Preparing and Responding to the Rule 30(b)(6) Notice

The Rule 30(b)(6) deposition is the process by which a litigant may depose a corporation or other business entity.  While it is impossible for a corporation to be deposed in the literal sense, the corporation must designate one or more representatives who will testify on its behalf. 

The 30(b)(6) discovery device is being increasingly utilized by litigants because of its unique features.  For instance, the testimony of a 30(b)(6) witness is binding upon the company, regardless of the designee’s personal knowledge of the subject matter or relationship to the company.  Great Am. Ins, Co. of N.Y. v. Vegas Const. Co., 251 F.R.D. 534, 538 (D.Nev. 2008).  The designee must also be prepared with all information reasonably available to the company on the topics specified in the deposition notice.  Bd. Of Tr. of the Leland Stanford Junior Univ. v. Tyco Int’l Ltd., 253 F.R.D. 524, 526 (C.D. Cal. 2008)(holding that Rule 30(b)(6) explicitly requires an organization to have persons testify on its behalf as to all matters known or reasonably available to it and, therefore, implicitly requires persons to review all matters known or reasonably available to it in preparation for the deposition).  Further, sanctions are frequently imposed if a witness has been inadequately prepared.  Most frequently these sanctions are monetary, but they may event take the form of evidence preclusion.  Great Am. Ins, Co. of N.Y., at 542-543 (D.Nev. 2008)(discussing the range of typical sanctions); Pacificorp v. Northwest Pipeline GP, 2012 WL 613155, *14 (D.Or. 2012)(requiring the corporate deponent to adequately prepare its witness and pay the legal fees associated with a second 30(b)(6) deposition); Elan Microelectronics Corp. v. Pixcir Microelectronics Co. Ltd., 2013 WL 4101811, 8-9 (D.Nev. Aug. 13, 2013)(ordering preclusion of evidence as a sanction for having failed to adequately prepare a rule 30(b)(6) deponent). 

With binding testimony, an obligation to thoroughly prepare, and sanctions readily available to redress a failure in preparation – it is hardly a surprise that use of 30(b)(6) depositions is on the rise.  Yet, the ability to take advantage of these benefits hinges upon the existence of a proper Rule 30(b)(6) notice.  A deficient notice will often trigger a motion for protective order, but even if it does not, it can give the deponent an argument that its otherwise shoddy preparation was adequate given the lack of clarity in the notice.  This article discusses considerations in properly drafting, as well as responding to, a Rule 30(b)(6) notice. 

I.          Considerations in Drafting the Rule 30(b)(6) Notice

A.        Issue One 30(b)(6) Notice per Business Entity

A common mistake for a lawyer issuing a 30(b)(6) notice is to assume that because there is no limit on the number of topics, there is also no limit on the number of times you can notice and take the deposition of a corporation.  That is not so.  The “one bite at the apple” rule applies to Rule 30(b)(6) depositions. 

Several courts have considered whether Rule 30(a)(2)(A)(ii), which requires leave of court before taking a deposition of the same person twice, applies with the same force to corporate defendants.  Numerous courts have held that the “one bite at the apple” rule applies to corporations just as it does to natural persons.

“The policy against permitting a second deposition of an already-deposed deponent is equally applicable to depositions of individuals and organizations. Taking serial depositions of a single corporation may be as costly and burdensome, if not more so, as serial depositions of an individual. In both cases, each new deposition requires the deponent to spend time preparing for the deposition, traveling to the deposition, and providing testimony. In addition, allowing for serial depositions, whether of an individual or organization, provides the deposing party with an unfair strategic advantage, offering it multiple bites at the apple, each time with better information than the last.”

State Farm Mut. Auto Ins. Co. v. New Horizont, Inc., 254 FRD 227, 233-235 (E.D. Penn. 2008).  See also In re Sulfuric Acid Antitrust Litigation, 2005 WL 1994105, *2 (N.D. Ill. 2005); Groupion, LLC v. Groupon, Inc., 2012 WL 359699, *5-6 (N.D. Cal. 2012).  These cases stand for the proposition that if a party notices and takes a 30(b)(6) deposition at an early stage of a case, that party will not automatically be able to notice and take another 30(b)(6) deposition on different topics later in the case. 

The result in these cases suggests that preparing one, comprehensive Rule 30(b)(6) deposition notice with all potential topics is the best practice.  If in response to such a notice the corporation has to designate several witnesses, it will still be counted as only one deposition.  New Horizont, Inc., at 233-235 (citing the Advisory Committee Notes to the 1993 amendments to Rule 30(a)(2)(A)).  Once a consolidated notice is prepared, the parties can decide if certain topics should be covered at an early stage of the case, and others at a later stage. 

B. The Topics Must Be Described with “Reasonable Particularity.”

Rule 30(b)(6) provides that the noticing party “must describe with reasonable particularity the matters for examination.”  Fed.R.Civ.P. 30(b)(6).  While the question whether a particular topic has been stated with “reasonable particularity” will depend on the particular facts of each case, some courts have more generally interpreted the phrase to mean “painstaking specificity.”  Kalis v. Colgate-Palmolive Co., 241 F.3d 1049, 1057, Fn 5 (7th Cir. 2000) citing Prokosch v. Catalina Lighting, Inc., 193 F.R.D. 633, 638 (D.Minn.2000) (“[T]he requesting party must take care to designate, with painstaking specificity, the particular subject areas that are intended to be questioned, and that are relevant to the issues in dispute.”).

In addition to definitional refinements like “painstaking specificity,” courts have also provided express examples of pitfalls to avoid.  The most overarching prohibition is:  “Where…the defendant cannot identify the outer limits of the areas of inquiry noticed, compliant designation is not feasible.”  Reed v. Bennett, 193 F.R.D. 689, 692 (D.Kan. 2000).  Accordingly, a notice must avoid phrases such as “including but not limited to.”  Such a topic would put the corporation to the impossible task of preparing for an open-ended, and theoretically infinite subject.  Id.  Where possible, the 30(b)(6) notice should “be limited to a relevant time period, geographic scope, and related to claims” that are at issue in the case.  Young v. United Parcel Serv. of Am., Inc., 2010 WL 1346423, *9 (D.Md. Mar. 30, 2010).   

The text of the rule and above authorities make clear that it is better to err on the side of greater specificity when issuing a Rule 30(b)(6) notice.  This is particularly so because there is no set limit for 30(b)(6) topics.  In one recent case, a district court permitted 50 topics: 

“At first blush, the number of topics raises the question of whether the notices are unduly burdensome.  Upon closer examination, the large number of topics results from the fact that Plaintiff was quite specific in her topic descriptions.  Plaintiff could have grouped them into a smaller number of topics while still meeting her duty under Rule 30(b)(6) to describe the areas of testimony with reasonable particularity.  The deposition notices are not unduly burdensome, oppressive or harassing based on the number of identified topic areas.”

Tamburri v. SunTrust Mortg. Inc., 2013 WL 1616106, at *2 (N.D. Cal. April 15, 2013).  Courts frequently allow 30 or more topics.  See e.g. Krasney v. Nationwide Mut. Ins. Co., 2007 WL 4365677, *4 (D.Conn. Dec. 11, 2007)(upholding 35 of 40 topics). 

There are far more benefits than detriments to articulating your 30(b)(6) topics with a high degree of specificity.  For instance, in Tamburri, the court held that 50 topics were not unreasonable, in part, because of the great specificity of the topics.  Highly specific topics will also deny any refuge to an unprepared witness.  There will be no legitimate argument that the topic was ambiguous, so when the unprepared witness cannot answer, sanctions of some kind will be more likely.    

II.        Obtaining Protection from an Improper Notice. 

            As a practical matter, the responsibility for ensuring that the Rule 30(b)(6) notice is sufficiently specific and clear rests as much with the prospective deponent as it does with the noticing party.  No lawyer should permit her client to spend hours of unnecessary time preparing for deposition based upon a vague 30(b)(6) notice.  No lawyer should expose her client to potential sanctions when the client inevitably cannot answer all questions that theoretically fall within an overly broad and open-ended topic.  If upon reviewing the 30(b)(6) notice lawyer and client cannot ascertain what must be done to prepare, or, if preparation would be overly burdensome because of the unreasonable breadth of the topic, the lawyer should confer and then move for a protective order if necessary. 

            It is a common misperception – even among seasoned lawyers – that serving written objections to a 30(b)(6) notice is sufficient to protect the client from an improper notice.  It is not.  Such objections are essentially useless.  “The proper procedure to object to a Rule 30(b)(6) deposition notice is not to serve objections on the opposing party, but to move for a protective order.”  Beach Mart, Inc. v. L & L Wings, Inc., 302 F.R.D. 396, 406 (E.D.N.C. 2014).    A corporate deponent cannot simply make “objections and then provide a witness that will testify only within the scope of its objections.”  Id.  “Unlike the procedure with respect to interrogatories, requests for production of documents and requests for admissions, there is no provision in the rules which provides for a party whose deposition is noticed to serve objections so as to be able to avoid providing the requested discovery until an order compelling discovery is issued.”  New England Carpenters Health Benefits Fund v. First Databank, Inc., 242 F.R.D. 164, 165-166 (D.Mass. 2007). 

            The first step in protecting the prospective deponent from an improper 30(b)(6) notice is to confer with opposing counsel in an attempt to clarify or limit the objectionable topics.  For this purpose, written objections may certainly serve as a starting point.  The defending lawyer should push for as much clarity and precision as possible, as that will enable the prospective deponent to engage in focused preparation and will also decrease the chance that the witness will be unprepared. 

            If conferring with opposing counsel does not result in a proper 30(b)(6) notice, then moving for a protective order under Rule 26(c) is the only reasonable option.  Fed. R. Civ. P. 26(c).  The motion may seek to have the entire notice quashed, or to have specific topics modified or quashed.  If the notice generally lacks specificity or is otherwise replete with defects that are susceptible to correction, then courts often quash the entire notice and provide leave for the notice to be re-issued consistent with the court’s opinion.  See Murphy v. Kmart Corp., 255 F.R.D. 497, 518 (D.S.D. 2009); Reed v. Bennett, 193 F.R.D. 689, 693 (D.Kan. 2000); Gulf Production Co. Inc. v. Hoover Oilfield Supp., Inc., 2011 WL 2669294 (E.D. Louisiana 2011).  If, however, the protective order is being sought on grounds that cannot readily be cured with an amended notice – then the court may quash the notice in its entirety, and without leave to re-issue the notice.  See SEC v. Buntrock, 217 F.R.D. 441, 444, 448 (N.D.Ill. 2003)(quashing a 30(b)(6) notice which was “an inappropriate attempt to depose opposing counsel…”).  If only specific topics are problematic, then consider moving to quash only those specific topics in the hope that they will be excised from the notice without leave to re-issue them in a modified form.  See e.g. Chechele v. Ward, 2012 WL 4383405, *4 (W.D.Okl. Sept. 25, 2012).