In litigation, when deciding which employee a corporation should make available for the opposing party to depose, the “corporate entity has the right to designate, in the first instance, the employee who shall be examined.” Schiavone v. Keyspan Energy Delivery NYC, 89 A.D.3d 916, 917 (2d Dep’t 2011). The corporation and counsel must decide, based on the totality of the circumstances in the specific case, which employee will testify best. Remember, opposing counsel will evaluate the likability and credibility of a witness as well as determine how the witness will present to the finder of fact at trial. The corporation must be consciously aware that producing an employee who does not provide adequate information or who does not have the requisite knowledge may result in the need to produce an additional witness. In that case, the opposing party must show “(1) the employee already deposed had insufficient knowledge, or was otherwise inadequate, and (2) the employee proposed to be deposed can offer information that is material and necessary to the prosecution of the case.” Id.
For example, in Sladowski-Casolaro v. World Championship Wrestling, Inc., the court held that the Nassau Veterans Memorial Coliseum was not required to produce additional witnesses for deposition in an action for personal injuries. 47 A.D.3d 803, 803-04 (2d Dep’t 2008). The Court reasoned that “[t]he plaintiff failed to sustain her burden that the Coliseum representative who had already been disposed had insufficient knowledge, or was otherwise inadequate, and that there was a substantial likelihood that the persons sought by the plaintiff for additional depositions possessed information which was material and necessary to the prosecution of the case.” Id.
It is imperative that a corporation, working with counsel, carefully decide which employee to select for a deposition. Producing the wrong employee may subject the corporation to additional legal fees and wasted time. Therefore, the corporation must discuss with counsel which potential witness has the degree of knowledge required for a meaningful deposition and assess how the witness will present at the deposition. By collaborating with counsel, the client can avoid the unnecessary cost and expense of producing multiple witnesses for depositions and the possibility of engaging in otherwise unnecessary motion practice.