WHAT DISCOVERY IN A PREMISES LIABILITY CASE SHOULD BE CONDUCTED?
The process of obtaining the facts and evidence to be presented at the time of trial is known as the “discovery” process. Discovery in premises liability cases is critical. The parties exchange information and learn about the strengths and weaknesses of the case. Anything that is relevant to the claims or defenses is discoverable. Even if certain information or documents would not be admissible at trial, it may still be obtained if reasonably calculated to lead to the discovery of admissible evidence. The purpose of discovery is to guarantee a fair trial and to prevent surprises form occurring at trial. The discovery phase can span from months to years, depending on the complexity of the lawsuit. Typically, photographs, accident reports, and design plans and any modifications will be requested in discovery.
Plaintiff’s counsel should refer to the California Civil Jury Instructions CACI Nos. 1000-1012 regarding premises liability cases. These jury instructions lay out the specific law to be read to the jury at the time of trial. The jury instructions are the building blocks for preparing written discovery and in phrasing deposition questions which can later be used at trial.
Deposition Of The Person Most Knowledgeable (PMK)
In a premises liability case, it is typical to conduct a deposition pursuant to Federal Rules of Civil Procedure (FRCP) 30(b)(6) if the case is in federal court or pursuant to California Rule of Civil Procedure 2025.230 if in state court. These types of depositions are referred to as Person(s) Most Knowledgeable (PMK) or also referred to as the Person(s) Most Qualified (PMQ). The deposition of the PMK is critical discovery in a premises liability case.
California Code of Civil Procedure section 2025.230 provides that upon a notice that “describe[s] with reasonable particularity the matters on which examination is requested … the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.”
Federal Rule Civil Procedure 30(b)(6) states as follows: “In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the
matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify.”
The PMK deponent binds a corporate entity defendant. The designated deponent speaks for the corporation defendant. It is always good practice to phrase the categories in the deposition notice as broad as possible for which the designated PMK deponent will provide testimony. The PMK has a duty to testify as to any information “reasonably available to the deponent.” This is a powerful requirement because the PMK represents the deponent entity’s best knowledge about a certain topic. Also, when a request for documents is made with the notice, the witness is “expected to make an inquiry of everyone who might be holding responsive documents or everyone who knows where such documents might be held.” Maldonado v. Superior Court (2002) 94 Cal.App.4th 1390, 1396.
Most PMQ and PMK depositions will be from the defendant. But it is important to know that the “deponent” does not have to be from the defendant. It can also be from a third party. The PMQ deposition must then be noticed via subpoena. The PMQ deposition of a third party should be taken if the plaintiff’s counsel is considering substituting that party as an additional defendant in the case. The party can be amended into the case as a “Doe defendant”. The PMQ deposition is needed to determine if there is sufficient information to pursue a cause of action.
During the deposition, it is good practice to read the PMQ category into the record and ask the deponent the following:
1. When did you become aware you were going to be the PMQ in this category?
2. Did you review any documents in preparation for this deposition?
3. What were those documents, where were they located, how were they procured (i.e. were the documents provided in their ordinary course of business or through counsel)
4. Did you bring the documents to the deposition?
5. Can the documents be easily produced if requested?
6. Did you talk to anyone other than counsel in preparation?
7. What was the content of those conversations?
8. What else was done to prepare to be the PMQ?
9. Was there any information that you sought in preparation for this deposition that you could not obtain for any reason?