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‘Person Most Knowledgeable’: Be Prepared to Discuss Company Issues During Deposition

Construction Practices Newsletter

April 2007

Let's say that you have been sued for your work on a project completed five years ago. A year after you were named as a party to the lawsuit, your attorney sent you a letter informing you that another party wants to take a deposition of the person at your company who has the "most knowledge" about the job.

What if the "person most knowledgeable" no longer works for you? What if you are the "person most knowledgeable" but you cannot remember anything about the particular job? What should you do?

First, you should follow the advice of your legal counsel. No article can take the place of your attorney's sound advice.

Nonetheless, this article can provide you some background information about a "person most knowledgeable" (PMK) deposition, particularly when there currently is no "person most knowledgeable at your company." You or one of your employees should not show up at the deposition without any preparation, shrug your shoulders and answer "I don't know" to every question asked. Courts will not tolerate "stonewalling" by a party who fails to produce a witness who should be knowledgeable based on access to information or documents. Appearing at the deposition with no documents or without any knowledge of whether documents exist is a big mistake. It likely will result in a court order compelling a witness to reappear for a second day of deposition with documents and with proof that the witness has done something to familiarize himself or herself with the areas of his or her supposed knowledge.

California law emphasizes that the obligations on a party producing a PMK are imposed even where a company went bankrupt and was forced to lay off employees, including employees who had personal knowledge of facts relating to a specific project. In one case, a defendant company produced three individuals but did not produce any documents. These individuals testified that they had very little knowledge about specific events leading to the lawsuit and had no knowledge about more general matters, such as company policies and the contents of company files. They could not even identify company files shown to them by the questioning attorney.

The employees should have been able to identify company files when shown the files, particularly when the witness was asked to produce company files. The witnesses should have been familiar enough with the files to answer questions abut the contents. Based upon information readily available, employees should have had general knowledge about the subject matters listed in the deposition notice.

Clearly, an attorney producing a "person most knowledgeable" witness in response to a detailed list of subject matters and documents to produce is obligated to prepare his or her witness adequately, even where the "most knowledgeable" witnesses are not longer employed or under the control of a person or company. Otherwise, sanctions will be imposed against the attorney and, possibly, against the witness.

The law provides that if a witness "cavalierly" fails to answer questions that are specified in the deposition notice or subpoena, the noticing party may file a motion to compel answers. If the court determines that the answer sought may lead to "admissible evidence," the court will order the information to be given at a second deposition. In this instance, the court must impose a monetary sanction against the party compelled to answer unless it finds that the witness acted with substantial justification or that other circumstances make the monetary sanction unjust.

If "stonewalling" continues after the court issues an order compelling answers, the court may impose sanctions even more serious than ordering the producing party to pay.

Bottom line? Learn as much as you can by reviewing job files. If you cannot locate project files, search thoroughly for the files so you can honestly testify that you searched "high and low" for the documents. Otherwise, the court may impact your bottom line by ordering you to pay for the other side's legal fees and costs for taking the deposition, or even worse, issue a sanction that severely weakens your defense at trial and resulting in a judgment being entered against you.

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