When a party is asked to produce a deponent who can explain the company’s email and computer systems, the question of who to produce as a witness can be tricky. Sometimes the in-house IT employees, who may have the most knowledge, might not make the best witnesses. On the other hand, designating another employee who may come across better, but who needs to be brought up to speed on technical issues that may be outside his or her domain, can be a challenge. A recent decision reminds us that, if you take the latter approach, you’d better make sure you really do educate the witness sufficiently to answer the questions.
In Ideal Aerosmith, Inc. v. Acutronic USA, Inc., 2008 WL 4693374 (W.D. Pa. Oct. 23, 2008) (click here), the case involved an alleged use of the plaintiff’s trade secrets through emails acquired by the defendants. The plaintiff sought sanctions against the defendant for failing to produce a witness capable of answering a series of questions about topics identified in a Rule 30(b)(6) notice concerning the defendant’s e-mail systems, other computer systems, and backup policies and procedures. In discovery, the defendant apparently produced only one document in response to discovery requests, although later acknowledged that at least some responsive email did exist. The defendant argued that “the only source of such information is an independent consultant in Switzerland … who will not consent to testify on behalf of” the defendant, and therefore the plaintiff should have pursued the consultant in Switzerland. Id. at *2.
Regarding the Rule 30(b)(6) process, the court observed:
In modern litigation, discovery almost always involves the production of documents stored on computers, servers and other electronic facilities. It is commonplace in litigation to inquire of a corporate defendant the steps it took to find and produce documents relating to the litigation, as well as the corporation's electronic document storage and retrieval systems, in order to ensure that discovery was diligently completed. Where a defendant … has failed to produce any meaningful documents in response to Plaintiff's discovery requests, the need for and relevance of this inquiry is unquestionable.
Id. at *3.
The defendant’s Rule 30(b)(6) designee on the IT topics “was unable to answer the most basic questions on these topics,” “could not identify which computers were searched for documents, any backup tapes or other media that were searched, or what backup media was used … to store electronic data.” Id.
The court found those failings significant, and reiterated the duty the defendant had to properly educate its designated witness, stating that the witness “had an obligation to educate himself on this issue if it was reasonable to do so,” could have “prepared himself, either through documentation prepared by [the Swiss consultant] or conversations with him, to answer even the foundational questions posed by counsel for Plaintiff at the 30(b)(6) deposition.” Id.
As sanctions, the court declined plaintiff’s invitation to enter default judgment against the defendant. Instead, the court ordered the defendant to reimburse plaintiff one-third of plaintiff’s expenses and fees for preparing for and attending the unproductive deposition and all of plaintiff’s fees and expenses in preparing the motion for sanctions. The court also ordered the defendant to produce someone knowledgeable for deposition locally (not in Switzerland) to answer questions related to the topics identified by the plaintiff.
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