When it is necessary to tell the truth to a competitor: testimony under oath in the USA

From time to time in the press emerge all sorts of interesting facts about the activities of various companies. For example, on Habré quotes testimony of Quince Jonathan regarding the design of early versions of apple products. I decided that it would be interesting to tell what these testimonies are, why they have to be given, how the process works and in which case you may have to go through this difficult test.

The material in this article is based on personal experience. If your activity is somehow connected with the American market, then sooner or later you (or your colleagues) will have to get this experience, but let's talk about this at the end of the article.

So where does this testimony come from? The fact is that in the US, the law is designed in such a way that if a company is suing someone, its employees are obliged to help the court find out the truth. And how should a court find out the truth? Each judge conducts many cases at the same time, many of them complex and confusing, and it is almost impossible to investigate the particular business of each of the parties involved in litigation in order to conduct preliminary investigations in the courtroom. Therefore, an easy way out was found: the judge can provide each of the parties with the right to obtain testimony from representatives of the other party outside the court hearings, for the purpose of collecting evidence, if there is reason to believe that this will contribute to a fair resolution of the issue. Then both parties present the evidence obtained in this way, and the judge or jury may, based on them, make their decision.
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This process of collecting testimony from employees of one company by representatives of another company is called “deposition”. During the interrogation, the witness of one party answers the questions of the lawyers of the other. A complete interrogation transcript is kept, word for word. The interrogator may also fork out the process video. The result is available to both parties, and both parties can use it in court. In particular, they may quote excerpts in writing or ask for a demonstration of video recordings (if made) to the judge or jury during the hearings. True, there is one important subtlety: while attorneys of the opposite side can get a lot of information from you about your activity, you can insist that this information is not available to their clients, if, for example, it contains a trade secret and is public. Lawyers or other specially admitted people (for example, experts) will be able in this case to convey to their clients judgments about the information received, but not the information itself. This is how complicated everything is.

The place of interrogation is usually chosen by a witness (unless the court orders otherwise), and it may even be outside the United States. Since this is the territory of the witness, he controls a lot on it. For example, he can take a break after answering any question (it cannot be interrupted only if the question has already been asked). He may request an interpreter in advance. May think for a long time over the answer, if necessary. May require to reformulate the question if it is not clear to him. Of course, everything has its limits, and profanation is inadmissible at the same time: the court and jury will not like it. In general, the position of an employee loyal to the company (and usually the company tries not to allow others for such interrogation) is to not create unnecessary problems for the company. Therefore, accepted etiquette is better to follow. Although, anything happens, and then the records of such interrogations are on Youtube.



For interrogation, hired lawyers are hired, whose task is to make the witness tell the most interesting things. A witness cannot tell a lie, since this is an “interrogation under an oath”, which means that he is personally responsible for giving false testimony. That is why this is not an exercise for a good memory: if a witness does not remember anything reliably, it is better for him to say this directly than to try to squeeze out of his mind vague fantasies about the past. You also can not give out the truth of their guesses or assumptions. Firstly, this is a game with the law - a witness can be accused of giving false testimony, and secondly, in this way he gives strong hands to the opposite side. Having caught on uncertainty, the interrogating attorney can dig up new information for himself, and make him admit some facts which you were not going to tell and which will play into his hands. Therefore, the basic principle of answering questions: do not say anything extra. It is necessary to give the shortest correct answer.

Such advice is simple to give, but it is much more difficult to follow it. As I already wrote, the interrogation is conducted by professionals, and they have favorite tricks. The process is very monotonous, lasts a long time (the interrogation can go a whole day or even two), you may become frankly bored and want to “talk”. And your opponents only need it. Word for word, and now you are already giving out your own company with giblets. Moreover, you can not even guess about it: not a single witness knows all the intricacies of the case, and your words, expertly combined with some other facts, can create a picture that the jury will not like very much. The second well-known trick: the interrogator expresses irritation with your not very informative answers, and begins in his questions indirectly accusing you of incompetence. For example, he says something like this: “And you say that, as a leader, you did not have such important information ?!”. Of course, your lawyer will immediately require that objections be entered into the protocol on the question form, which will not allow the opposite party to use your answer to this particular question as a testimony in court. But you are touched, your professional pride boils, and you lose your temper and try to convince someone of something. Everything, you are already on the hook. Your lawyer will look at you with pleading eyes, but he has no right to interfere and calm you, or even to clutch his head. He is forced to silently watch you merge the months of his hard work, and hope that you will come to your senses and come to your senses. True, he, like a coach in basketball, has the opportunity to intervene after your next answer and ask for a break. After that, already in a separate room, in private, he will splash cold water in your face, once again he will explain the rules of the game and will demand that you become sensible. However, I didn’t have to do this with me, but they told me that there were all sorts of cases.

Can it happen that you get to such an interrogation? The probability of this is zero if your activity is not related to the United States. But if you work for an American company, or even cooperate with it, the chances increase dramatically. Formally speaking, you are not obliged to testify in a US court; you always have the right to refuse. Under Russian law, such interrogations on the territory of Russia for the purpose of granting to the courts of other countries are generally prohibited. But you need to understand well the consequences of such a refusal: you put the company in a rather difficult position, and the consequences for it can be very different: from a significant fine to losing a case in court. And then you decide.