Last week a federal judge in Galveston ordered the CEO of British Petroleum, Lord Browne to give his deposition in connection with the case arising out of the explosion at the BP refinery in Texas City. The explosion resulted in 15 deaths and numerous injuries. Lawsuits arising out of the accident are pending in both the State Courts of Galveston County, Texas and the Federal Court in located in Galveston.
The attempt to take the deposition of a high ranking official of a publicly traded company is not an uncommon strategy. While I cannot comment on the reasons that Lord Browne's deposition is being sought, it can often be utilized for publicity purposes or simply to make life difficult for the defendant and its lawyers. The philosophy being that if the CEO is made to appear and answer questions, he will be more inclined
to simply tell his lawyers to settle the case rather than go through the deposition. Because of this, Texas courts have generally taken a dim view on this strategy.
The most recent case by the Texas Supreme Court on this issue is In re Daisy Manufacturing, 17 S.W.3d 654 (Tex. 2000). In Daisy, the Supreme Court reaffirmed its earlier guidelines for the taking of an apex deposition. Under these guidelines the trial court must first determine whether the high corporate officer has unique or superior knowledge of discoverable material. If the party seeking the deposition cannot show that the apex witness has unique or superior knowledge, then the trial court is required to issue a protective order and first require the party seeking the deposition to obtain it by less-intrusive means. The apex deposition can then go forward only after the party seeking the discovery has demonstrated a good faith effort to obtain the information through less intrusive means and (1) there is a reasonable indication that the official's deposition is calculated to lead to the discovery of admissible evidence, and (2) the less-intrusive methods are unsatisfactory, insufficient or inadequate.
Here it is unlikely that the CEO of British Petroleum based in the United Kingdom has unique or superior knowledge related to the operation of a refinery in Texas City, Texas. As a result, this would seem like a prime opportunity for BP to seek a mandamus ruling. It will be interesting to see if British Petroleum appeals his ruling to the Fifth Circuit Court of Appeals.
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The importance of witness preparation applies whether you are the Defendant in the litigation or the Plaintiff. Here is a link to a good article on witness preparation from the perspective of the Plaintiff. www.tlrcblog.com/2007/06/articles/-case-work-up/tips-on-defending-personal-injury-depositions/ In his post, Tips on Defending Personal Injury Deposition, Ron Miller provides 6 tips on how to prepare a Plaintiff for his deposition. From my experience, his advice for Plaintiffs is right on target. When I take a Plaintiff's deposition, the main piece of information I am looking for is what type of impression this individual will have on a jury. To me, this is even more important than what the Plaintiff says about the accident or his injuries. As a defense lawyer, I can always deal with his testimony regarding the facts. What can be much more difficult to deal with is how he will present as a witness. A Plaintiff that makes a good witness in his deposition will enhance the value of his case and make it more likely to settle. The converse is also true. A Plaintiff who makes a poor witness will decrease the chances that his case will settle. Fortunately, for me, most lawyers do not spend much time preparing their clients to be good witnesses. This is a universal problem on both sides of the docket.
