If you represent an organization that gets served with a deposition notice under CCP §2025.230, you’ll need to designate “persons most knowledgeable” (PMK) to show up. This can be complicated, particularly if such employees are no longer with the organization or if the organization serves so many customers that getting called into depo in every case would be onerous. Never fear: the first problem can be dealt with by preparing current employees to speak to the issue, and the second may be eliminated by the courts.
Once served with a PMK notice, your client has to diligently:
- Search for and identify the officers, directors, managing agents, employees, or agents who are most knowledgeable to testify on matters specified in deposition notice;
- Locate all available documents (if deposition notice also includes a notice to produce) that are responsive to the areas described in deposition notice; and
- Require deponent(s) to review those documents to answer questions asked during deposition to the full extent of information known or reasonably available to the organization.
But what if the most knowledgeable people are no longer working for the organization? The organization isn’t required to produce former employees for deposition, even when they are the most knowledgeable people, but the loss of personnel doesn’t excuse it from producing a knowledgeable person.
Get a current employee up to speed. He or she must be made sufficiently knowledgeable through access to information and documents reasonably available to the organization and ready to testify about it. For example, a human resources manager must be able to identify a company personnel file and should be familiar enough with its contents to answer specific questions by referring to the information in the file.
And because no single person is expected to be familiar with the contents of all of the organization’s files, when a request for documents is made to a PMK, “the witness or someone in authority is expected to make an inquiry of everyone who might be holding responsive documents or everyone who knows where such documents might be held.” Maldonado v Superior Court (2002) 94 CA4th 1390. By the same token, multiple PMKs may be necessary because no single person may be best qualified to testify about all identified subjects.
Some types of organizations have so many customers and the nature of the business is such that deposition notices may be frequent. That’s clearly the situation with file-sharing services like Dropbox, which has over 400 million users who save over 1.2 billion files there every 24 hours. In Intermarine, LLC v. Spliethoff Bevrachtingskantoor, B.V. (ND Cal, Aug. 20, 2015) 2015 US Dist Lexis 112689, Dropbox received a deposition notice directing it to designate one or more employees as Persons Most Knowledgeable on 12 deposition topics and 26 subtopics. Dropbox objected, but offered to provide a certificate of authenticity signed by a Dropbox records custodian sufficient to authenticate the records at issue. The offer wasn’t accepted and the court got involved.
The court found that, for several reasons, the request for further testimony “is duplicative and unnecessarily burdensome,” or as Bow Tie Law’s Blog notes, “[i]t would be insane if Dropbox, Box.net, or any other file sharing service had to produce PMK witnesses every time one of their users was producing discovery.”
Other CEBblog™ posts on depositions:
- Develop a Routine: Stock Questions to Ask in Every Deposition
- 5 Ways to Defeat Deposition Abuse
- That’s Privileged! Claiming Privilege in a Deposition
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