A lawsuit is filed regarding a serious accident occurred involving a passenger vehicle and tractor-trailer. The facts of the accident are in dispute, and
A lawsuit is filed regarding a serious accident occurred involving a passenger vehicle and tractor-trailer. The facts of the accident are in dispute, and both parties fully investigate the physical evidence, the electronic data, and the relevant documentation. All of the parties, witnesses, and experts are deposed. However, the question of who caused the accident is not the only issue at play. Plaintiff has alleged that the driver was unqualified and poorly trained, and that the trucking company cut corners regarding safety, and should not have entrusted a tractor-trailer to this driver. The trucking company states that the driver was fully vetted and properly trained, and that the company’s hiring and training policies are not only consistent with the federal requirements, but are the best in the industry. Plaintiff notices the deposition of the corporate safety representative to delve into all of these issues. So begins the case within the case…
The trucking company safety representative’s deposition is one of the most important elements of a trucking case. For the plaintiff, it is an opportunity to delve into the policies and practices of the trucking company and to determine if there is a true commitment to safety, or merely a brick wall of denial. For the defendant, while this deposition can contain a minefield of fair and unfair questions, it is also an opportunity to showcase the trucking company’s culture, values, and true commitment to safety.
Deposing the Corporate Safety Representative—Plaintiff’s Perspective
A well-known plaintiffs trucking attorney once said, “We want to show how useless the safety manager’s report is. We are looking to discredit everything he says because it is not accurate. The safety manager is not truly making people safer because he will not ever say his truck driver was at fault for the accident even if he is.” Blanket denials, in the face of clear and undisputed facts, can greatly undercut the credibility of the corporate safety representative. With proper investigation and preparation, the plaintiff’s attorney can maximize the usefulness of this deposition.
The deposition of the corporate safety representative should provide a wealth of information regarding the trucking company’s history, policies, and procedures. Further, thoughtful and thorough examination can lead to testimony showing that the trucking company cuts corners, puts profits before safety, and does not care about the public’s well-being. To this end, the following topics should be carefully explored:
• The safety officer’s training, experience, and qualifications;
• The company’s general hiring criteria for new drivers, including the practices for investigating the driver’s history with other carriers;
• The company’s routine for training drivers;
• The company’s employee manuals;
• The company’s general safety policies and procedures;
• The company’s inspection and maintenance practices for tractors and trailers;
• The company’s procedure for drivers to follow in the event of an accident, including what reports are generated;
• The company’s procedure for the safety officer to follow in the event of an accident, including what reports are generated;
• The safety officer’s actual communications with the driver following the accident;
• The company’s practices for comparing and contrasting the driver’s logs with other documents;
• The company’s practices for conducting medical and drug/alcohol testing on drivers;
• The company’s electronic systems for tracking drivers;
• The company’s practices for disciplining or otherwise addressing drivers after at-fault events (e.g., hour violations, log violations, and accidents);
• How the company’s driver-accountability practices compare to other companies in the industry;
• The company’s methods for monitoring its drivers;
• The company’s practices for conducting audits;
• The company’s hierarchy and corporate structure; and
• The company’s fleet size.
A good trucking lawyer should also become particularly familiar with the relevant Federal Motor Carrier Safety Administration (FMCSA) trucking regulations before taking a corporate safety representative’s deposition. You may be able to obtain evidence showing that the trucking company was not acting in compliance with the regulations. Specific areas of interest are as follows:
• Minimum reporting and recordkeeping requirements regarding accidents (1);
• Procedures for transportation workplace drug and alcohol testing (2);
• Disqualification of drivers (3);
• Limits on and recording of hours of service for drivers (4);
• Regulations regarding vehicle inspection, maintenance, and repair (5);
• Maintenance of driver’s safety performance histories received from previous employers (6); and
• Preparation of pre-trip inspections and reports (7).
Also, obtain and review company documentation for use in the corporate safety representative’s deposition, such as:
• The company’s safety manuals, employee handbooks, training documents, etc.;
• The driver’s safety record, qualification file, and discipline file;
• The truck’s maintenance and repair records;
• The driver’s inspection reports, bills of lading, weight tickets, hotel receipts, etc., from the trip in incident;
• Industry uniform documents and standards; and
• Photographs and videos, such as of the accident and overhead images of the area in which the accident occurred.
Be prepared to show any contradictions between the corporate safety representative’s testimony and the documentary evidence of the case. If the deponent admits the contradiction, you can show the disconnect between the policies in the manual and what actually occurs on the roadway. If the deponent denies the contradiction (and some will, even when presented with the information in black and white), build the record carefully to emphasize the folly of the denials. Such contradictions can be especially useful in front of a jury. The deposition of the corporate safety representative is one of the most important elements of the case; therefore, it is crucial to be properly prepared prior to the deposition.
Defending the Corporate Safety Representative—Defendant’s Perspective
When you prepare the corporate safety representative for a deposition, remember that what the representative does not know may be as damaging as what he or she does know. Furthermore, why the representative does not know about a certain issue may be most damaging of all. Much of the deposition (and the deposition preparation) will be focused on predictable elements such as the accident, the driver, the driver qualification (DQ) file, and other corporate safety documents and policies. However, when the first question after “What is your name?” is “As Safety Director for XYZ Trucking Company, do you know the names of the people killed in the accident we are here to talk about today?” the stakes become a bit higher. Luckily, when my client received this question, he knew all of the relevant facts of the case and was able to respond appropriately. Will you be as well prepared?
The rule. Rule 30(b)(6) of the Federal Rules of Civil Procedure (and most corresponding state rules) allows a corporation to designate someone who will testify on its behalf as to one or more specific categories of inquiry, identified with “reasonable particularity.” The rule requires the responding corporation to designate one or more representatives whose testimony will bind the corporation. Often it is thought that the designee is the person “most knowledgeable” or with personal knowledge of the category, but that is not the standard. In fact, the responding corporation has absolute discretion in choosing the witness or witnesses to testify on its behalf with regard to the subject matter identified in the notice. It is generally advisable to educate one or two representatives regarding all or most matters identified to avoid having to produce multiple witnesses, and to decrease the potential for inconsistent positions within the corporation.
The rule not only requires the corporation to designate one or more witnesses, but it also requires the corporation to prepare the witness(es) to testify not only on matters known to the corporation, but also on matters reasonably available to it. This requirement encompasses a duty to investigate. Thus, if the corporation cannot present a witness with personal knowledge, or chooses not to present such a witness, it must prepare the testifying witness to testify about facts within the corporation’s collective knowledge. Such testimony will be binding on the corporation. Further, the designee not only has to testify about facts within the corporation’s knowledge, but also the subjective beliefs, opinions, and interpretations of documents and events of the corporation.
In a trucking case, the safety manager or director is the most common corporate designee for purposes of a 30(b)(6) deposition. However, as noted above, the company can select the designee. Therefore, the initial preparation for such a deposition consists of selecting the proper individual to testify on behalf of the company. Once this selection is made, the deposition preparation can begin.
The traps. As obvious as it may seem, it is imperative that the designee is actually capable of testifying on the requested matters. A corporate representative’s inability to answer relevant questions regarding the designated material may be considered a “nonappearance” by the corporation and could prevent the corporation from presenting testimony related to the subject at a later point in the litigation. A better method, when the deponent is not comfortable binding the corporation on a matter that is arguably an expansion of the subject matter, is to merely have the witness identify the person who has better knowledge on the subject.
Another common trap is the blended question, which seeks to join the deponent’s individual answer and the corporation’s answer. For example, a corporate safety representative was asked, “What do you think that the corporation’s policy should be regarding testing for sleep apnea?” Plaintiff’s counsel then asked, in a corporate representative capacity, “Why has the corporation not adopted the proposed policy?” The confusion caused by blending the questions clearly works to the benefit of the interrogator to bind the corporation with regard to all of the testimony. In an effort to avoid such confusion, it is important to clarify which questions are being answered solely as an individual, and which questions are being answered on behalf of the corporation. Nevertheless, the opinion of someone in a safety role, whether it binds the corporation or not, can still be very damaging if it is not adopted by the corporation.
Preparation. As with most everything in life, there is no substitute for preparation. In preparing the corporate safety representative for a deposition, make sure he or she understands the rules (e.g., whether the representative can ask counsel for assistance, take a break and discuss his or her testimony with counsel, request documents to refresh his or her recollection, etc.). Even when dealing with an experienced and knowledgeable representative, be sure to cover all of the potentially relevant facts, details, and areas of concern.
Know the facts of the accident. As noted above, the facts include not just the date and location of the accident, but personal information about the injured or deceased. Knowing this information not only shows that the safety team performed an appropriate investigation, but also that the safety team (and, therefore, the company) care enough to learn about the other people impacted by the accident. If possible, have the representative travel to the scene or study photographs of the scene to become familiar with the details of the accident. Also, make sure the representative knows the weather conditions, the time of day, and what the driver was doing at the time of the accident (e.g., talking on a CB radio or cell phone, checking the mirrors, changing the radio, etc.).
Know the driver. In order to truly know the driver, the representative must investigate the driver’s hiring, training, work history, habits, dispatch requirements, and any other available information in order to anticipate plaintiffs counsel’s questions. For purposes of the litigation, the driver will be the face of the corporation. Knowing about the “skeletons in the closet” is critical to the corporate safety representative’s ability to address potentially problematic issues in a reasonable and articulate manner. The representative must be prepared to justify the driver’s hiring and retention through reliance on the application, references, and other documents in the DQ file. Also, if necessary, be prepared to discuss why documents that should be in the file are not there.
For example, plaintiff’s counsel may ask what documents should be in a company driver’s DQ file. After receiving a detailed list of required documents from the corporate safety representative, plaintiff’s counsel will present the involved driver’s actual DQ file, and will compare the contents of this file to the list of required documents provided by the representative. With proper preparation, the corporate safety representative will already know what is not there (if anything), and will be prepared to respond to the questioning in an informed manner.
Know the equipment. Just as the driver is often the face of the company, the equipment is the embodiment of the company. Knowing the make, model, and configuration of the truck and tractor is important. Knowing the maintenance and repair history is important. However, knowing the details and capabilities of the electronic data-gathering mechanisms may be the most important of all. In the modern era of GPS systems and engine control modules, information is gathered and stored regarding almost every aspect of driving—from hard braking events to speed and location to the condition of the tractor immediately before the accident. The corporate safety representative must be prepared to discuss the relevant equipment on the subject truck. Alternatively, if the interrogation becomes too technical or detailed, the representative must be able to refer the interrogator to a more knowledgeable person within the company.
Another potential trap involves comparing the capabilities of the on-board technology with the actual usage and application of the technology by the company. For example, in a deposition, plaintiff’s counsel asked the corporate safety representative if “hard-brake events” were indicative of unsafe driving. The representative responded that such events could be representative of an unsafe incident, under certain circumstances. Plaintiff’s counsel asked if such events were actively monitored by the company. The representative responded that the company was not able to do so. Then plaintiff’s counsel asked if the corporate safety representative was aware of a “simple add-on” (to the electronic control module) that could monitor and record hard-brake events. The representative was not prepared for the question and did not know about the existence or cost of the add-on. Thus, in a few short questions, plaintiff’s counsel established the relatively low cost of making a fleet safer, while undermining the credibility of the corporate safety representative. Detailed preparation could have helped the corporate safety representative to anticipate these types of questions, and to be prepared with an appropriate answer.
Know the policies and procedures. Even if the corporate safety representative wrote the policies and procedures for the company, it is important to review each and every policy and procedure in preparation for the deposition. Plaintiff’s attorneys compare notes and share information very efficiently. Therefore, even if you have not produced the documents in the current litigation, plaintiff’s counsel may have secured copies (or, worse yet, copies of prior inconsistent policies and procedures). Also, it is imperative to review the safety polices to ensure that the driver did not violate any policies; or, if he or she did, to be able to address those violations in an honest and forthright manner.
Know the safety department. When all else fails, plaintiff’s counsel may try to show that the company (which is often very large and sophisticated) has a very small (and poorly trained) safety department. Therefore, it is essential to confirm that the corporate safety representative knows the background, training, and capabilities of everyone within the safety department. Then, when plaintiff’s counsel asks about training or experience in one area or another, the corporate representative will be prepared to properly answer the question.
Knowing the rules, avoiding the traps, and preparing properly will ensure not only a smooth deposition, but a successful one as well. The corporate safety representative’s deposition—along with the driver’s deposition—is often one of the most important depositions in a case. Make sure that you treat it as such, and allow sufficient time for preparation, reflection, and more preparation.
1. 49 C.F.R. §§ 390.5, .15.
2. Id. pts. 40, 382.
3. Id. §§ 383.51, 391.15.
4. Id. pt. 395.
5. Id. § 396.3.
6. Id. § 391.53.
7. Id. §§ 392.9, 396.11.
This article was written with contributions from Michael L. Goldberg, a partner in the law firm of Fried Rogers Goldberg LLC in Atlanta, Georgia, and Kurt Rozelsky, a partner in the Greenville, South Carolina, office of Smith Moore Leatherwood LLP.