By Andrea C. Mack, Senior Associate
Who from an insurance company may be deposed during litigation, and why?
There are two avenues a plaintiff may attempt to conduct your deposition, either through Florida Rule of Civil Procedure (FRCP) 1.310(b)(1) or FRCP 1.310(b)(6), and it is important to identify which method the plaintiff is utilizing in order to determine why you are being deposed and what to do next.
First, FRCP 1.310(b)(1) allows a plaintiff to identify a witness by name (“Amy Adjuster”) or by a general description (“the litigation adjuster”). The (b)(1) witness is usually factually involved in the claim, such as a claims handler or adjuster. The testimony a (b)(1) witness gives during a deposition is considered his or her personal testimony, and it does not necessarily represent the position of the insurance company itself. Because of this limitation, a plaintiff is most likely conducting a (b)(1) deposition to discover the factual history of the claim.
In contrast, FRCP 1.310(b)(6) provides that a plaintiff may depose a witness without identifying the individual witness by name or general description. Instead, a plaintiff is required to “designate with reasonable particularity” those topics on which he or she wants to question a representative, and then it is up to the insurance company to determine who will testify as those topics at deposition. The (b)(6) witness speaks for the company regarding those topics. The purpose of the (b)(6) deposition is to discover the insurance company’s knowledge, not what the witness knows.
Upon receipt of any deposition notice, it is important to identify whether you are being deposed as a (b)(1) witness or a (b)(6) witness not just to assess why the plaintiff is conducting your deposition, but to ensure you are properly prepared to testify. For example, if you are a (b)(6) witness, a court may sanction your insurance company if you are not prepared to testify as to the designated topics. In fact, some federal courts have held producing an unprepared (b)(6) witness is “tantamount to the failure to appear” at the (b)(6) deposition. Another important distinction is that the (b)(6) transcript can be used at trial, for any purpose, regardless of whether the witness is available to appear at the trial.
Finally, if you do receive a notice for a (b)(6) deposition, you may determine that another representative is better suited to testify, as it is ultimately up to the insurance company (not the plaintiff) to determine who will attend the deposition. Determining who to produce as a witness for a (b)(6) deposition is an important decision for an insurance company because (b)(6) testimony is binding on the corporation, and no insurance company would want (b)(6) representatives providing conflicting testimony in various cases. Also, in selecting a (b)(6) representative, it is important to note the (b)(6) witness is not required to have any personal knowledge regarding the designated topics; instead, the witness only may have obtained knowledge in preparation for the deposition. This is in contrast to a (b)(1) deposition in which the witness is testifying as to his or her own personal knowledge.
In sum, the differences between being a (b)(1) witness and a (b)(6) representative are significant and have many ramifications. Thus, when you prepare for a deposition, it is important that you identify whether you are a (b)(1) or (b)(6) witness so that you ensure compliance with all of the responsibilities that come with such a designation in addition to gaining insight as to why your deposition is being conducted.
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