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Arnall Golden Gregory LLP
Henry R. Chalmers and David J. Marmins, Editors-in-Chief
Anuj Desai, Executive Editor 

 Fall 2015


Rule 30(b)(6) depositions can significantly shape the direction of your case and settlement prospects. So, when you receive a 30(b)(6) deposition notice, you need to be sure you properly select and prepare your representative witnesses for the ordeal they’re about to face. In this issue of Litigation Insights, we offer helpful tools you can use to maintain control of the process and ensure your witnesses are ready for the challenges that await them.



Proven Strategies For Handling Difficult Deposition Questions
By: Henry R. Chalmers and Rick R. Fuentes, Ph.D.

Witnesses often don’t know what to do when under attack in their depositions. They want to maintain control and “stay on message,” but aggressive questioning can cause them to stall or, worse, give up and agree with their interrogator’s inaccurate spin. The proven coping strategies in this article can help witnesses crystallize and convey their underlying messages, while reasserting control over the process. 
More >

“That’s [Not] Privileged”: A Corporation’s Duty to Prepare a 30(b)(6) Witness Includes Sharing Knowledge of Legal Counsel
By: Jennifer L. Shelfer

Facts are facts, whether known by a company’s employees or its outside counsel.  Many companies (and their counsel) believe that facts learned by a company’s counsel are privileged and fall outside the purview of a Rule 30(b)(6) deposition.  In reality, if a deposition notice identifies topics that encompass facts a company’s counsel uniquely learned from her own investigation, counsel has an affirmative duty to ensure that company witnesses are prepared to relay those facts in their Rule 30(b)(6) depositions. Accomplishing this while avoiding inadvertent disclosures of counsel’s mental impressions, opinions, and strategy requires careful planning. More >

Be Thoughtful In Your Rule 30(b)(6) Deposition Preparation to Avoid The Threat of Sanctions
By: Jennifer L. Shelfer

Presenting an inadequately prepared witness for a Rule 30(b)(6) deposition can have significant adverse consequences for a company, from monetary sanctions to adverse evidentiary findings. An essential step to avoid these pitfalls is to carefully evaluate the Rule 30(b)(6) notice and properly object in advance to any overbroad or unreasonable topics. More >

The Apex Doctrine: Protect Your Corporate Executives From Harassment
By: Richard A. Mitchell

Parties sometimes notice depositions of their adversaries’ key executives or “apex” officials less to discover admissible evidence and more to harass the company and exert settlement pressure. Such tactics are common enough that many courts have adopted the Apex Doctrine to protect executives from such unnecessary depositions. Counsel for an executive in these situations should be prepared to challenge the necessity of the deposition, and to force the deposing party to pursue alternative means of discovery to avoid undue hardship on the company and its executive. More >

Practical Considerations in Identifying and Preparing Your Rule 30(b)(6) Witnesses
By: Richard A. Mitchell

Given the importance of Rule 30(b)(6) depositions, identifying the “right” witnesses to testify on a company’s behalf is critical. Although employees with personal knowledge of the noticed subject areas may seem like the best choice, witnesses do not require first-hand knowledge of those areas. Careful thought should be given to who will present well and commit the time and attention necessary to ensure the company’s interests are best represented in the deposition. More >



The Heritage Bank – Swift and Aggressive Discovery Strategy Secures Advantageous Settlement 

When a residential development stalled and the banking client’s borrowers defaulted, AGG attorneys David Marmins and Rebecca Lunceford took decisive action to sue on the debt and, at the same time, sue a guarantor that had fraudulently conveyed collateral property. A resolute discovery and summary judgment strategy led to a multi-million dollar settlement that included repayment of 100% of the debt, as well as attorneys' fees. More >

Privately-Owned Insurance Business – Smart Litigation Strategy Ends Anonymous Commercial Disparagement Campaign on Facebook

An unknown person accused a middle market insurance brokerage of being a “scam” on Facebook, and the disparagement was hurting the company’s industry reputation and efforts to expand. Anuj Desai and Drew Stevens acted swiftly to bring the page down by filing a "John Doe" lawsuit and uncovering the person’s identity through expedited discovery, which forced a settlement in favor of the companyMore >

UPPI, LLC – AGG Facilitates FTC Action That Ends Illegal Monopoly in Health Services Sector 

When UPPI, a network of radiopharmacies, sought to challenge anti-competitive practices by industry giant Cardinal Health that blocked network members from competing in certain markets, Allen Hirsch and Matt Covell connected UPPI to the FTC. A multi-year investigation ended Cardinal’s illegal monopoly and resulted in the second largest monetary settlement ($26.8 million) ever obtained by the FTC in an antitrust caseMore > 

Trustee Neil Gordon – Invoking Crime-Fraud Exception to Privilege Prompts Quick Settlement 

Acting on behalf of trustee Neil GordonSean Kulka began pursuing a fraudulent transfer case two years ago with a fascinating tale of deception that attempted to avoid $30 million in debt. After doggedly uncovering a trail of suspicious transfers and fabricated documents that implicated the debtor’s law firms, AGG obtained an evidentiary hearing for the production of several privileged documents under the crime-fraud exception, which led to a quick and favorable settlementMore > 



It's Time to Get Comfortable With Deduplication
By: Scott A. Wandstrat

Attorneys who have mastered the e-discovery process know that deduplication of ESI is critical to prevent wasted time (and attorneys’ fees) spent reviewing multiple copies of a document. And, if done correctly, any anxiety about “missing” a relevant document can be addressed by following an industry-standard deduplication process that relies on a document’s “electronic fingerprint." More >

To Save Money Later, Take Steps Now to Prepare for E-Discovery 
By: Scott A. Wandstrat

A proven way to contain e-discovery costs is to prepare your organization for e-discovery before the threat of litigation ever arises. By proactively implementing a record retention policy, creating data maps, preparing a legal hold plan, and taking other important steps, your organization can avoid much of the e-discovery anxiety and inefficiency that often plagues complex litigation. More >


Litigation Insights is published by Arnall Golden Gregory’s Litigation Practice Group. The information presented provides a general summary of recent legal and regulatory developments. It is not intended to be, and should not be relied upon as legal advice. For more information about the Litigation Practice Group, please contact Group Co-Chairs Henry R. Chalmers or Scott E. Taylor.
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