open mind and remain flexible. Circumstances can change, and sometimes the deposition testimony of one witness will create (or eliminate) the need to depose another. Accordingly, you should reconsider your strategic decisions and recommended deponents often, to ensure that you are pursuing discovery in the manner most advantageous to your client.
While there is always a pressure to minimize costs and streamline decisions in mass-tort litigation, the process of selecting case-specific deponents is not an area to cut corners. Much like an effective performance at deposition, a defendant’s strategic selection of deponents in discovery can produce significant advantages at both the summary-judgment and trial stages. Moreover, for young lawyers in particular, a well-thought-out discovery plan can showcase your analytical skills and legal judgment, and demonstrate to senior partners and clients that you are ready for the next level.
Keywords: litigation, mass torts, deposition, young lawyer