In almost all litigation, the depositions of the individual parties are important. Often cases rise and fall based solely on this testimony. For associations, however, the party is an organization and not a person. It is therefore necessary for the association to select an individual, or group of individuals, to speak on its behalf as the corporate representative.
Rules in every court, state and federal, provide for the designation and deposition of a corporate representative to speak on behalf of the association. Federal Rule of Civil Procedure 30(b)(6), for instance, provides:
[A] party may name as the deponent a public or private corporation … and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify….The persons designated must testify about information known or reasonably available to the organization.
Sometimes there is a clear choice of which individual to testify on behalf of the association, but often choosing a designee proves stressful to both the directors and attorneys. As courts have generally found, a corporation must make a conscientious, good faith, effort to designate the persons having knowledge of the matters sought and to prepare those persons in order that they can provide responsive answers to the questions asked on relevant subject matters. If there is no current knowledgeable representative, courts generally find that the designated representative should prepare by reviewing documents, depositions, exhibits, and speaking with others.
Associations are not like other corporations in that they are generally run by volunteers with little, if any, expertise in dealing with many of the issues that may arise. This can lead to problems in litigation and makes the selection of experienced counsel even more important. As a director, you should take these requirements seriously because failing to make a good faith effort to produce an appropriate representative can result in adverse rulings. Courts have found a myriad of ways of dealing with these situations ranging from permitting additional depositions to the striking of pleadings in extreme circumstances.
