The Corporate "Know It All"
Our mothers always told us that “no one likes a know-it-all.” However, in today’s litigation environment, where electronic discovery and authentication of data have become important and too often dangerous, a know-it-all is exactly what companies facing litigation need. As Jonathan Sablone points out in his article, “Not Your Father’s Keeper Deposition”, litigators are now routinely using Rule 30(b)(6) depositions as a tool to authenticate data, determine whether another party has met its discovery burden and “to hijack entire cases”. See “Not Your Father’s Keeper Deposition." As a result, as Sablone accurately points out, the choice of the designated 30(b)(6) witness in the context of electronic and e-discovery is a decision that should be taken very seriously. The failure to do so can not only lead to unnecessary time and expense but, more importantly, can potentially endanger a party’s case.
Rule 30(b)(6) depositions allow an attorney to notice the deposition of an entity and the burden then shifts to the entity to designate one or more persons to testify on its behalf about the matters at issue. An entity can designate one person or it can designate multiple people and specify the matters upon which each person will testify. With matters relating to electronic records and e-discovery, savvy companies will take the time and expend the effort required to designate one or more witnesses who can testify about the relevant matters in a manner that is to the company’s advantage. This may be one “know-it-all” or several, each of whom is the “know-it-all” about a particular subject. Rule 30(b)(6) requires the witness to testify about information known or reasonably available to the organization. In other words, first hand knowledge of a matter is not required. This means that the company “know-it-all” can be prepped, thereby allowing a company to designate a person or persons that will make a “good witness.”
Much of the data stored on computers, such as the data stored in random access memory (RAM) and internet caches, is temporary and "ephemeral". Because these temporary, transient files are deleted as often as every few hours, it would seem that there would not be a duty to preserve them.