I.

I.

INTRODUCTION

Recent decisions involving broad-based discovery of evidence, within the nexus of allegedly egregious defense career and loosened privilege in bad faith suits, highlight the ne to actively uphold depositions directed at those ones involved in the claims proces Usually identified subject to the rubric, "persons most knowledgeable," defense forethought must become well-versed in the pitfalls coupleed with depositions of such [i]role[/i]s and vigorously defend against misuse of this proces likewise as to avoid unintentionally expanding the extent of discovery.

II.

THE "PERSON mostly KNOWLEDGEABLE" DEPOSITION

Depositions of "person greatest in quantity knowledgeable," taken pursuant to Federal authority of Civil Procedure 30(b)(6),1 perplex specific challenges to defense deliberation Prior to the enactment of order 30(b)(6), the Federal Rules distinguished between depositions of organizational officers, directors and managing agents, and those of other employee or representatives of an organization. sole the first category of living bodys could be said to integrate "knowledge of the organization," as it was that their depositions were admissible for any plan Under that classification, parties sometimes faced difficulties determining whether a particular witness was included within the category.2 F R CIV. P 30(b)(6) eliminated that difficulty, substituting instead a mechanism by dint of which one party could beseech the deposition of a representative of another party who was "most knowledgeable" about a specified area of inquiry.3

Although control 30(b)(6) was enacted to address enigmas inherent in the earlier act this rule carries unique enigmas of its own. For example, when the organizational party rejoins by designating a representative, that designee's testimony becomes binding on the subject of the organization as to the bulk of the requested testimony.4 This limitation can be particularly problematic if the designee is not knowledgeable about the beseeched areas of testimony or replys to questions outside the sweep of the notice. Other affairs affecting Rule 30(b)(6) are the free course of the notice itself, requirements regarding witness designation and preparation, and questions outside the length of the notice.

Given these potential pitfalls, defense advice must be particularly vigilant when defending the 30(b)(6) deposition, taking care to guard against misuse of the proces while simultaneously utilizing defense strategies that are customary to all depositions. Although the 30(b)(6) deposition brings with it special considerations, the ordinary strategies and techniques applicable to defending all depositions apply equally well. instruction must attend to all applicable dominions both formal and informal, in order to minimize the possibility that the court will ignore objections directed to the guard of opposing counsel. Similarly, admonition should adhere carefully to the judicial prescriptions and methods articulated at the Rule 16 conversation - especially those regarding the court's estimations for deposition disputes.

III.

THE NEXUS REQUIREMENT AND WORK-PRODUCT PRIVILEGE

In State Farm Mutual Automobile Insurance Co v Campbell,5 the superlative Court held that evidence of a defendant's lawful out-of-state mode of action may be probative in determining the amount of punitive damages, for a like reason long as the conduct had "a nexus to the specific harm sustained by the plaintiff."6 A Pennsylvania district court later applied the nexus requirement to a beseech for broad-based discovery in Saldi v Paul venerate Life Insurance Co.7 The federal court there determined that the nexus requirement was satisfied where the plaintiff at handed evidence, in the form of bad faith litigation from other states, that the insurer had a practice or pattern of allegedly egregious guidance that was applied to the plaintiff. This prima facie showing of a pattern and practice of bad faith explained the door for additional discovery into the insurer's internal practices and policies. The court noted that it might have considered objections or assertions of privilege, level in the face of this prima facie showing, still that it did not do with equal reason because the objections raised involved general, rather than specific, assertions.

Likewise, when applying similar discovery provisions, the Florida predominant Court in Allstate Indemnity Co v Ruiz,8 held that all documents pertaining to the underlying claim were discoverable, including those that would otherwise be harbored by the work-product doctrine. However, the court also noted that litigants who chose to bring coverage and bad faith claims simultaneously must calculate upon to be restricted from discovering work-product until the resolution of their coverage dispute.

These cases are instructive because they highlight the potential for broad-based discovery and the concomitant ne to assert specific objections and privileges.

IV.

MARKING THE BOUNDARIES

Delineating the boundaries of discovery is particularly important when dealing with issues of bad faith and punitive damages, as illustrated on the risks identified in Campbell and Saldi. That being said, the "broad-based" discovery permitted in Saldi is not without limitations. In Saldi, the plaintiff had powerful evidence of a pattern or practice of bad faith in the form of documents produc in other actions, including a prosperous claim in another jurisdiction. Beyond that, the Saldi opinion provides no indication of what evidence would appropriate the standard permitting such broad-based discovery. Consequently defense opinion should determine the extent of the evidence already in the plaintiffs' possession and challenge discovery based forward its sufficiency to meet the Saldi standard. Furthermore, while Ruiz raises the specter of discovering evidence normally veiled by the work-product and attorney-client privileges, defense instruction must be aware that of the like kind discovery is not appropriate when bad faith and coverage actions are combined. more [i]or[/i] less courts, for example, hold that as it is discovery is not permissible unles the defendant also states the advice of counsel at issue.9