A party may depose “any person,” Fed. R. Civ. P. 30(a)(1), including a “public or private corporation, a partnership, an association, a governmental agency, or other entity.” Fed. R. Civ. P. 30(b)(6). To do so, in its notice or subpoena, the deposing party must “describe with reasonable particularity the matters for examination.” Id. The notice triggers the organization’s duty to “then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf,” and the organization “may set out the matters on which each person designated will testify.” Id. The designees “must testify about information known or reasonably available to the organization.” The rule itself provides little guidance on these three primary elements. This article addresses some of the basics for taking and defending 30(b)(6) depositions.
Duty to provide notice of deposition.
The notice or subpoena should include a list of topics relevant to the claim or defense of any party. The extent of that list and the detail for any particular item makes all the difference; whether you can get answers and then charge the organization with them starts here.
We typically send a tentative notice of deposition containing the topics to deponent’s counsel so that the designation, along with an appropriate place and time for the deposition, can be planned. See Rule 30(b)(1) (“reasonable notice”); L.R. 30-2 (good faith effort to confer required before serving notice of deposition). If the organization’s counsel objects to any topics, and no resolution with the noticing attorney occurs (e.g., clarification or narrowing the scope of certain topics), the organization must get a protective order pursuant to Fed. R. Civ. P. 26(c) to prevent it from being forced to provide answers. Simply raising the objection is insufficient. See, e.g., Mitsui & Co. (U.S.A.), Inc. v. Puerto Rico Water Resources Authority, 93 F.R.D. 62, 67 (D.P.R. 1981).
A typically successful objection is that the list of topics cannot be open-ended (“including but not limited to”). See, e.g., Tri-State Hospital Supply Corp. v. U.S., 226 F.R.D. 118, 125 (D.D.C. 2005). And, direct attempts to obtain work product may also be rejected. See, e.g., JPMorgan Chase Bank v. Liberty Mutual Insurance Co., 209 F.R.D. 361, 363 (S.D.N.Y. 2002). On the other hand, topics requiring testimony to explain grounds for affirmative defenses or denials of allegations have been allowed. See, e.g., Security Ins. Co. of Hartford v. Trustmark Ins. Co., 218 F.R.D. 29, 34 (D. Conn. 2003).
Other common objections we encounter fare badly in court, such as other witnesses already testified about listed matters, the organization produced documents already, or the deposing party could pose an interrogatory. Because the testimony of an individual does not bind an entity as a 30(b)(6) witness does, and a designee must provide all relevant information known or reasonably available to the entity, such objections fail. See, e.g., United States v. Taylor, 166 F.R.D. 356, 362-63 (M.D.N.C., 1996), aff’d, 166 F.R.D. 367 (M.D.N.C. 1996). Generalized objections to having to work to prepare the witness also are not likely to succeed. See, e.g., K.S. Ambassador Programs, Inc., No. CV-08-243-RMP, 2010 WL 1568391 (E.D.Wash. Apr. 14, 2010) (that information was difficult to obtain when not kept on computers was no excuse to limit deposition).
The majority view is that questions outside the scope of the notice are permissible. E.g., Detoy v. City and County of San Francisco, 196 F.R.D. 362, 366 (N.D. Cal. 2000). But, you risk getting “I don’t know” responses, and deponent’s counsel should object and state that any substantive answers given are those of the individual witness alone. If at the 30(b)(6) deposition you seek comprehensive knowledge of the individual outside the scope of the notice, you may also face an argument that you had your one bite at the apple and are precluded from deposing that witness in an individual capacity again.
Duty to designate individuals testifying for the deponent.
Under Rule 30(b)(6), the deponent “must make a conscientious good-faith endeavor to designate the persons having knowledge of the matters sought by [the party noticing the deposition] and to prepare those persons in order that they can answer fully, completely, unevasively, the questions posed…as to the relevant subject matters.” Mitsui & Co., 93 F.R.D. at 67. The designation probably should be in writing, see Fed. R. Civ. P. 37(a)(3) (party may seek order for failure to provide such discovery response), and the deposing attorney should learn which individual will testify concerning each topic listed. The duty to designate applies whether or not the organization employs or knows of an individual with personal knowledge of the matters noticed. See, e.g., Commodity Futures Trading Comm’n v. Noble Metals Intern., Inc., 67 F.3d 766, 771 (9th Cir. 1995) (sanctions for failing to designate based on excuses that people were no longer employed, would not consent, or would invoke the Fifth Amendment); Resolution Trust Corp. v. Southern Union Co., Inc., 985 F.2d 196, 197 (5th Cir. 1993) (sanctions when designees lacked knowledge and party failed to designate readily identifiable witness with knowledge). And, even if an initial designation is made in good faith, if it becomes apparent at the deposition that the witness lacks knowledge, the organization must designate an appropriate witness. Great American Ins. Co. of New York v. Vegas Constr. Co., Inc., 251 F.R.D. 534, 540 (D. Nev. 2008).
Duty to prepare the designee.
The organization has a duty to prepare its designee as to knowledge of the subject matter identified in the notice, including information that is reasonably available to it through review of documents within its control, conversations with current or former employees, reading relevant testimony in the matter, or other sources of information. Bank of New York v. Meridian Biao Bank Tanzania, Ltd., 171 F.R.D. 135, 151 (S.D.N.Y. 1997); Great American, 251 F.R.D. at 539; Calzaturficio S.C.A.R.P.A. s.p.a. v. Fabiano Shoe Company, Inc., 201 F.R.D. 33, 37-39 (D. Mass. 2001). The witness who already has some personal knowledge of the topic cannot testify solely from personal knowledge, but must also testify about information reasonably known to the deponent. Great American, 251 F.R.D. at 539; Poole v. Textron, Inc., 192 F.R.D. 494, 504 (D. Md. 2000).
Good preparation is key to fulfill obligations under Rule 30(b)(6) and to ensure that the designee understands his or her vicarious role as the organization and how to respond to questions. During preparation, care should be taken not to show the witness privileged material. See Suss v. MSX International Services, Inc., 212 F.R.D. 156, 165 (S.D.N.Y. 2002) (privilege waived if witness relies on review of privileged material in providing testimony).
But all too commonly, witnesses show up unprepared and ignorant of noticed topics. If that is a strategic choice, it can backfire. A natural part of the 30(b) (6) deposition concerns the designee’s place in the organization, how the designee was selected and prepared, and what the designee knew before and after designation, so lack of preparation is easily exposed. To combat the unprepared witness, the deposing lawyer can request that the deponent designate another witness and thereby gain another opportunity to depose the organization. The deposing lawyer can also attempt to get as much information as possible and then file a motion to compel another 30(b)(6) deposition and seek reimbursement for the expenses of the first deposition. Fed. R. Civ. P. 37(a)(3)(B) (failure to answer or make a designation); Fed. R. Civ. P. 37(a) (4) (evasive or incomplete disclosure, answer, or response is treated as a failure); Fed. R. Civ. P. 37(d) (party’s failure to attend deposition after proper notice); Resolution Trust, 985 F.2d at 197; In re Vitamins Antitrust Litigation, 216 F.R.D. 168, 171-72 (D.D.C. 2003) (client and counsel required to pay for motion).
In addition, a deposing lawyer may be able to hold the organization to testimony from the designee that it lacks knowledge concerning a topic noticed. Courts are split on this issue. Some courts will treat an organization like other deponents, so that the organization cannot defeat a summary judgment motion by relying on a declaration that conflicts with its own deposition testimony. See, e.g., Rainey v. American Forest & Paper Assoc., Inc., 26 F.Supp. 2d 82, 94 (D.D.C. 1998). At trial, the court may preclude the organization from introducing evidence on that topic, unless the information was unknown and not accessible at the time. See, e.g., United States v. Taylor, 166 F.R.D. at 362. Other courts will allow conflicting testimony but permit the designee’s testimony as impeachment. A.I. Credit Corp. v. Legion Ins. Co., 265 F.3d 630, 637 (7th Cir. 2001).
For serious disregard of discovery obligations and orders, sanctions may include severe penalties, such as deeming allegations of a complaint as having been established. See Commodity Futures, 67 F.3d at 772. Otherwise, the court must engage in an analysis of whether the expenses of a discovery motion should be assessed under Rule 37. See, e.g., K.S., 2010 WL 1568391 at *4.
Rule 30(b)(6) depositions can be a powerful tool to obtain admissions for a case involving an organization, and not limited to those cases where the individual deponents appear to lack knowledge of key issues. Such depositions can increase a party’s available deposition time as of right because the 30(b)(6) deposition is counted as a single deposition, and if there are multiple designees, each individual can be deposed for the full seven hours permitted by Rule 30(d)(1). See Advisory Committee’s note to Rule 30(d) (“for purposes of this durational limit, the deposition of each person designated under Rule 30(b)(6) should be considered a separate deposition”). Rule 30(b)(6) depositions also can raise complex issues concerning work product immunity and require careful planning and consideration, whether you are taking or defending them.
This article appeared in the Fall 2010 issue of the Oregon State Bar's Litigation Journal.