Selecting Employee Witnesses

Jim Hughey III

Q
Question: We are a small manufacturer of medical devices and have just been served with our first lawsuit. We have been asked by appointed counsel to select someone within our company to respond to and provide evidence for the case. What should we consider when making the selection?
A
Answer:

The short answer is "it depends". Considerations include the specific allegations in the legal Complaint filed by the plaintiff, your organizational structure and the personnel within your company. Generally speaking, you should engage those individuals within the company who are most familiar with those aspects of the product challenged in the Complaint, such as its design, manufacture or regulatory approval. While many companies limit their selection to managers, you should consider involving “front line” employees whose work for the company brings them closest to the aspects of the product which are at issue.

When the lawsuit progresses to the point where documents and testimony must be provided, you need to provide the most accurate and persuasive information possible and be consistent in your responses. So, identify the key employees as soon as possible and before you respond to document requests or provide a witness to testify. To the extent possible, be consistent in using the same individual(s) to certify answers to interrogatories, review document productions, and give testimony in the case. Ask hard questions and follow up to make sure you find all pertinent facts. And, most of all, be sure to consult with your attorney on all witness decisions.

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