Deposing Records Managers
ARMA Indianapolis
Electronic Discovery
Conference
March 24, 2010
Presented By:
Donna Panich, Esq.
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
EMPLOYERS & LAWYERS, WORKING TOGETHER
AGENDA

WHEN, WHY & WHO TO DEPOSE

KEY ISSUES

LAYING THE GROUNDWORK

PREPARING THE WITNESS
FIRST CLASS SERVICE, COAST TO COAST
EMPLOYERS & LAWYERS, WORKING TOGETHER
T0 DEPOSE OR NOT TO DEPOSE

SEARCHING FOR RELEVANT
EVIDENCE

EXPLORING SPOLIATION
FIRST CLASS SERVICE, COAST TO COAST
EMPLOYERS & LAWYERS, WORKING TOGETHER
TIMING CAN BE EVERYTHING
FIRST CLASS SERVICE, COAST TO COAST
EMPLOYERS & LAWYERS, WORKING TOGETHER
WHO PICKS THE WITNESS

THE RELATIVE MERITS OF
 30(B)(1)
 30(B)(6)
FIRST CLASS SERVICE, COAST TO COAST
EMPLOYERS & LAWYERS, WORKING TOGETHER
KEY
RECORDS
MANAGEMENT AND RETENTION
ISSUES
FIRST CLASS SERVICE, COAST TO COAST
EMPLOYERS & LAWYERS, WORKING TOGETHER
DEFINING THE CONCEPT

WHAT IS A “RECORD”?


Malletier v. Dooney & Bourke, Inc..
EPHEMERAL DATA


Convolve, Inc. v. Compaq Computer
Corp.
Columbia Pictures, Inc. v. Bunnell
FIRST CLASS SERVICE, COAST TO COAST
EMPLOYERS & LAWYERS, WORKING TOGETHER
POLICIES

SCOPE OF APPLICATION

LEGACY INFORMATION

POLICY v. PRACTICE

INTERPRETATION
FIRST CLASS SERVICE, COAST TO COAST
EMPLOYERS & LAWYERS, WORKING TOGETHER
POLICIES

MECHANICS OF IMPLEMENTATION



WHO
WHERE
HOW

TRAINING

OTHER USER ASSISTANCE
FIRST CLASS SERVICE, COAST TO COAST
EMPLOYERS & LAWYERS, WORKING TOGETHER
Collateral Processes

LITIGATION HOLDS

DESTRUCTION PROTOCOL

AUTO-DELETION

BACK-UP
Cache La Poudre Feeds, LLC v. Land O’ Lakes, Inc.
The Pension Committee of the University of Montreal Pension
Plan v. Banc of America Securities, LLC
FIRST CLASS SERVICE, COAST TO COAST
EMPLOYERS & LAWYERS, WORKING TOGETHER
COMPLIANCE

UNIFORMITY

DISCRETION

SELECTIVE ENFORCEMENT


U.S. v. Arthur Anderson LLP
Rambus, Inc., v. Infineo Techs
FIRST CLASS SERVICE, COAST TO COAST
EMPLOYERS & LAWYERS, WORKING TOGETHER
LAYING THE GROUNDWORK

PROPONENT



ADVANCE WRITTEN DISCOVERY
LOCKING IN KEY PLAYERS
DEFENDER


UNDERSTAND THE MANAGER’S ROLE
DETERMINE NEEDED BACKGROUND
INFORMATION
FIRST CLASS SERVICE, COAST TO COAST
EMPLOYERS & LAWYERS, WORKING TOGETHER
LAYING THE GROUNDWORK

MANAGER SHOULD UNDERSTAND




CASE THEORY
THE PURPOSE OF THE DEPOSITION
HIS/HER ROLE
WHERE YOUR TESTIMONY FITS IN
FIRST CLASS SERVICE, COAST TO COAST
EMPLOYERS & LAWYERS, WORKING TOGETHER
EXPLAIN BASICS – THE SETTING

THE STAGE

THE DATE

THE PLAYERS

THE COSTUMES

NO SCRIPTS
FIRST CLASS SERVICE, COAST TO COAST
EMPLOYERS & LAWYERS, WORKING TOGETHER
COVER THE CRITICAL RULES

TELL THE TRUTH




PREVARICATION
GUESSING
SPECULATION
LISTEN AND THINK




OBJECTIONS
UNDERSTANDING
SHORT AND SWEET
VOLUNTEERING
FIRST CLASS SERVICE, COAST TO COAST
EMPLOYERS & LAWYERS, WORKING TOGETHER
EXAMPLES
Question: “Is Ms. Smith still with the company?”
Correct Answer: “Yes.”
Wrong Answer: “She is still with the company,
but she was transferred to a new position.”
FIRST CLASS SERVICE, COAST TO COAST
EMPLOYERS & LAWYERS, WORKING TOGETHER
EXAMPLES
Question: “Who helped you draft the Company’s
record retention policy.”
Correct Answer: “John Doe and Bill Brown.”
Wrong Answer: “John Doe, and his
replacement, Bill Brown, after John was fired.”
FIRST CLASS SERVICE, COAST TO COAST
EMPLOYERS & LAWYERS, WORKING TOGETHER
EXPLAIN WHAT TO EXPECT…

“TRICK QUESTIONS”

SUBSTITUTING WORDS

COMPOUND QUESTIONS

NEGATIVE QUESTIONS

INTRODUCTORY CLAUSES

ASSUMING FACTS
FIRST CLASS SERVICE, COAST TO COAST
EMPLOYERS & LAWYERS, WORKING TOGETHER
…WHAT TO EXPECT…

INTERRUPTIONS

FRUSTRATION


REPETITIOUS QUESTIONS
THE WRONG QUESTIONS

“OFF THE RECORD”

CLARITY
FIRST CLASS SERVICE, COAST TO COAST
EMPLOYERS & LAWYERS, WORKING TOGETHER
RULES ON DEMEANOR





“KEEP YOUR COOL”
STAY FOCUSED
BE POLITE
DO NOT THINK ALOUD
ABSOLUTELY NO



OBSCENITY
ETHNIC SLURS
DEROGATORY NAMES
FIRST CLASS SERVICE, COAST TO COAST
EMPLOYERS & LAWYERS, WORKING TOGETHER
MECHANICAL POINTERS

READ EXHIBITS

AUDIBLE ANSWERS

FULL SENTENCES

AVOID LEVITY, HYPERBOLE, OR SARCASM
FIRST CLASS SERVICE, COAST TO COAST
EMPLOYERS & LAWYERS, WORKING TOGETHER
THANK YOU
Donna Panich, Esq.
317. 916.2168
[email protected]
FIRST CLASS SERVICE, COAST TO COAST