RIM Specialists on the Hot Seat:
What to Expect When Testifying

As spoliation claims become increasingly common in lawsuits, so, too, does the allegation that records and information management (RIM) programs are part and parcel of the spoliation. Claims in this regard generally fall into two categories: 

John Montaña, J.D.

1. The program was negligent or ineffective because it permitted destruction of material that should have been saved. The common allegation in these cases is that a litigation hold was either not properly in place or not properly enforced. Claims of this kind amount to allegations of gross negligence for failing to properly undertake a duty of preservation after the institution of litigation.Or, if the purported failure is claimed to be intentional, it is an allegation of willful destruction of evidence.
2. The program is itself a sham that was instituted as a device for depriving opponents in litigation of material to which they were rightfully entitled. This again amounts to an allegation of intentional, willful destruction of evidence.

In either case the organization’s RIMprofessionals are likely to find themselves on the hot seat. An opponent contemplating spoliation allegations will investigate to determine if any evidence supports the allegations, and that will necessarily entail close inspection of the program and its implementation. The close inspection, in turn, will inevitably involve the personnel charged with making and implementing RIM policy.

If you are one of these people – a records manager, IT specialist, or the like – you may find yourself deep in the middle of things, and what you know and what you did or sawmay be of great interest to the opposing party. You may, therefore, find yourself being asked to turn over documents and computer data, being deposed, or even testifying at a hearing or trial. This article will discuss the things you might expect to encounter should this occur.

Discovery:  What Can They Ask to See?

One of the great surprises to the uninitiated is the degree of intrusiveness of litigation. If your RIM program is the subject of spoliation claims, virtually anything that is potentially relevant to those claims is fair game for the other side. All of your information management policies and procedures, records retention schedules, legal hold policies, and related documentation are discoverable, and you should count on the other side asking for copies of everything.

Do not make the mistake of thinking that any of these documents are privileged information in any way – they are not, and a spurious claim that they are will only serve to reinforce suspicions that your organization is playing games with the rules. Similarly relevant and discoverable are box listings, document management and record management system indices and listings, destruction lists, purge logs, and any other evidence of activities conducted pursuant to the program.

That’s the easy stuff. There are many other things that a smart opponent will be interested in: e-mail, instant messages and logs, voice messages, meeting minutes and notes, and other informal data objects are all properly discoverable as well. They are also subject to a duty of preservation – once the issue of spoliation rears its head, items of this kind must be identified, segregated, and preserved until the issue is resolved or until the litigation is concluded.

If you are in any doubt whatsoever about how to handle these items – perhaps, even if you are not – legal counsel should be consulted. Loss, destruction, corruption, or alteration of these items after they have become relevant in a lawsuit would undoubtedly give rise to a very strong reaction from the other side – and very likely from the judge as well.

Another surprise for the uninitiated is the degree to which lawyers and paralegals are industrious and detail-oriented. Large lawsuits often involve production of very large volumes of records and electronic data. It’s tempting to think that they can’t possibly review it all in detail, but if that’s what you think, you might be surprised. A good paralegal is remarkably talented at finding the needles in the discovery haystack; a good trial lawyer is equally good at keeping track of large numbers of small facts and bringing them forward when needed to bolster his case, and of assimilating new concepts and theories. And, both may have experts assisting them. Thus, witnesses find themselves answering questions – good, tough, well-thought-out questions – about some detail on page 683 of your box listing. 

Understanding Trial vs. Deposition Testimony

All of which brings us to the subject of deposition and trial testimony. If your program is the subject of spoliation allegations, you may find yourself in a deposition, and you may also find yourself testifying at trial. What’s it like? What can they ask about?

First, let’s distinguish between a deposition and trial testimony. A deposition is an interview that occurs prior to trial. It happens outside the courtroom, usually in a lawyer’s office, but sometimes in other places depending on the circumstances and what is convenient for the parties. Depositions occur prior to the trial, often months or even years before. Trial testimony occurs during the trial in the courtroom in front of the judge and, if there is one, the jury. Both depositions and trial testimony are sworn testimony, and in both cases you have the obligation to testify truthfully.

Testifying in Depositions

Even though it does not occur in a courtroom, giving a deposition can be a stressful experience. You’ll be sitting in a room full of lawyers, along with a stenographer who records your every word, and maybe a videotape setup to record you as well. It may also be a lengthy experience. Although many jurisdictions have rules that place time limits on depositions, you may still find yourself on the hot seat for several hours or more, with only occasional breaks.

Depositions differ from trial testimony in that the lawyer can engage in fishing expeditions to find out if anything interesting turns up, can ask questions about matters that may not be later admissible at trial, and can formulate questions in ways that would not be permissible at trial. If something arises that may be improper or out of bounds, your lawyer may make objections, but you will usually have to answer the questions anyway. The answer may not be admissible later in the trial (hence your lawyer’s objection), but it is rare that you’ll be instructed not to answer the question. This generally occurs only when the answer would reveal privileged information such as advice from a lawyer.

The Lawyers’ Goals

When questioning a witness at a deposition, a lawyer has several goals in mind:

• Finding out facts that may be useful in conducting further investigations or at trial. The deposition might therefore lead to additional investigation, additional requests for documents, or depositions of additional witnesses.
• Getting the witness to commit to a particular set of facts or a version of events. If the version committed to is unhelpful, the lawyer may decide not to raise it at trial. If it is helpful, the lawyer will raise it to bolster his case. If you testify differently at trial, the inconsistency between your deposition testimony and trial testimony can be used to attack your credibility as a witness.
• Determining if there is inconsistency among the testimony of different witnesses. If two witnesses have different stories, at least one of them is wrong. Again, brought out at trial, this undermines the credibility of the witnesses.
• Sizing up the witness. The witness’s demeanor – nervous, confident, rude, friendly, smart, or dumb – affects how the lawyer will want to treat him or her at trial, and how a judge or jury reacts to the witness. Knowing in advance how a witness will act and appear helps the lawyer in planning, should the witness end up testifying at trial.

What Lawyers Can Ask

Lawyers can ask virtually anything connected with the RIM program or any other matter relevant to the facts of the case. If your organization has produced copies of policies, procedures, retention schedules, e-mails memos, or other documents, you may be questioned about any or all of them and asked about the existence of additional relevant documents. You may also be questioned about your knowledge of activities undertaken during the program, including the activities of others.

Other than that, virtually anything of interest to the lawyer deposing may come up. You may end up discussing your background and career, your general knowledge of records management, professional affiliations, criminal history, knowledge of co-workers, technical aspects of computer systems, and so on. You may also find yourself answering the same questions more than once. In the course of a multi-hour deposition, the lawyer may re-visit a topic, just to see if your answers remain consistent. Your own lawyer is likely to object, but, of course, you’ll still have to answer.

How Witnesses Should Respond to Questioning

Normally, your own lawyer will discuss the deposition with you in advance and give you advice on how to respond. The general rule, however, is simple: Keep it honest, keep it short.

• There are three good reasons to keep it honest.
• It's the right thing to do.
• You don't have to worry about keeping track of your story.
• You don’t have to worry about being charged with perjury.

Remember that deposition testimony is sworn testimony, just like in court. Remember also that lawyers are industrious and detail-oriented. They’ll check your facts, and they’ll remember your deposition testimony. If your facts are wrong, or if you get on the witness stand and change stories, they will notice, and they will call the judge’s attention to it, either by reading a verbatim transcript of your deposition testimony in court or by playing a video of your testimony.

There are equally good reasons to keep it short: You are not required to volunteer information beyond the scope of the question asked. Witnesses, both in depositions and trials, often feel the need to explain themselves or go off on a tangent talking about other things. This urge should be stifled – any additional talking is likely to lead to additional questions, which will then require additional answers. When a question is asked, listen carefully. Answer the question that was asked, but not the questions that might have been asked, or should have been asked, or may yet be asked. Then stop talking until another question is asked. If they’ve been grinding on for hours and you need a break to re-group, by all means, ask for it. Contrary to the way it may feel, it’s not intended as a torture session.

Testifying at Trial

Testifying at trial is likely to be much different from deposition. First, there are the obvious things:  It’s in a courtroom, in front of a judge and perhaps a jury. Beyond that, there are several fundamental differences:

• Unlike a deposition, fishing expeditions aren’t allowed. Any line of questioning not directed at the matters at hand will be objected to, and unless the questions can be tied to those matters, they won’t be allowed.
• Time may be limited. Courts block out a specific period of time for a hearing or trial, and the amount of time allotted to each witness is limited. Much though he might like to, the other side’s lawyer probably won’t be able to keep you on the stand all day unless your testimony is really critical.
• Questioning is focused. The fishing expedition happened at the deposition. The lawyers know (or think they know) what you are going to say, and they have specific things they want to prove. Carefully arranged sequences of questions will have been prepared in advance and will be directed at those specific points.

Even more fundamentally, your own lawyer will have a much more active role. At the deposition, you may have wondered why he bothered showing up – all he did was sit there and occasionally say “objection, go ahead and answer the question.” At the trial things are much different. If you’ve been called as a witness by your own organization, you will be called for direct examination for the purpose of establishing some set of facts. Your lawyer will ask a series of straightforward questions about those facts. There won’t be any curveballs here – your lawyer is trying to establish your credibility and get specific facts into evidence, and the goal is clear questions with clear answers.

The Opposing Lawyer's Tactics

After that, the other side gets to cross-examine you, and here things are much different:

• The lawyer gets to ask leading questions (questions that suggest their own answer). This is commonly done by asking if you agree with some statement the lawyer makes. You may find that the lawyer is doing most of the talking and you are reduced to saying “yes” and “no.” When a lawyer is doing this, it will have been carefully planned. The goal is to pin you down to a specific set of facts that you have agreed with, at the end of which he will hopefully have painted you into a corner on some important point. If you find yourself being asked to agree to things, listen carefully to each question before answering, and if you don’t agree, say so.
• If credibility is an issue, or if there are differing versions of events, the lawyer will try to make your testimony appear untrustworthy by pointing out discrepancies, contradictory testimony and documents, and so on. If you’ve changed your story, this is where the deposition transcript or video will be unveiled and you’ll be confronted with it. If you’ve changed it for a good reason, be prepared to explain that reason. Presumably, you won’t have changed it for a bad reason.
• If he can get away with it, the lawyer may badger you or ask questions very rapidly to try to get you flustered or confused. This is often done with very rapid fire leading questions that start out being easy to agree with. If you’re not paying attention and start agreeing too much, you may find yourself agreeing with things you didn’t mean to agree with at all. Or, the lawyer may play tough guy and try to beat you up a little bit to see if you fold. In either case, simply stay calm, and listen before you answer a question. Don’t let a few moments’ silence in the courtroom unnerve you and hurry your answer. Remember, there’s no timer – it’s okay to take a moment and think before you answer a difficult question, and it’s okay to say you don’t understand a question or to ask for it to be repeated, or to say you don’t know the answer.

Your Lawyer's Role

The second thing your lawyer will be doing is preparing for redirect examination, where he will work to repair any damage done during your cross-examination – and there will be damage. The whole purpose of the cross-examination was to damage the credibility of whatever it is you testified to during direct examination. The lawyer would not have asked the questions he did if he did not think they would accomplish this. Your own lawyer will have anticipated this ahead of time and prepared questions, but he will also be listening carefully during the cross-examination and willmake sure to address any issues that need to be addressed during the re-direct examination. 

There are several kinds of damage that may need repair:

After re-direct, there may be re-cross and another re-direct, shorter and more focused than the first, but in many cases, after re-direct you are done. You may also be called by the other side, perhaps as a hostile witness. If called as a hostile witness, the other side may ask leading questions on direct examination, so the effect is simply to reverse the order of events: The cross-examination comes first, followed by direct and then re-cross.

Growing From the Experience

As you can see, testifying in a deposition or trial can be a trying experience. However, by preparing mentally and keeping calm and collected during your testimony, you can limit the stress. You may even find the experience enjoyable, or at least an intellectual challenge. Whatever the case may be, remember – it’ll be over soon, and you’ll come out no worse for the wear, and maybe a little tougher for the experience.

John C. Montaña, J.D., can be reached at jcmontana@pelligroup.com.

From September - October 2008