In business litigation, the question often arises which person among the employees of a corporation, limited liability company, partnership or association should be deposed in order to most effectively discover what information a business entity which is a party to the litigation has regarding the dispute, and what kind of testimony the entity would present at trial. Sometimes this can be obvious, as in cases where it is clear who was involved in the transaction at issue. Often it is not, however, and often a litigant does not become aware of important witnesses until depositions and discovery are well under way.

Wisconsin law (and the Federal Rules of Civil Procedure) provides a valuable tool which may be used by a litigant in these situations. Instead of seeking the deposition of a particular individual employee of an entity, a party seeking discovery may require the business entity itself to identify and produce the witnesses it considers best able to answer questions on particular topics. This is done by serving the business entity with a Notice of Deposition indicating that the entity’s testimony is sought regarding topics specifically identified in the Notice. The entity is then required to identify, and produce for deposition, those among its employees best qualified to answer questions on those topics.

There is an obvious benefit in utilizing this procedure. If a party seeks to depose a particular employee of the entity, believing that employee is knowledgeable of the issues being litigated, the employer-entity may maintain in the future that such employee is not really knowledgeable of the circumstances, or not as knowledgeable as another of its employees. It could also argue that the employee actually deposed lacked the authority to bind the entity by his testimony, rendering the deposition useless.

Once the entity has been required to select and identify the employees it considers best qualified to be deposed, however, it will not be in a position to claim later that those employees were not qualified, or were not authorized to serve as witnesses for the entity.

Any litigant involved in business litigation should give serious consideration to the use of this discovery tool.