By T. Evan Schaeffer

Excerpted from Deposition Checklists and Strategies

Most jurisdictions have a rule allowing for depositions of corporate representatives, usually based upon Federal Rule of Civil Procedure 30(b)(6). For more about the legal authority for conducting a corporate-designee deposition, as well as the corporate defendant’s duty in responding, see §4:110 Authority for Corporate Designee Deposition and §4:111 Defendant’s Duty to Select the Corporate Representative.

§7:71    Timing

Corporate-representative depositions are often most effective just after the initial round of discovery. Use the procedure to quickly develop a list of persons with knowledge, information about relevant documents, information about company standards and practices, and a chronology of events. The resulting deposition transcript can be used as a roadmap for further discovery.

[§§7:72-7:79 Reserved]

B.   Goals, Strategy and Preparation

§7:80    Deposition Goals

The goals of a corporate-representative deposition in an insurance coverage dispute do not differ significantly from other cases. Your goal is to get basic information about the claims and defenses. If the witness does not have the best information, find out who does. Later, you can follow up with individual depositions.

In addition to basic information, corporate-representative depositions can also be used to obtain information about more narrow issues in the case. See, e.g., §6:62 Practice Tip: Consider the Use of a Corporate-Representative Deposition on Electronic Discovery Issues.

§7:81    Deposition Preparation

The corporate-representative deposition is often used as a follow-up to the initial round of discovery. To prepare for the deposition, review your opponent’s responses to interrogatories and document requests in light of the topics you have listed on the deposition notice. As with any other type of deposition, you should also review your entire file and consider how you will use this deposition to advance the proof of your case.

§7:81.1     Practice Tip: Searching the Internet for Deposition Tips

Looking for deposition tips on the Internet? Give these search strategies a try:

  • Search the web Many lawyers post articles they’ve written on their websites. Use Google to. find articles about depositions. Start by searching for “deposition,” then narrow your search from there. All of these might yield good results:
  • Deposition tips;
  • Deposition strategy;
  • Deposition advice;
  • Objections at depositions;
  • Preparing for depositions.
  • Try Weblogs. There are many weblogs devoted to lawyers and trial practice. To find these, you can add the word “blog” to your searches or use a search engine like technorati.com, which focuses exclusively on weblogs.
  • Check with Your State Bar. Your bar membership might include free use of web-based resources such as magazines and legal databases. These resources can be of great value if they have what you’re looking for.

§7:82    Deposition Strategy

The simplest way to conduct a corporate designee deposition is to proceed with the topics as they are listed in the deposition notice. Of course, you can also skip to other topics, taking them out of order, as the corporate designee’s answers suggest other topics.

If you do take topics out of order or move back and forth among topics, take a break at the end of the deposition to make sure that you have covered all the topics. If you find out later that you have not, you will have to cover the skipped topics with written discovery or individual depositions.

§7:83    Deposition Exhibits

The exhibits you use in the deposition will be determined by the topics you plan to cover. As you prepare for the deposition, group the defendant’s documents by deposition topic. Some documents may not be pertinent to any topic. Of those that are, decide which ones are important enough to cover in detail with the corporate representative. Set these aside. You’ll also need to make extra copies to be marked and handed to the witness.

[§§7:84-7:89 Reserved]

C.   The Deposition Outline

1.    Background and Thumbnail Outline

§7:90    Background Facts

The sample deposition in this case arises from a dispute between a group health insurer, Group Health Advocates, and one of its insureds, John Fredericks. After being diagnosed with prostate cancer, Fredericks’ treating doctors suggested a special procedure called a “nerve-sparing radical prostatectomy.” This surgery cost more than the typical treatment and had to be performed by an out-of-network specialist.

Fredericks’ insurer, Group Health Advocates, required pre-surgery approval on all out-of-network surgeries. GHA declined the approval on the grounds that the typical procedure could be performed within the network at less cost.

After receiving the denial, Fredericksscheduled the nerve-sparing radical prostatectomy and paid for it himself. He then sued the health plan for reimbursement after unsuccessfully following the administrative, plan-based procedures for appealing the denial.

§7:91    Thumbnail Outline/Deposition Checklist

The basic outline of this sample deposition of an insurance company corporate designee is as follows:

  • Standard Introductory Questions
  • The Witness’s Background, Including His Background With the Defendant
  • The Deposition Notice and Areas of the Witness’s Knowledge
  • The Witness’s Preparation for the Deposition
  • Specific Deposition Topics
  • The Process by Which Out-of-Network Procedures Are Requested by Insureds
  • Plaintiff’s Request for an Out-of-Network Procedure, and Whether the Procedure Was Properly Followed
  • The Process by Which Defendant Makes Decisions About Out-of-Network Requests
  • The Process by Which Plaintiff’s Out-of-Network Request Was Considered and Denied
  • The Reasons that Plaintiff’s Out-of-Network Request Was Denied
  • Whether a Procedure Called a “Nerve-Sparing Radical Prostatectomy” Was Available Within the Network
  • Closing Questions

[§§7:92-7:99 Reserved]

2.    Preliminary Questions

§7:100  Standard Introductory Questions

You should begin the deposition with the standard set of preliminary questions.

Q:    Please state your name for the record.

Q:    Where do you live?

COMMENT:

Always ask the corporate designee where he or she lives. Do not assume that the corporate defendant has chosen a witness who lives nearby. If the corporate defendant is a large company with many offices, the witness could have traveled from anywhere for the deposition.

The information about where the witness lives will give you some information about the witness’s relationship to the corporation. For example, does the witness work at the corporation’s headquarters or at a distant outpost? In addition, a jury might feel differently about a local witness as compared to someone from out of town.

Q:    What is your date of birth?

COMMENT:

Asking the witness’s age will help you to recall this fact later when you are reading the deposition transcript without being able to look at the witness.

Q:    Have you given a deposition before?

Q:    On how many occasions?

COMMENT:

If the witness has been deposed before, find out the number of times. Get some preliminary information about the type of case to find out whether the testimony the witness gave before might be relevant to the current dispute. Ask additional questions if you think the issues in the cases might overlap. These questions should be designed so that you get enough information to follow up with a document request for the deposition transcripts.

In addition, you should ask for the names of the lawyers who were involved in the prior case, since you might be able to use them as a resource.

Q:    I want to tell you some ground rules for this deposition, is that all right?

Q:    The court reporter is taking down everything we say, so it is important that you answer with words, rather than with a nod or shake of the head. Do you understand?

Q:    To make it easier for the court reporter to record what we say accurately, it is important that we not talk over one another. Please wait until I have finished my question before answering. Okay?

Q:    You understand that you are under oath today?

Q:    And sworn to tell the truth?

Q:    Even though we’re in an informal setting, your testimony has the same force and effect as if we were in front of a judge and jury. Do you understand?

Q:    If you don’t understand one of my questions, please let me know, and I’ll rephrase it. All right?

Q:    If you need to take a break, let me know, and we can take a break. Okay?

Q:    Are you prepared to answer my questions today?

Q:    Is there any reason you won’t be able to give me full, complete and truthful answers to my questions today?

For more about the purposes of the standard preliminary questions in a deposition, see §1:100 Preliminary Questions.

§7:101  The Witness’s Background, Including His Background With the Defendant

Even though the corporate representative’s answers will bind the company, you should ask foundational questions about the witness’s background to find out if he or she is truly in a position at the company to give you the detailed information you are seeking.

Q:    Tell me your business address, please.

Q:    Is your office at the corporate headquarters?

Q:    Please describe your educational history to me, beginning with high school.

Q:    Have you ever been convicted or pled guilty to any crime other than a minor traffic violation?

COMMENT:

If you are concerned about possibly alienating the witness with this question, preface the question with something like, “I apologize for asking, but the rules allow me to: Have you ever been convicted or pled guilty to . . . .”

If there is such a conviction or plea, you might be able to get this evidence in front of a jury in order to impeach the credibility of the witness. You will want to follow up after the deposition by seeking documentary evidence of the conviction.

Q:    When did you begin working for the Defendant?

Q:    What is your title now?

A:    “Vice President, Referrals.”

Q:    How long have you held the title Vice President, Referrals?

Q:    Who do you report to within the company?

Q:    And whom does he report to within the company?

Q:    What are your job duties as Vice President, Referrals?

Q:    What other titles have you held since you began working for the Defendant?

COMMENT:

If the witness’s previous positions related to any of the issues in your lawsuit, you should ask further questions about the witness’s job duties.

Q:    Who reports to you?

[§§7:102-7:109 Reserved]

3.    The Notice and Witness’s Preparation

§7:110  The Deposition Notice and Areas of the Witness’s Knowledge

If you have not discussed which of the deposition topics the particular witness will address with the defendant’s lawyer, or if you want to confirm with the witness that he or she has the requisite knowledge, you can do it in the following manner:

Q:    I’m handing you what’s been marked as Exhibit 1, which I’ll represent is the deposition notice that was filed by the Plaintiff for the deposition today. Have you ever seen that document?

Q:    Do you see that there are six deposition topics listed in the notice?

Q:    Will you please read them and let me know when you are finished?

Q:    Do you have personal knowledge of all the six topics listed in the deposition notice?

Q:    Have you been designated by the company to testify today, on its behalf, concerning each of these topics?

Q:    Are there any topics for which you do not have sufficient knowledge to testify?

§7:111  The Witness’s Preparation for the Deposition

Asking how a witness prepared for a deposition will give you some information about the issues of most concern to the witness and, by extension, the defendant’s lawyer.

Since the witness is at the deposition as a representative of the corporate defendant, questions concerning conversations with the defendant’s lawyers may be privileged. Occasionally you will also get a “work product” objection to questions about the documents the witness reviewed. Check with the law of your own jurisdiction, but generally this objection is not valid, especially if the witness’s document review refreshed his or her recollection of key events.

Q:    What did you do to prepare for the deposition today?

Q:    Did you review any documents in preparation for the deposition today?

Q:    Which documents did you review?

Q:    Did you have any communications with anyone about your deposition today, other than your lawyers?

COMMENT:

If the witness answers “yes,” find out with whom the witness communicated and the subject and purpose of the communication.

Q:    When did you first learn of this deposition?

Q:    After you learned about the deposition, did you speak with anyone other than your lawyers about any of the topics listed in the deposition notice?

[§§7:112-7:119 Reserved]

4.    Specific Deposition Topics

§7:120  Process for Requesting Out-of-Network Procedures

The deposition now turns to the specific topics listed in the notice. Although these topics certainly don’t have to be taken up in chronological order, that’s how it’s done in this sample deposition to make the questioning easier to follow.

Q:    Are plan members generally required to stay within the network if they wish to be reimbursed for their care?

Q:    What is the purpose of that restriction?

Q:    Are there procedures in the plan for seeking medical care outside of the network?

Q:    What is the purpose of that exception to the general rule?

Q:    How does a plan member go about seeking out-of-network treatment?

A:    “The member must have his in-network doctor complete an out-of-network request form.”

Q:    That’s the first requirement?

Q:    And where is that requirement published?

Q:    What is the member supposed to do with the request form?

Q:    What other requirements are there for seeking out-of-network patient care?

A:    “The request form must be supported with a letter from an in-network doctor explaining why the out-of-network care is necessary.”

Q:    Is that requirement published in the same place as the other?

Q:    Are the other requirements?

A:    “No, that’s it.”

§7:121  Whether Plaintiff Properly Requested Out-of-Network Procedure

The purpose of the next topic is to determine whether the defendant contends that the Plaintiff failed to follow the proper out-of-network procedures.

Q:    Are you aware that John Fredericks, the Plaintiff in this case, requested an out-of-network procedure?

Q:    The procedure he requested was called a nerve-sparing radical prostatectomy?

Q:    In making his request for an out-of-network nerve-sparing radical prostatectomy, did Fredericksproperly follow your procedures?

A:    “Yes.”

Q:    He filled out the form properly?

Q:    He properly submitted a supporting letter from his treating oncologist?

Q:    Are you aware that later, Fredericks’ request was denied?

Q:    Are you aware of the reason for the denial?

Q:    The denial was not because Fredericks failed to follow the proper procedures?

COMMENT:

Further questioning about the precise reasons the request was denied follows below.

§7:122  Practice Tip: Terminology

Especially in the insurance industry, corporate representatives often employ industry lingo or jargon in answering questions. It is not meant to throw you off, necessarily; it’s simply the way the witnesses are used to talking about their jobs and their companies.

When possible, consider adopting the witness’s own jargon in phrasing your questions. It will give the witness less of an opportunity to avoid your question by pretending he doesn’t understand it. Before you adopt this approach, however, have the witness define the jargon on the record. Ask the witness what terms company employees use when they are discussing the factual issues in dispute in your case, and then ask the witness to define those terms.

You can devote an entire earlier section of your deposition to agreements about terminology, or have the witness define terms as they come up in the course of the deposition.

§7:123  Defendant’s Process for Handling Out-of-Network Requests

In an earlier section, the witness was questioned about the procedure plan members must follow in requesting out-of-network treatment. The questioning now turns to the Defendant’s procedures for determining whether such requests will be granted.

Q:    Who make decisions about out-of-network requests for treatment?

A:    “Any of the plan administrators can do that.”

Q:    What’s a plan administrator?

Q:    How many plan administrators are employed by the company?

Q:    Do the plan administrators work all in the main office?

Q:    Who supervises the plan administrators?

Q:    Do plan administrators receive training about out-of-network requests?

Q:    Please describe that training.

Q:    Do plan administrators have the final authority in ruling on out-of-network requests?

Q:    Their decisions do not have to be reviewed by anyone else?

Q:    What criteria do plan administrators use in determining whether or not to approve an out-of-network request?

Q:    Are there procedures for documenting decisions about out-of-network requests?

Q:    Explain those procedures.

Q:    What other job duties do the plan administrators have?

§7:124  Whether “Nerve-Sparing Radical Prostatectomy” Was Available Within the Network

The next topic is designed to obtain an admission from the Defendant that the procedure that Plaintiff wanted was not available within the network.

Q:    Have you heard of a procedure called a “nerve-sparing radical prostatectomy”?

Q:    When did you learn about it?

A:    “I hadn’t heard about it until this lawsuit.”

Q:    What is your understanding of what that procedure entails?

Q:    What did you do to educate yourself about nerve-sparing radical prostatectomies?

Q:    And why did you feel it was necessary to educate yourself about nerve-sparing radical prostatectomies?

Q:    In doing your research, did you learn whether nerve-sparing radical prostatectomies have advantages for some patients?

A:    “I’m not a doctor, so I’m not comfortable answering that question.”

Q:    Let me rephrase it. In doing your research, did you come across any claims that a nerve-sparing radical prostatectomy has advantages for some patients over other similar procedures?

Q:    Do you have any reason to dispute those claims?

COMMENT:

The defense attorney might object that this question lacks foundation, i.e., that the witness is not trained as a doctor. You might ask the question anyway to make sure that the witness is not going to testify on the topic. If the witness says he can’t answer, you will close the door on the witness’s ability to ever answer the question.

Q:    In doing your research about nerve-sparing radical prostatectomies, did you learn where the procedure is offered?

A:    “You mean what hospitals?”

Q:    Yes. Do you know what hospitals offer the procedure known as a nerve-sparing radical prostatectomy?

A:    “Yes.”

Q:    Which ones offer it?

Q:    There are no hospitals in your network that perform nerve-sparing radical prostatectomies?

A:    “That’s true.”

Q:    And no surgeons?

A:    “Correct.”

§7:125  Process by Which Plaintiff’s Out-of-Network Request Was Considered and Denied

In an earlier section, the witness was questioned about the process by which out-of-network requests are considered in general. The questioning now turns to the Plaintiff’s case specifically: was the general process, described earlier, followed in denying his request?

The specific reasons why the request was denied will be covered in the next section.

Q:    Did you play any role personally in the consideration of John Frederick’s request that he be approved for an out-of-network nerve-sparing radical prostatectomy?

A:    “No.”

Q:    Who made the decision to deny Mr. Frederick’s request for an out-of-network nerve-sparing radical prostatectomy?

A:    “A plan administrator.”

Q:    Which one?

A:    “Mrs. Jules Hotstrager.”

Q:    Do you know if her decision was reviewed by anyone else?

§7:126  Practice Tip: The Witness Who Tires as the Deposition Goes On

Witnesses are frequently advised not to volunteer information. Many lawyers report, however, that witnesses often violate this rule towards the end of a deposition. This could be because the witnesses are tired after a long deposition. It might also be due to the relief that comes in learning that the deposition process was not as difficult as expected.

If you find that a witness is suddenly becoming more receptive to your questions and even seems to want to help you out, think about returning to topics you have already finished, especially if you think there is more information on those topics to learn from the witness.

§7:127  Why Plaintiff’s Out-of-Network Request Was Denied

At this point in the deposition, the questioning turns to one of the key issues in the case: why the Plaintiff’s out-of-network request was denied. The Plaintiff’s contention is that it was denied arbitrarily. Not only was the procedure medically necessary, but it was not available within the network.

Q:    Do you know why Mr. Fredericks’ out-of-network request was denied?

A:    “Yes.”

COMMENT:

This is a foundational question designed to find out whether the witness has the requisite knowledge to answer other questions about the denial.

Q:    How did you learn why Mr. Frederick’s out-of-network request was denied?

A:    “In getting involved in this case, I assisted with answering interrogatories. I learned about the decision at that time.”

Q:    What did you do in assisting with answering the interrogatories?

Q:    Did you talk to anyone besides the company’s lawyers in assisting with answering the interrogatories?

Q:    Who did you talk to on the issue of why Mr. Frederick’s out-of-network request was denied?

A:    “Just Mr. Smith.”

Q:    Who is Mr. Smith?

A:    “The Vice President of Operations.”

Q:    When did you talk to Mr. Smith about Mr. Frederick’s out-of-network request?

Q:    You talked just once?

Q:    How long did the conversation last?

Q:    What did you discuss specifically?

Q:    Did you document your conversation anywhere?

Q:    Did Mr. Smith tell you why Mr. Frederick’s out-of-network request was denied?

A:    “Yes.”

Q:    What did he say?

A:    “It wasn’t medically necessary.”

Q:    The nerve-sparing radical prostatectomy wasn’t medically necessary?

A:    “Right.”

Q:    Why not?

A:    “That I don’t know. We didn’t talk about that.”

Q:    Do you have any reason to doubt that was the reason why Mr. Frederick’s out-of-network request was denied?

Q:    Did Mr. Smith say if there were any other reasons for the denial of Mr. Frederick’s out-of-network request?

A:    “No.”

Q:    Do you know of any other reasons?

A:    “No.”

Q:    Have out-of-network requests for nerve-sparing radical prostatectomies been made by other plan members?

Q:    Were any of those requests accepted?

[§§7:128-7:139 Reserved]

5.    Closing Questions

§7:140  Closing Questions

End the deposition by following up on any answers you did not fully explore. For more closing tips, see §3:231 Practice Tip: What to Do at the End of the Deposition and §5:211 Caution: Never Finish Until You’re Done

The background facts upon which the sample deposition is based can be found at §7:90 Background Facts.

Form: See the following form at the end of chapter 7 of Deposition Checklists and Strategies

  • Form 7:03 Deposition Notice for a Corporate Representative in Health Insurance Denial Case


T. Evan Schaeffer began his career as a defense lawyer, but since 1996 has worked primarily on the plaintiffs’ side. Schaeffer’s areas of practice include complex commercial and tort litigation, including mass torts and class actions, as well as general civil litigation. Mr. Schaeffer’s publications include articles and essays in many newspapers and magazines, including the Chicago Tribune, the Houston Chronicle, the St. Louis Post-Dispatch, and the Illinois Bar Journal. Mr. Schaeffer also publishes two weblogs, The Illinois Trial Practice Weblog and Evan Schaeffer’s Legal Underground.  Mr. Schaeffer is the author of Deposition Checklists and Strategies, from which this article is excerpted.