Kreisman Law Offices Professional Corporation
Attorneys should be aware that corporations can be deposed by authority of Illinois Supreme Court Rule 206. In Illinois, a deposition notice pursuant to that Supreme Court rule would require the corporate party or government entity to designate and produce for deposition a witness to give testimony at a discovery deposition on behalf of the corporation with respect to the facts set out in the notice of deposition. This would be the person most knowledgeable about the corporation and those relevant facts. The corporation would be obliged to produce one or more of its officers, directors, agents, employees or other persons who have knowledge on the subject matter of the inquiry.
The Illinois Supreme Court rule is similar to the Federal Rule 30(b)(6). A designated representative who gives testimony under Illinois Supreme Court Rule 206(a) may not be contradicted by any other corporate representative at trial. SCR 206(a)(1) also grants subpoena power to depose a corporate representative who is a non-party to the case. In the subpoena it should be explained what the subject matter of the deposition would be; what matters known are reasonably available to the corporation should be made available at the deposition.
The corporate representative’s testimony is binding on the company. Testimony given at a deposition may be considered a party admission that precludes the corporation or a party in the lawsuit from contesting the essential elements of its claims or defenses later on in the litigation. In some cases, the corporate representative with the most knowledge may be a former employee of the corporation, partnership or entity.
The parties may question whether the designated corporate employee has the authority to act for the corporation or organization.
In one of our cases, a dispute arose because a “witness” was deposed before the SCR 206(a)(1) notice of deposition went out to the corporate defendant. The defendant argued that the deposition of a designated person was already deposed. The counter argument was that questioning a witness was not the same as questioning the designated corporate or entity witness to provide testimony on behalf of the corporation or organization. The trial judge agreed and allowed the SCR 206(a)(1) depositions to proceed.
It should be noted as well that the notice of deposition should be specific about the topics that the corporate witness will be asked to testify about. If the designated witness is asked to testify about topics not set forth on the notice, the witness may not be knowledgeable and therefore the examining party is stuck with those answers.
Therefore, the 206(a) notice should identify the topics on which the testimony is sought with some reasonable particularity about the subject matter. In other words, the notice should have enough information in it to alert the corporation or entity to identify and designate the appropriate witness or witnesses to testify on the topics. It would not be that uncommon that an objection might be raised as to the topics set forth in the notice of deposition.
In general, corporate representative witnesses are well prepared for the deposition. If the corporations’ designated witness is ill-prepared, the corporate litigant may be subject to sanctions for failure to comply with the deposition notice. In other words, if the corporate designated witness is unable to answer questions or answers “I don’t know” to questions presented that the corporation or entity should know and are substantive, that may be detrimental to the corporation if it is a litigant to the case. Many corporations are accustomed to notices under SCR 206(a)(1) and thus have an active player list of ideal witnesses who are knowledgeable, articulate, patient, confident and have a good memory about the subject matter.
Whatever the situation, SCR 206(a)(1) is a valuable discovery tool that should not be neglected.
Kreisman Law Offices has been handling trial work, business litigation, injury litigation and medical negligence cases for individuals, families and businesses for more than 38 years in and around Chicago, Cook County and its surrounding areas, including Chicago (Roscoe Village, Sauganash, South Loop, West Loop, Wrigleyville, Pilsen, Ravenswood Manor, Canaryville, Bucktown, Beverly), Cicero, Deerfield, Fox River Grove, Evergreen Park, Lincolnwood, Lincolnshire, Lake Forest, Joliet, Hinsdale, Park Ridge, Palatine, Roseland, Round Lake Beach and St. Charles, Ill.
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