Business litigation matters may be venued in federal or state courts. When litigating business or commercial disputes in New York State Court, the state court system has a separate court called the Commercial Division and has developed a set of rules governing these types of cases to ensure that commercial cases are brought through the court system in an efficient manner. A subsection of these rules is focused on discovery, the exchange and disclosure of information and documents related to the parties claims and defenses as well as deposition (formal interviews under oath). The rules of the Commercial Division are, much like in federal court, designed to limit the scope of disclosure, as well as reduce the time these cases linger in the discovery phase, as well as the costs.
When you have a legal dispute in the Commercial Division, you will likely need to take deposition of the other company or your company may need to be deposed. Deposing a company is different from deposing individual employees. Here's what you need to know and how to prepare:
Deposing the Company
You can force a company to designate representatives to testify on its behalf during a deposition. This testimony is binding on the company. In New York courts, you may also name a company representative by name who you want to testify to bind the company; although, the company may object.
To depose the company, your attorney serves the company with a deposition notice listing topics you want its representatives to address in a deposition. The company must then produce people able to speak knowledgeably on those topics (the people produced need not be the CEO, president, or owner), or the specific person you named in the deposition notice. These representatives testify on behalf of the entire company.
It's crucial to craft a list of topics carefully. You typically only get one shot at deposing the company itself. Any topics left off the initial list generally can't be added later, without a reasonable basis for the oversight.
Before creating the topic list, your attorneys will use other discovery tools (like requests for documents and written questions) to identify information gaps and potential deposition topics. The more informed the topic list, the better positioned your attorney will be to get the company's testimony you need.
Deposing Individual Employees
You can also depose a company's individual employees. This is fact witness testimony based on each person's personal knowledge. It does not bind the company as a whole, necessarily.
For current employees, your attorney must name the specific people you want to depose in a deposition notice to the company. The company can object, but must produce the requested individuals.
Former employees can be subpoenaed directly as third-party witnesses. But many times the company will have choose to have its attorneys represent the former employee (who has to agree to the representation) throughout discovery, including in depositions.
The Bottom Line
Deposing both the company itself and individual employees serves different purposes. The company's testimony locks in its formal position. Employee testimony provides additional facts. Used together, they can get you the complete picture you need to prove your case against a business or defend your business in a lawsuit.
If you have questions about how to get the information you need through depositions, please contact us. Our attorneys have extensive experience using these tools in business disputes.
As the current Court rules only allow for a single opportunity to designate topics and specific witnesses, it is imperative that the notice to take the deposition of corporate representatives is prepared with a complete topic list and after the opportunity to obtain additional information through other discovery avenues. Failure to do so can result in the designation of witness that provide little to no useful information to support your claims and defenses and without the opportunity to obtain that information through a second notice or by deposing specific employees individually.
If you are facing concerns related to similar issues or if you have questions about your Corporate Deposition Notice or Business Litigation generally, please feel free to contact us here. We have many years of experience handling such matters and will be able to assist you in resolving the dispute.