| by Heather Duncan, Esq.
(a.k.a. Person Most Knowledgeable, PMK)
When used correctly, the deposition of a Person Most Qualified (PMQ) is a powerful discovery tool. The entity named in a PMQ deposition notice is considered to be the deponent.
PMQ testimony is considered to be the “voice” of the deponent (entity), not that of the individual testifying, and is effectively binding upon the entity. Getting testimony and documentation from a PMQ forces the entity being deposed to commit to a position and provide dependable discovery. Further, opposing counsel may read the PMQ testimony at trial at any time and for any reason, as an exception to the hearsay rule under Evidence Code §1220.
California Code of Civil Procedure (CCP) § 2025.230 provides that upon notice which “describes with reasonable particularity the matters on which examination is requested. . . .the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.” Under the statute, the PMQ is the person selected by the deponent to represent the deponent’s best knowledge about a designated topic and is therefore in the best position to obtain all relevant information. Multiple persons may be produced for each topic.
For those defending a PMQ deposition, extra effort is required to ensure that the correct person is designated and a search is made for the requested information and documentation. If a request for documents is included with the notice, the PMQ is “expected to make an inquiry of everyone who might be holding responsive documents or everyone who knows where such documents might be held.” Maldonado v. Superior Court (2002) 944 Cal.Ap.4th 1390, 1396. No matter who the entity designates, it has an affirmative duty to educate that person to testify on its behalf.
It should be noted, that the “deponent” is not required to be a party to the litigation and a PMQ deposition may be noticed via subpoena.