Depositions are a Universal Constant in Litigation

If there are two parties fighting in cases in civil litigation, family court, and probate disputes, there will be at least one deposition. A deposition is an opportunity to discover facts, preserve testimony, and prevent perjury.  It is also a chance to look at a witness in the eye while they are under oath.  

PMK Depositions  

Person Most Knowledgeable (PMK) depositions are opportunities to depose a corporate representative who is qualified to speak on specific topics listed in a deposition notice. See, Cal. Civ. Proc. Code § 2025.230. Noticing parties often include requests for production of documents or electronically stored information. Cal. Civ. Proc. Code § 2025.280. If a deponent fails to answer questions or produce ESI under their control, the requesting party can bring a motion to compel production of those records. Cal. Civ. Proc. Code § 2025.480.  

Motion to Compel Coworkers Names  

In an employment discrimination suit about a hamburger restaurant, the plaintiff brought a motion to compel testimony and documents about their former coworkers that were not provided at a PMK deposition. Hernandez v. Thana, Inc., 2023 Cal. Super. LEXIS 12528.  

The plaintiff sought the names of the plaintiff’s coworkers. Defense counsel objected, claiming that the answer would violate the privacy rights of third parties and instructed the witness not to answer. Hernandez, at *2.

Nevertheless, the court ordered the defendant to answer the question on the names of the plaintiff’s coworkers, based on a three-part test on 1) whether was a legally protected privacy interest; 2) there was an objectively reasonable expectation of privacy in the circumstances; and 3) if there was serious intrusion on the protected privacy interests. Hernandez, at *2-3.

As with any legal test, meeting all three elements is a good indication for winning a motion. However, there can be other balancing factors for granting limited disclosure.  

The first two elements were met by the defendant. The California Constitution gives everyone in California a right to privacy, and protecting those rights is reasonable. However, merely providing the names of the coworkers did not violate those privacy interests, because the names were not a serious intrusion under the three-part test. Id.  

Motion to Compel Records with Coworker Contact Information

The plaintiff sought records—beyond those produced at deposition—that contained contact information for the former coworkers. The court held that disclosing the contact information would be a serious intrusion into protected privacy rights. Hernandez, at *3. However, the analysis did not end there.

In the balancing of interests between privacy vs disclosure, the court considered "the strength of the countervailing interest sufficient to warrant disclosure of private information varying according to the strength of the privacy interest itself, the seriousness of the invasion, and the availability of alternatives and protective measures." Hernandez, at *3, citing Williams v. Superior Court, 3 Cal. 5th 531, 555-56 (2017).

The court found both the need for the information and the privacy interests at issue required a protective order with limited production of the information. The court held that 1) the defendant had to disclose the contact information of four specific employees; 2) that the employment form had to be produced with the names of the employees, but all contact information was to be redacted. Hernandez, at *5.  

Motion to Compel Spreadsheets in Native File Format

Specifying the form of production in document requests is a lot like ordering a hamburger: you can state how you want it.  

The defendant produced a spreadsheet as a PDF. The PMK witness stated that the spreadsheet was ordinarily maintained in native file format.  

The court explained that ESI must be produced in the "form or forms in which it is ordinarily maintained or in a form that is reasonably usable." Hernandez, at *6, citing CCP § 2031.280(d)(1).

The court held that producing an Excel file as a PDF is not producing the ESI in a reasonably useable form. Hernandez, at *6. The court further opined that the metadata would have highly probative evidence on possible intent for the plaintiff’s employment termination depending on the creation date of the spreadsheet. Hernandez, at *6-7.  

Logikcull Insight

This is a case where a PMK deposition identified subjects for the witness. It highlights how there is almost always a request for production with a PMK deposition notice. These requests for production usually have different requests than separate document requests.  

Preparing responses to a PMK deposition notice requires searching for documents and ESI based on the deposition notice. It is highly likely that any responsive documents have already been produced. In those situations, providing a document index with the requests and corresponding bates numbers can meet the production requirements.  

In many situations, searching for documents that are relevant to deposition topics can identify a PMK witness or witnesses. There are times when it takes more than one PMK to be designated for all of the stated topics. Imagine topics that overlap between the HR and It teams. It is possible there might be one witness who can testify, but it might take two.  

Logikcull helps teams respond to PMK deposition notices by identifying records for topics and requests for production. Consider the following requests for production:

PMK RFP 01: Produce records with sightings of triangular UFOs.

An “Advanced Search” can be created based on keywords for starting the search for responsive records.  

This search had two hits for review.  

Another approach is to leverage the GenAI search abilities of ASK in Logikcull. Instead of using keywords, enter a sentence to start your search.  

ASK provides a summary of the search hits with citation to the supporting documents allowing you to verify search results.

Logikcull can help lawyers focus their analysis to identify responsive records for depositions, whether it is with traditional search strategies or new techniques with GenAI powered searches with ASK.