Corporate Representative - hearsay
Fla.R.Civ.Pro. 1.310 governing depositions provides that in the case of a corporate entity the person designated by the entity shall testify about matters "known or reasonably available to the organization." The corporation has a duty to produce a knowledgeable person. In the case of matters involving a former employee of the organization, that could necessitate an inquiry of the former employee re historical matters so as to gain the necessary "institutional knowledge" to testify.
It occurs to me that inherent within this procedural process is the need to convey factual/historical information to a corporate representative so that rep can testify as to the information known or available to the organization (similar to conveying factual information to an expert). I cannot find direction from a court as to the application of the hearsay rule in such circumstances.
Has anyone run into hearsay problems with respect to the designated representative inquiring of other employees/former employees? If so, how was it resolved? Thanks in advance.
P.S. - If this is a ridiculously stupid question then I am asking it on behalf of Neal Sivyer.
Mahlon H. ("Tripp") Barlow
Sivyer Barlow & Watson, P.A.
401 East Jackson Street, Suite 2225 Tampa, Florida 33602
(813) 221-4242 - phone
(813) 227-8598 - fax mbarlow@sbwlegal.commailto:mbarlow@sbwlegal.com
Unless otherwise indicated or obvious from the nature of the transmittal, the information contained in this message is attorney-client privileged and/or confidential information intended solely for the use of the addressee. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication or any of the information in it is strictly prohibited. If you have received this communication in error, please advise the sender by reply e-mail and then delete the message. Thank you
See Fla. Stat. sec 90.803 (Hearsay exceptions), subsection (18), the following sub-subsections are all potentially applicable:
(18) ADMISSIONS.—A statement that is offered against a party and is:
(a) The party’s own statement in either an individual or a representative capacity;
(b) A statement of which the party has manifested an adoption or belief in its truth;
(c) A statement by a person specifically authorized by the party to make a statement concerning the subject;
(d) A statement by the party’s agent or servant concerning a matter within the scope of the agency or employment thereof, made during the existence of the relationship;
From: clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Mahlon Barlow
Sent: Tuesday, August 20, 2013 5:34 PM
To: clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] Corporate Representative - hearsay
Fla.R.Civ.Pro. 1.310 governing depositions provides that in the case of a corporate entity the person designated by the entity shall testify about matters “known or reasonably available to the organization.” The corporation has a duty to produce a knowledgeable person. In the case of matters involving a former employee of the organization, that could necessitate an inquiry of the former employee re historical matters so as to gain the necessary “institutional knowledge” to testify.
It occurs to me that inherent within this procedural process is the need to convey factual/historical information to a corporate representative so that rep can testify as to the information known or available to the organization (similar to conveying factual information to an expert). I cannot find direction from a court as to the application of the hearsay rule in such circumstances.
Has anyone run into hearsay problems with respect to the designated representative inquiring of other employees/former employees? If so, how was it resolved? Thanks in advance.
P.S. – If this is a ridiculously stupid question then I am asking it on behalf of Neal Sivyer.
Mahlon H. ("Tripp") Barlow
Sivyer Barlow & Watson, P.A.
401 East Jackson Street, Suite 2225 Tampa, Florida 33602
(813) 221-4242 - phone
(813) 227-8598 - fax mbarlow@sbwlegal.commailto:mbarlow@sbwlegal.com
Unless otherwise indicated or obvious from the nature of the transmittal, the information contained in this message is attorney-client privileged and/or confidential information intended solely for the use of the addressee. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication or any of the information in it is strictly prohibited. If you have received this communication in error, please advise the sender by reply e-mail and then delete the message. Thank you
Reese J. Henderson, Jr.
Board Certified Construction Attorney
GrayRobinson, P.A.
50 North Laura Street, Suite 1100
Jacksonville, FL 32202
Main: 904-598-9929 | Fax: 904-598-9109
Email: reese.henderson@gray-robinson.com
This e-mail is intended only for the individual(s) or entity(s) named within the message. This e-mail might contain legally privileged and confidential information. If you properly received this e-mail as a client or retained expert, please hold it in confidence to protect the attorney-client or work product privileges. Should the intended recipient forward or disclose this message to another person or party, that action could constitute a waiver of the attorney-client privilege. If the reader of this message is not the intended recipient, or the agent responsible to deliver it to the intended recipient, you are hereby notified that any review, dissemination, distribution or copying of this communication is prohibited by the sender and to do so might constitute a violation of the Electronic Communications Privacy Act, 18 U.S.C. section 2510-2521. If this communication was received in error we apologize for the intrusion. Please notify us by reply e-mail and delete the original message without reading same. Nothing in this e-mail message shall, in and of itself, create an attorney-client relationship with the sender.
Thanks. I have a situation in which the corporation is not a party.
Mahlon H. ("Tripp") Barlow
Sivyer Barlow & Watson, P.A.
401 East Jackson Street, Suite 2225 Tampa, Florida 33602
(813) 221-4242 - phone
(813) 227-8598 - fax mbarlow@sbwlegal.commailto:mbarlow@sbwlegal.com
Unless otherwise indicated or obvious from the nature of the transmittal, the information contained in this message is attorney-client privileged and/or confidential information intended solely for the use of the addressee. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication or any of the information in it is strictly prohibited. If you have received this communication in error, please advise the sender by reply e-mail and then delete the message. Thank you
From: Reese J. Henderson, Jr. [mailto:Reese.Henderson@gray-robinson.com]
Sent: Tuesday, August 20, 2013 5:50 PM
To: Mahlon Barlow; clc-discussion@lists.flabarrpptl.org
Subject: RE: Corporate Representative - hearsay
See Fla. Stat. sec 90.803 (Hearsay exceptions), subsection (18), the following sub-subsections are all potentially applicable:
(18) ADMISSIONS.—A statement that is offered against a party and is:
(a) The party’s own statement in either an individual or a representative capacity;
(b) A statement of which the party has manifested an adoption or belief in its truth;
(c) A statement by a person specifically authorized by the party to make a statement concerning the subject;
(d) A statement by the party’s agent or servant concerning a matter within the scope of the agency or employment thereof, made during the existence of the relationship;
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Mahlon Barlow
Sent: Tuesday, August 20, 2013 5:34 PM
To: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] Corporate Representative - hearsay
Fla.R.Civ.Pro. 1.310 governing depositions provides that in the case of a corporate entity the person designated by the entity shall testify about matters “known or reasonably available to the organization.” The corporation has a duty to produce a knowledgeable person. In the case of matters involving a former employee of the organization, that could necessitate an inquiry of the former employee re historical matters so as to gain the necessary “institutional knowledge” to testify.
It occurs to me that inherent within this procedural process is the need to convey factual/historical information to a corporate representative so that rep can testify as to the information known or available to the organization (similar to conveying factual information to an expert). I cannot find direction from a court as to the application of the hearsay rule in such circumstances.
Has anyone run into hearsay problems with respect to the designated representative inquiring of other employees/former employees? If so, how was it resolved? Thanks in advance.
P.S. – If this is a ridiculously stupid question then I am asking it on behalf of Neal Sivyer.
Mahlon H. ("Tripp") Barlow
Sivyer Barlow & Watson, P.A.
401 East Jackson Street, Suite 2225 Tampa, Florida 33602
(813) 221-4242 - phone
(813) 227-8598 - fax mbarlow@sbwlegal.commailto:mbarlow@sbwlegal.com
Unless otherwise indicated or obvious from the nature of the transmittal, the information contained in this message is attorney-client privileged and/or confidential information intended solely for the use of the addressee. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication or any of the information in it is strictly prohibited. If you have received this communication in error, please advise the sender by reply e-mail and then delete the message. Thank you
Reese J. Henderson, Jr.
Board Certified Construction Attorney
GrayRobinson, P.A.
50 North Laura Street, Suite 1100
Jacksonville, FL 32202
Main: 904-598-9929 | Fax: 904-598-9109
Email: reese.henderson@gray-robinson.commailto:reese.henderson@gray-robinson.com
GRAY | ROBINSONhttp://gray-robinson.com/
ATTORNEYS AT LAWhttp://www.gray-robinson.com/
This e-mail is intended only for the individual(s) or entity(s) named within the message. This e-mail might contain legally privileged and confidential information. If you properly received this e-mail as a client or retained expert, please hold it in confidence to protect the attorney-client or work product privileges. Should the intended recipient forward or disclose this message to another person or party, that action could constitute a waiver of the attorney-client privilege. If the reader of this message is not the intended recipient, or the agent responsible to deliver it to the intended recipient, you are hereby notified that any review, dissemination, distribution or copying of this communication is prohibited by the sender and to do so might constitute a violation of the Electronic Communications Privacy Act, 18 U.S.C. section 2510-2521. If this communication was received in error we apologize for the intrusion. Please notify us by reply e-mail and delete the original message without reading same. Nothing in this e-mail message shall, in and of itself, create an attorney-client relationship with the sender.
If this is a stupid response this is not Fred Dudley but there is a very recent appellate case on this rule that talks about the misconception of having to produce the "most knowledgable" corporate representative. See Fred's last several monthly subcommittee reports since that rascal is currently on vacation in the mountains of western No Carolina trying hard not to type so much stuff on his IPhone (I hear).
Sent from my iPhone
On Aug 20, 2013, at 5:43 PM, "Mahlon Barlow" <MBarlow@sbwlegal.commailto:MBarlow@sbwlegal.com> wrote:
Fla.R.Civ.Pro. 1.310 governing depositions provides that in the case of a corporate entity the person designated by the entity shall testify about matters “known or reasonably available to the organization.” The corporation has a duty to produce a knowledgeable person. In the case of matters involving a former employee of the organization, that could necessitate an inquiry of the former employee re historical matters so as to gain the necessary “institutional knowledge” to testify.
It occurs to me that inherent within this procedural process is the need to convey factual/historical information to a corporate representative so that rep can testify as to the information known or available to the organization (similar to conveying factual information to an expert). I cannot find direction from a court as to the application of the hearsay rule in such circumstances.
Has anyone run into hearsay problems with respect to the designated representative inquiring of other employees/former employees? If so, how was it resolved? Thanks in advance.
P.S. – If this is a ridiculously stupid question then I am asking it on behalf of Neal Sivyer.
Mahlon H. ("Tripp") Barlow
Sivyer Barlow & Watson, P.A.
401 East Jackson Street, Suite 2225 Tampa, Florida 33602
(813) 221-4242 - phone
(813) 227-8598 - fax mbarlow@sbwlegal.commailto:mbarlow@sbwlegal.com
Unless otherwise indicated or obvious from the nature of the transmittal, the information contained in this message is attorney-client privileged and/or confidential information intended solely for the use of the addressee. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication or any of the information in it is strictly prohibited. If you have received this communication in error, please advise the sender by reply e-mail and then delete the message. Thank you
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Apologies; I thought that's why you were citing the rule about corporate representatives.
Sent from my iPhone
On Aug 20, 2013, at 6:00 PM, "Mahlon Barlow" <MBarlow@sbwlegal.commailto:MBarlow@sbwlegal.com> wrote:
Thanks. I have a situation in which the corporation is not a party.
Mahlon H. ("Tripp") Barlow
Sivyer Barlow & Watson, P.A.
401 East Jackson Street, Suite 2225 Tampa, Florida 33602
(813) 221-4242 - phone
(813) 227-8598 - fax mbarlow@sbwlegal.commailto:mbarlow@sbwlegal.com
Unless otherwise indicated or obvious from the nature of the transmittal, the information contained in this message is attorney-client privileged and/or confidential information intended solely for the use of the addressee. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication or any of the information in it is strictly prohibited. If you have received this communication in error, please advise the sender by reply e-mail and then delete the message. Thank you
From: Reese J. Henderson, Jr. [mailto:Reese.Henderson@gray-robinson.com]
Sent: Tuesday, August 20, 2013 5:50 PM
To: Mahlon Barlow; clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: RE: Corporate Representative - hearsay
See Fla. Stat. sec 90.803 (Hearsay exceptions), subsection (18), the following sub-subsections are all potentially applicable:
(18) ADMISSIONS.—A statement that is offered against a party and is:
(a) The party’s own statement in either an individual or a representative capacity;
(b) A statement of which the party has manifested an adoption or belief in its truth;
(c) A statement by a person specifically authorized by the party to make a statement concerning the subject;
(d) A statement by the party’s agent or servant concerning a matter within the scope of the agency or employment thereof, made during the existence of the relationship;
From: clc-discussion-bounces@lists.flabarrpptl.orgmailto:clc-discussion-bounces@lists.flabarrpptl.org [mailto:clc-discussion-bounces@lists.flabarrpptl.org] On Behalf Of Mahlon Barlow
Sent: Tuesday, August 20, 2013 5:34 PM
To: clc-discussion@lists.flabarrpptl.orgmailto:clc-discussion@lists.flabarrpptl.org
Subject: [CLC-Discussion] Corporate Representative - hearsay
Fla.R.Civ.Pro. 1.310 governing depositions provides that in the case of a corporate entity the person designated by the entity shall testify about matters “known or reasonably available to the organization.” The corporation has a duty to produce a knowledgeable person. In the case of matters involving a former employee of the organization, that could necessitate an inquiry of the former employee re historical matters so as to gain the necessary “institutional knowledge” to testify.
It occurs to me that inherent within this procedural process is the need to convey factual/historical information to a corporate representative so that rep can testify as to the information known or available to the organization (similar to conveying factual information to an expert). I cannot find direction from a court as to the application of the hearsay rule in such circumstances.
Has anyone run into hearsay problems with respect to the designated representative inquiring of other employees/former employees? If so, how was it resolved? Thanks in advance.
P.S. – If this is a ridiculously stupid question then I am asking it on behalf of Neal Sivyer.
Mahlon H. ("Tripp") Barlow
Sivyer Barlow & Watson, P.A.
401 East Jackson Street, Suite 2225 Tampa, Florida 33602
(813) 221-4242 - phone
(813) 227-8598 - fax mbarlow@sbwlegal.commailto:mbarlow@sbwlegal.com
Unless otherwise indicated or obvious from the nature of the transmittal, the information contained in this message is attorney-client privileged and/or confidential information intended solely for the use of the addressee. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication or any of the information in it is strictly prohibited. If you have received this communication in error, please advise the sender by reply e-mail and then delete the message. Thank you
Reese J. Henderson, Jr.
Board Certified Construction Attorney
GrayRobinson, P.A.
50 North Laura Street, Suite 1100
Jacksonville, FL 32202
Main: 904-598-9929 | Fax: 904-598-9109
Email: reese.henderson@gray-robinson.commailto:reese.henderson@gray-robinson.com
GRAY | ROBINSONhttp://gray-robinson.com/
ATTORNEYS AT LAWhttp://www.gray-robinson.com/
This e-mail is intended only for the individual(s) or entity(s) named within the message. This e-mail might contain legally privileged and confidential information. If you properly received this e-mail as a client or retained expert, please hold it in confidence to protect the attorney-client or work product privileges. Should the intended recipient forward or disclose this message to another person or party, that action could constitute a waiver of the attorney-client privilege. If the reader of this message is not the intended recipient, or the agent responsible to deliver it to the intended recipient, you are hereby notified that any review, dissemination, distribution or copying of this communication is prohibited by the sender and to do so might constitute a violation of the Electronic Communications Privacy Act, 18 U.S.C. section 2510-2521. If this communication was received in error we apologize for the intrusion. Please notify us by reply e-mail and delete the original message without reading same. Nothing in this e-mail message shall, in and of itself, create an attorney-client relationship with the sender.
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IRS CIRCULAR 230 DISCLOSURE: TO ENSURE COMPLIANCE WITH REQUIREMENTS IMPOSED BY THE IRS, WE INFORM YOU THAT ANY TAX ADVICE CONTAINED IN THIS COMMUNICATION (INCLUDING ANY ATTACHMENTS) IS NOT INTENDED OR WRITTEN BY HOLLAND & KNIGHT LLP TO BE USED, AND CANNOT BE USED, FOR THE PURPOSE OF (I) AVOIDING TAX-RELATED PENALTIES UNDER THE INTERNAL REVENUE CODE, OR (II) PROMOTING, MARKETING, OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED MATTER HEREIN.
NOTE: This e-mail is from a law firm, Holland & Knight LLP (“H&K”), and is intended solely for the use of the individual(s) to whom it is addressed. If you believe you received this e-mail in error, please notify the sender immediately, delete the e-mail from your computer and do not copy or disclose it to anyone else. If you are not an existing client of H&K, do not construe anything in this e-mail to make you a client unless it contains a specific statement to that effect and do not disclose anything to H&K in reply that you expect it to hold in confidence. If you properly received this e-mail as a client, co-counsel or retained expert of H&K, you should maintain its contents in confidence in order to preserve the attorney-client or work product privilege that may be available to protect confidentiality.