Defense and Corporate Witness Depositions

The safety manual may be an easy exhibit for the representative to explain. An inspection log can be harder. Someone had to create the entries, and the witness may not know who that was or when the last inspection occurred. Counsel needs to ask those questions even after obtaining a clear explanation of the written rule.

For the broader Texas injury case-value and litigation framework, see the Texas injury claim value and litigation hub.

Give the organization a clear topic notice

When seeking testimony from an organization, describe the subjects with enough detail that the organization can identify and prepare a witness. Texas Rule of Civil Procedure 199.2(b)(1) requires reasonable particularity in the matters for examination. The organization designates one or more people and identifies what each will address; the designated witness testifies about matters known or reasonably available to the organization. Read the current Texas Rules of Civil Procedure and the case-specific orders before drafting the notice.

The incident file helps counsel choose the topics. A report that refers to video may leave unanswered who watched it and what became of the recording. A staffing dispute may require testimony about the decision and the records behind it. Document retention and the search for responsive material may also need to be addressed. Describe the subject closely enough for the organization to prepare. An indiscriminate demand for testimony about every employee and every policy can obscure the matters that actually need an answer.

Get the source records before asking for explanations

An incident report is only part of the file. The policies and system manuals may explain what should have been recorded; logs, schedules, inspections and video may show what was recorded. An organizational chart can help identify the people responsible. In a trucking case, counsel will also want the dispatch and electronic logging material, vehicle records and the driver’s training and inspection records. Check the time zone and date shown on each source. An exported file may need an explanation of its format, edits or missing intervals before a comparison is reliable.

Before turning to the incident entry, ask about preparation. What did the witness read, and who supplied those materials? Were other sources searched? Does the organization have more records? Then establish how someone makes an ordinary entry in the system. Ask when the entry is saved, who can edit it and whether a later correction remains visible. With that explanation in hand, examine the entry for this event.

Use a sequence that tests the record

The questioning can follow the record from creation to use:

1. Identify the exhibit and authenticate the system that produced it.
2. Have the witness explain who makes an ordinary entry, when it is saved and how corrections appear.
3. Establish the event time and confirm the time zone.
4. Walk through the relevant entries, missing intervals and any edits or export questions.
5. Compare the account with earlier statements.
6. Ask who else has knowledge and identify documents that still need to be requested.

Find out who received the policy. Training records or an acknowledgment may help answer that question; the manual alone cannot. The next question concerns performance of the required task. Ask what record it would leave and who would review an exception. A company can have a written procedure without having followed it during the event being litigated.

Keep the questions tied to the disputed issue

Imagine the witness has agreed that the store requires a sweep every hour. Now show the records for the two hours before the injury. In this example, the witness finds no sweep entry. Ask what an employee ordinarily records after a sweep, where the company searched and whether the entry could be elsewhere. Obtain the policy too. Those answers may give the missing entry significance, but they do not dispense with proof of notice or the other elements of the claim.

There is a reason to ask who watched the video before the report was written: that person may have relevant knowledge and may need to testify. By contrast, an invitation to call the company negligent may reveal little about the event. A representative who cannot answer a properly noticed topic presents a different problem. Document the unanswered matter and find out what preparation and searches took place. Any request for a procedural remedy must be grounded in the applicable rules and case orders.

For Texas trial counsel: finish with a record plan

Keep a list during questioning of documents the witness mentions but does not have. Return to it before the deposition ends. Confirm what will be produced and who or what system may supply the missing information. Check the source of the witness’s answers as well. After the session, compare the transcript with the video, incident report, logs, discovery responses and testimony from others. Record page-and-line references for discrepancies so counsel can decide whether a further request or another deposition is warranted.

There will sometimes be unanswered questions at the end. Preserve them as unanswered questions. A gap in the witness’s knowledge should not become a factual conclusion in the case summary. With that distinction intact, the transcript can be evaluated alongside the other evidence for mediation, motion practice and trial.

Related guidance

See How Texas Injury Claims Are Valued and Litigated for the broader evidence and damages framework behind these deposition questions.

For the firm’s Texas truck-accident practice, see the live practice page.

This is general information about Texas injury litigation, not advice about a particular deposition or case. Discovery obligations, admissibility, procedural remedies and outcomes depend on the facts, orders and applicable law. Reading this article does not create an attorney-client relationship.