Defending Depositions of Employer Witnesses in an Employment Litigation


Summary

This practice note explains how to prepare for and defend depositions of employer witnesses in an employment litigation. Defending an employer’s witness rarely gives a management-side attorney an opportunity to “win” in an employment litigation. However, the plaintiff does have a major opportunity to “win” at this stage. Even where the employer has solid defenses for the action at issue, the deposition may allow the plaintiff to undercut the employer’s defenses. For example, in an Equal Employment Opportunity (EEO) discrimination case, the plaintiff’s attorney may get the witness to admit that disciplinary policies are not consistently followed, that certain documentation is not always reliable, or that similarly situated employees were treated differently. One significant admission may be all that the plaintiff needs to survive summary judgment. Thus, it is crucial that the management-side attorney carefully prepare each witness for the deposition—whether it is a management official, ...