July 23, 2021

Depositions often provide essential testimony that can make or break a wage and hour case, meaning thorough questioning, deep research of the opposing side's case and in-depth client preparation are crucial for employers and workers as well as their counsel, attorneys say. 

Here, Law360 shares some best practices that lawyers can use to ferret out important information and get clients ready for a pivotal step in the litigation process. 

Know What You Want to Know 

Both sides of the bar agree that depositions should be directed at obtaining information that could bolster one's own case or poke holes in the case being constructed by the opposing party. 

Worker advocates often seek information from employers using Section 30(b)(6) of the Federal Rules of Civil Procedure, which requires organizations to designate people to testify in depositions on the organization's behalf. 

"I'm a big fan of Rule 30(b)(6) depositions," said Christine Webber, a partner at worker-side firm Cohen Milstein Sellers & Toll PLLC. "You can get the information you need and the company is required to find somebody who is knowledgeable, or get the knowledge to somebody and prepare somebody with the information." 

In wage and hour cases, worker advocates typically want to know about the details of employers' timekeeping and pay systems, Webber said. And in class and collective actions, which require workers to prove they were affected by common policies, 30(b)(6) depositions can be particularly helpful. 

"They keep the focus on what's the practice overall," Webber said. "Somebody's got to be able to speak to the big picture." 

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Study Up on the Other Side 

Since depositions are in large part about obtaining new information, it can help to have a good handle on what's already out there, attorneys said. 

Worker advocates can benefit from knowing which of an employer's officers or managers would be able to testify on specific topics relevant to the case, Webber said. Having an idea of who knows what can head off attempts by employers to offer up witnesses who aren't familiar with the topics workers want to ask about, she said.

Additionally, knowing more about an employer can help worker advocates focus the deposition on similarities in workforce-wide policies when employer representatives underscore the idiosyncrasies of their implementation of those policies, Webber said. 

"If you depose somebody whose area of supervision is just one office or one facility or whatever, then they can easily say, 'All I can tell you is what we do in my little corner of the universe,"' she said. 

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Get Your Client Ready 

Because attorneys tend to prepare so thoroughly for taking depositions, counsel for the deponent should make sure their client is ready to handle the grilling, attorneys said. 

Workers often find the deposition process "intimidating" and "uncomfortable," Webber said, emphasizing that advocates should help workers feel empowered to ask for clarification if they don't understand something. 

"Whenever you have witnesses answering a question that they don't really understand, bad things tend to happen," she said. 

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