Verifying Interrogatories Can Result in Deposition of In-house Counsel and Expense

Two big lessons can be learned from an interesting decision by Magistrate Payson in Tailored Lighting, Inc. v. Osram Sylvania Products, Inc., decided last week in the US District Court for the Northern District Court of New York.  First, an in-house lawyer can anticipate a deposition notice if he or she verifies interrogatories, and second, make sure that the witnesses produced in response to a Rule 30(b)(6) notice of deposition can answer all questions asked.

As for the in-house counsel's deposition, the opinion discusses the factors that should be present before a lawyer will be deposed, and, after deciding that the deposition should go forward, states that the questions are to be limited to:

(1) identifying the information provided to and relied upon by [the in-house lawyer], whether through communications with individuals or review of documents, in answering the interrogatories; (2) identifying the particular source (person or record) of that information; (3) non-privileged communications between [the in-house counsel] and his human sources about that information that occurred in the course of investigating and answering the interrogatories.

In other words, there is a good chance – as anyone who has ever attended a deposition knows – that there will be a lot of going back and forth about privilege with threats to call the judge the day that the deposition takes place. It seems easier to have someone outside of the legal department sign the verification.

Second, the decision addresses the scope of Rule 30(b)(6) witnesses – and orders that two of the identified witnesses to be re-deposed to answer certain questions that they could not answer in their initial testimony. 

In no way am I critical of the parties in this case because I know from experience that you pretty much have to be in a case to understand the how and why that litigation unfolds, and when I unsuccessfully looked for a free copy of this opinion on-line, I could see that this case has been a siege for the parties. 

But, I see literally dozens of articles each week about concern regarding outside counsel fees in these days of financial sturm und drang.  Avoiding motions to compel by anticipating arguments like those made on this motion seems like a good way to go.


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