Vail law: The process of discovery
Vail, CO, Colorado
Say you take a drink from your soda, and find your lips pressed neatly to a mouse. Or, perhaps, as seems all the rage lately, a severed human finger rises on the bubbles to kiss you with a ghostly tap. The experience is frightful.
You violently aspirate your flavored carbonated sugar water all over kingdom come, wipe the back of your hand across your foaming mouth and break into a sweat. You’re woozy. You get up to wash your mouth out but a distinct queasiness has gripped you. As you come to your feet, you sink to your knees. The world is spinning like a carnival madhouse. As your going down, the world is rushing up. You conk your noggin on the edge of it doesn’t matter what and come up with your bloody head in your hands. Then things get worse.
Over the days and weeks and months that follow, you can’t shake the image of the mouse or finger puckering at your lips. You seek out therapy but your anxieties refuse to abate. You’ve lost your mojo and you’re feeling punk’d. You decide “Enough of this, it’s time to sue.”
You find a bulldog attorney. You file suit. You begin the process of discovery, the process by which information relevant to your case is gathered. There is “paper discovery” which consists of formal questions sworn to under oath and requests for the other side to identify and produce those documents relevant to your requests.
There is also discovery which consists of case building and information gathering. This can include physical and mental examinations (you, after all, have put your physical and mental well-being into play and the other side may well have the opportunity to verify your physical and mental bona fides by appropriate poking, prodding, testing and inquiring), and also depositions. Which, circuitously, brings us to our topic.
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A “deposition” is testimony of a witness taken under oath, but not in open court. Deposition takes place when an attorney questions a witness about the facts within that person’s perception. A deposition is a formal affair which includes having the witness sworn in by a court reporter who records the interchange of questions asked by the attorney and responses offered.
Depositions can last the best part of a day. As the testimony offered is offered under oath, the transcript of a deposition may be used at trial.
As depositions are targeted to get at certain kinds of information, what then of our mouse or finger in a soda bottle? Since at least part of what we want to know is how it got there, a person knowledgeable to that issue must be made available to suffer and respond to the verbal inquisition. That, in Colorado is where Rule 30(b)(6) comes in (more precisely, Colorado Rules of Civil Procedure – C.R.C.P. – 30(b)(6).
The Rules of Civil Procedure dictate the process by which a case is prosecuted. All states and all federal courts have similar rules. They are to law what the rules of football are to football or the rules of Hoyle are to cards.
So when you sue a corporation, partnership, association or other legal entity, who do you depose? How do you get to the guy who knows (or should know) something about the mouse or finger in the bottle?
Colorado rules state that you give notice that you want to examine the party within the company most knowledgeable about how a mouse or finger might have slipped into a bottle. The company must then designate someone to testify on its behalf who would have knowledge of the matter. You don’t have to know who knows, you must simply designate that you want to speak to the guy who knows about how a mouse or finger might creep into a soda bottle and, viola, the repository of such corporate wisdom is produced.
Now, it’s best not to imbibe mousies or severed human fingers. But if you should and should suffer grievously thereby, know that the law stands by to assuage, address and remedy your harms.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. He is a member of the Colorado State Bar Association Legal Ethics Committee and is a former adjunct professor of law. Robbins lectures for Continuing Legal Education for attorneys in the areas of real estate, business law and legal ethics. He may be heard on Wednesday nights at 7 p.m. on KZYR radio (97.7 FM) as host of “Community Focus.” Robbins may be reached at 926-4461 or by e-mail at firstname.lastname@example.org.