Witnesses Need to Be Prepared for Depositions
Occasionally, from a ruling with a very technical focus we are able to draw a broader lesson.
The Wall Street Journal Law Blog, in a post by Ashby Jones, reported recently that a judge in the U.S. District Court for the Southern District of New York tore into counsel for the plaintiffs in a class-action securities fraud case. The title of the story clearly describes the viewpoint of the judge who took the unusual step of disallowing a class representative: “Judge Jed Rakoff: This Court Will Not Be Party to This Sham.”
The specific issue that set off the fireworks was that plaintiff’s counsel, in a class action, is supposed to produce a class representative with knowledge of the case. The representative chosen by counsel and produced at a deposition in this case, according the LB’s report of the judge’s decision:
. . . testified that he did not know the name of the stock at issue in this case, did not know the name of either individual defendant, did not know whether STA-ILA ever owned Monster stock, did not know if an amended complaint had been filed, did not know whether he had ever seen any complaint in the action, did not know that [an individual] defendant . . . had moved to dismiss the complaint, and did not know that [the organization chosen as class representative] had moved for pre-discovery summary judgment.
Counsel’s task was made a little complicated because they appropriately chose an organization to be class representative and the organization, in turn, chose the specific individual to be deposed. LB quotes counsel as follows:
The rule requires that the person who is most knowledgeable be produced for deposition, and in this case the client failed to produce someone who was the most knowledgeable. Nothing about this was a sham.
From only a single news story we are reluctant to pile on and criticize counsel about what happened in this particular case.
The story, however, does serve as a sharp reminder of a general lesson: in any litigation, it is crucial to prepare the witness for a deposition.
