Discovery and depositions in asbestos cases have a unique set of challenges and require different strategies for both plaintiff and defense attorneys. Susan J. Cole, a defense attorney with the Bice Cole Law Firm, and Christian Hartley, a plaintiff attorney at Maune Raiche Hartley French & Mudd LLC, gave their own viewpoints and recommendations in the “Discovery In a New Light” session at the 14th Annual National Asbestos Litigation Conference, produced by HB Litigation Conferences, on Oct. 3 in Amelia Island, Fla.

‘Face’ of the Litigation

Depositions in asbestos cases are governed by Federal Rule of Civil Procedure 30(b)6, said Cole. “The main part of the rule is that a corporation … has to designate … one person to be its face for the litigation. The corporation gets to designate this person and it has to be a person who is either familiar with the cause of action or has to become familiar with the history of the corporation to answer questions within a designated scope,” said Cole.

She said many disputes tend to arise over the scope of the depositions.

“Obviously as the plaintiffs we battle with these things over and over again,” said Hartley. “What is the scope of these things? I’ve gone both ways. I’ve tried to appease courts and defense counsel by doing very short notices of deposition … but whenever it comes time to use those things at trial, they say ‘oh, well that wasn’t within the scope of the deposition’, so I have defaulted to a rather lengthy, very detailed 30-point notice of deposition.”

Cole said that the purpose of the 30(b)6 notice is “several fold.” “Ostensibly, it’s for information gathering and document production, mostly for authentication purposes. It is essentially to confront the corporation with documents and materials and test how well the witness does in testimony,” she said.

“The 30(b)6 notice does a pretty fine job of forcing settlement discussion before the deposition takes place and it locks in the testimony for now,” added Cole.

Hartley said that his main goal when going into a 30(b)6 deposition is to “get five or six points that the jury will remember if we try the case. And sometimes it takes a little bit and sometimes it takes a lot.”

“The notice has to be set forth and the scope of the notice has to be ascertainable—at least that’s what the rule says. It has to state what is requested of the witness with ‘reasonable particularly.’ ‘Reasonable particularity’ has been interpreted in different ways in different jurisdictions,” said Cole.

Hartley said he has found in many cases that, despite his efforts to present the specifics of the deposition, witnesses still come to the deposition unprepared. He then must choose whether to go through motion practice or to “roll with it” and do the deposition with the unprepared witness, Hartley said

“I generally try to roll with it rather than spend too much time in motion practice because motion practice doesn’t get my client anything … and I certainly do not get paid by the motion,” he said.

Witness Selection

Cole said that defense witnesses should be careful when selecting their witnesses in asbestos cases.

“The activities here took place so long ago, we’re talking 40 years ago at a minimum, but 50-60 years ago for many of these cases, when the actual corporate decisions were made about inclusion or replacement of asbestos,” she said.

“Oftentimes you have to educate that person as to the corporate background, relying on old depositions or old documents or company lore … and it’s increasingly difficult to find somebody—or even two or three people—who can be the corporate designees on various areas and have them actually perform very well,” explained Cole.

Defense attorneys also need to make sure that the witness who does have actual knowledge “compartmentalizes” his or her testimony, Cole added.

“It’s very difficult for somebody who has the actual knowledge and has come up through the development of products and the addition and then removal of asbestos from products to realize that he needs to talk in the corporate mentality from back in the relevant time period rather then in the present day,” she said.

“And compartmentalization—or contrasting knowledge that he knows now versus what was known then—is very, very difficult for a lay person to do. And it takes some time and preparation and effort and practice, and sometimes it’s even hard then to get it right,” said Cole.

Hartley said he tries to counteract the strategy of compartmentalization where possible. “It’s either right or it’s not right to do what was done. And hopefully, whatever the facts of the case are, I try to get some of those timeless questions with these folks so that compartmentalization … or perspective, isn’t really relevant to the conversation that we’re having,” he said.

Join HB for Trying an Asbestos Case: How to get the W on March 1, 2012 in Boston, and the Midwest Asbestos Leaders Symposium on March 16, 2012 in Chicago. Contact Brownie Bokelman for more information.