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July 27, 2022 Practice Points

Preparing a Corporate Representative for Deposition: Digital Due Diligence

Three steps to help you know any information available online that opposing counsel may use during the Rule 30(b)(6) deposition and your witness be prepared to field questions about that information.

By Adria Conklin and Lauren Grinder

Most lawyers are familiar with the unique nature of a corporate representative deposition. The corporative representative provides testimony pursuant to the requirements of Federal Rule of Civil Procedure 30(b)(6) (or the state’s analog of the same rule), and the corporate representative’s testimony can bind not only the witness but also the company. It is therefore imperative to carefully select and thoroughly prepare a Rule 30(b)(6) witness. Part of this process should include preparation related to the witness’s online presence. Corporate witnesses can be particularly likely to publish thought leadership in their industries, tweet about news relevant to their industries, network online through professional social media like LinkedIn, and provide interviews or panel discussions that are captured on industry websites. Consider the following three steps to make sure that you are aware of information available online that opposing counsel may use during the Rule 30(b)(6) deposition and that your witness is prepared to field questions about that information.

  1. Google your witness. At a minimum, run a Google search of the witness’s name plus the company’s name. Review the results to determine whether the witness has given statements to the media or published thought leadership on topics relevant to the litigation. If there are other industry specific sites where the witness may have material attributed to him or her, a search of that site is prudent.
  2. Review your witness’s public social media. If the witness has a LinkedIn page, review what is publicly available. Consider whether the information the witness has posted about their education, experience, and job duties is consistent with what is in their curriculum vitae. Look at what the witness has recently “liked.” Generally, it is advisable not to “connect” with or “follow” the witness on any social media platform.
  3. Prepare your witness. To the extent you find information relevant to the litigation or Rule 30(b)(6) topics, prepare your witness accordingly. For example, if your witness has posted an article on an industry blog about best practices, consider a mock-cross examination. Ask questions about whether the company adheres to those best practices. You can be sure opposing counsel will do the same.

Even if the information you learn through digital due diligence is arguably outside the scope of the deposition, opposing counsel may use it to rattle your witness or elicit testimony to learn facts that support their narrative. Opposing counsel may not be able to use that testimony against the company at trial but they could use what they learn in other depositions or to guide written discovery. This is why making yourself aware of your witness’s online profile and preparing the witness to field questions about the information they have shared online should be a routine step in your process for preparing corporative representatives or even company witnesses testifying in their personal capacities. 

Adria Conklin is a partner and Lauren Grinder is an associate at DLA Piper LLP in their Dallas, Texas, office.

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