One of the lessons a young attorney learns once he begins the practice of law is that there is a major difference between the theory of law and the practice of law. The rules of law you study in law school are no different than those that exist in the “real world”, but the influence of factors having nothing to do with those rules often won or lost cases. Early on I endured many frustrating days where it seemed to me that the law was a secondary consideration.
Over the past few years, however, I have come to appreciate that this is not always a bad thing. Sometimes disregarding generic rules is what justice requires in specific cases. This is particularly true in the asbestos litigation.
Asbestos litigation is unique due to its “historical” nature. Due to the latency period involved in asbestos injuries, most cases involve exposure that took place in the 1960s through the 1980s. It involves products and companies that have not existed for several decades. Consequently, a defendant in asbestos litigation may lack the most basic knowledge of the company that made the product, as well as the product itself. That is not a concern in any other litigation. This distinction renders the application of state and federal “corporate witness” rules, modelled by Federal Rule of Civil Procedure 30(b)(6) a major challenge for asbestos defendants, and a major weapon in the hands of Plaintiff attorneys in asbestos litigation. In the present asbestos litigation climate, where peripheral defendants are being targeted as the number of viable defendants decreases, understanding your obligations to produce a corporate witness is vital.
Two articles that do an excellent job of laying out the challenges facing an asbestos defendant faced with a deposition notice for a corporate witness, and the need to revisit the continued application of Court Rules pertaining to corporate witnesses in the asbestos litigation context are Kent Sinclair & Roger P. Fendrich, Discovering Corporate Knowledge and Contentions: Rethinking Rule 30(b)(6) and Alternative Mechanisms, 50 ALA. L. REV. 651 (1999) and Corporate Representative Depositions, 65 Baylor Law Review 938 (2013).