Preparing for a Deposition
Question: I am the HR director of a small company and have just been served with a deposition subpoena in a case where a former employee alleges that she was the victim of sexual discrimination when she was not promoted and was sexually harassed at work. I have never been deposed before and have not yet had any contact with our company's legal counsel. Can you please give me some tips on what I can expect from the preparation phase and the deposition itself, as well as what documents, in general, I should expect to be asked about when I am deposed?
Answer: The answer to this question depends on whether you are being deposed as a fact witness or as a corporate representative. As an HR director, you may also be called to testify in the capacity of both a fact witness and corporate representative. The basic procedures for both types of depositions are the same, but as a corporate representative you will be expected to testify on behalf of the company regarding its corporate procedures such as anti-discrimination and anti-harassment policies and procedures. Fact witnesses, on the other hand, are only expected to testify about what they personally saw, said, heard or did in relation to the case at hand. Your deposition notice should indicate the capacity within which you are being called to testify.
A deposition is part of the litigation process by which parties learn facts from each other before trial or before they file (usually the defendant) a dispositive or summary judgment motion. A deposition is taken under oath, and while it is not taken in court, the testimony you give at a deposition carries the same weight as if you had given it at trial. A court reporter will be present to transcribe your testimony. Sometimes depositions are also video recorded, in which case your attorney should inform you of this in advance. The opposing party's attorney, as well as your own attorney, will be present at the deposition. The plaintiff (employee or former employee) will likely be present as well. Below are 7 helpful tips to keep in mind as you prepare for your deposition:
1. Tell the truth
This is the most important rule to follow; you can only hurt your side's case if you lie.
2. Listen carefully to the question
Wait until the question is completed before answering, and if you do not hear or understand the entire question, you should ask the attorney to repeat the question or clarify. For example, if the question contains a false assumption, state that you cannot answer it because it calls for false assumption. Also, beware of hypothetical questions, - if asked one, identify it as a hypothetical question and stick to the facts. Be careful when answering leading questions, which usually begin with "Is it true that…?" or questions wherein the attorney sums up what you have already said and tries to get your agreement. Such questions may contain assumptions you do not agree with and usually require more than a simple "yes" or "no" to answer.
3. Form your answers carefully
It is perfectly acceptable to pause before answering a question. Also, stick with your first-hand knowledge when answering questions. Never speculate, make assumptions or guess when answering questions. Also, never volunteer information that was not asked of you. Only answer the question that is asked and then stop.
Try not to interrupt questions. Even when you think you know where the question is going allow the attorney to finish the question before speaking. Answering "I do not recall" is a perfect answer when you do not know the answer to the question with certainty. Remember, everyone makes mistakes, so do not be frustrated if you misstate a fact or date. If you realize you made a mistake during the deposition, simply inform your counsel during a break, and/or correct it at an appropriate time.
4. Treat documents presented to you with caution
As a witness, you should seek your attorney's counsel before reviewing any documents. Likewise, you should inform your attorney of any documents such as timelines or other notes made in preparation for your deposition, and preserve them in a safe place. However, you should not produce them to anyone unless your attorney instructs you to do so. During your deposition preparation, your attorney will review documents that have been produced in the case with you. Do not bring any documents with you to the deposition unless you have already discussed doing so with your attorney. If opposing counsel learns about a document you brought with you, you will likely be asked to produce it there.
During the deposition itself, read each document shown to you carefully and completely even if you are already familiar with it. Documents you can expect to see during a deposition in a discrimination and harassment case include any emails you wrote or received regarding the plaintiff/employee, company anti-discrimination and anti-harassment policies and procedures, human resource records such as written warnings to employees or employee evaluations, and employee promotion or termination papers. If opposing counsel asks you a question about a document without first showing it to you, you should request to see the document before answering.
5. Listen carefully to your attorney during the deposition
Your attorney will likely make objections throughout the deposition. You may learn something about the question and the type of answer it calls for from these objections. However, since there is no judge to rule on the objections, you are still required to answer the question if you understand it unless your attorney instructs you otherwise.
6. Take breaks and talk to your attorney whenever needed
Depositions often last many hours, so it is expected that you will ask for breaks when you are tired or need to ask your attorney a question. If a question is pending, however, you must generally answer it before taking a break. Anything you ask or tell your attorney is covered by the attorney client privilege so you are not required to answer any questions regarding your conversations with your attorney during your deposition.
7. Be relaxed but alert
Make sure you get a good night's rest before your deposition, because it is critical that you remain vigilant and alert throughout your questioning. If you find your mind wandering, or feel fatigue, ask for a break and let your attorney know. If you follow the basic suggestions above and follow your attorney's advice in preparation for the deposition and during, and, above all, tell the truth, you will be fine.
Keisha-Ann G. Gray is senior counsel in the labor and employment law department of Proskauer in New York and co-chair of the department's employment litigation and arbitration practice group. Proskauer Associate Jacklina A. Len assisted with this article.