A Practical Guide to Avoiding the Pitfalls of a Rule 30(b)(6) Deposition
Christopher M. Kelly | The Transportation Lawyer
Rule 30(b)(6) of the Federal Rules of Civil Procedure was envisioned to be a rule which empowered litigants to control the costs and time expended and litigation and messaging. Historically, the rule was developed to avoid unnecessary costs of litigation due to corporate witnesses who had some but not all information being sought. The cases which discuss the rule note that it was not uncommon for individual officers and employees to disclaim knowledge of facts “clearly” known to the corporation forcing litigants to depose a laundry list of corporate officials to obtain necessary information related to the dispute. The rule was intended to streamline the discovery process by allowing a unique and specialized form of deposition. The rule arguably gives the corporation being deposed more control by allowing it to designate and prepare a witness to testify on the corporation’s behalf while allowing a party opposing the corporation to avoid unnecessary time and costs.1 It is a discovery device designed to avoid the bandying by corporations where individual officers or employees disclaim knowledge of facts clearly known to the corporation.2
However, it is a rule that, despite its intent to facilitate a more fair process, can be used as a cudgel. Litigants have learned quickly that most designated witnesses struggle with overly broad and vague topics addressed to vast corporate structures in which no one person knows, and struggles to fully educate themselves on, all of information maintained by the company, the various nuances of a plethora of policies and the mass of day to day decisions of the corporation. Accordingly, a Rule 30(b)(6) deposition is a ripe opportunity for inaccurate testimony and to bind a corporation by admissions that may not reflect the true facts. Only with an aggressive and well-prepared approach can counsel for the corporation have any chance at avoiding or limiting the damage that can occur in a Rule 30(b)(6) deposition.
The first step to mitigating the impact of a Rule 30(b)(6) deposition is to be intimately familiar with the rule, and what it requires and does not require. The Federal Rule provides as follows:
In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. A subpoena must advise a nonparty organization of its duty to make this designation. The persons designated must testify about information known or reasonably available to the organization. This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules.3
Most state court rules follow closely in language the federal rule deviating only slightly. At both the federal and state level the rule generally applies to public or private entities allowing them to designate one or more persons to testify with “reasonable particularity” about the matters for examination. The persons designated “must” or “shall” testify to the information, or the matters, known or “reasonably available to the organization.”
It is well established that the party served with a Rule 30(b)(6) notice has a duty to designate more than one deponent if necessary to respond to questions on all relevant areas of inquiry listed in the notice or subpoena.4 The corporation has a duty to make a good faith, conscientious effort to designate appropriate persons and to prepare them to testify fully and non-evasively about the subjects.5 The duty to prepare a Rule 30(b)(6) witness goes beyond matters personally known to the designee or to matters in which the designated witness was personally involved.6 The rule implicitly requires the corporation to review all matters known or reasonable available to it in preparation for a Rule 30(b)(6) deposition.7
Not only must the designee testify about facts within the corporation’s collective knowledge, including the results of an investigation initiated for the purpose of complying with the 30(b)(6) notice, but the designee must also testify about the corporation’s position, beliefs and opinions.8 It is unclear whether objections to a question that calls for opinion or legal conclusion will prevail. Further, the mere fact that an organization no longer employs a person with knowledge on the specified topics does not relieve the organization of the duty to prepare and produce an appropriate designee.9 Faced with such a scenario, a corporation with no current knowledgeable employees must prepare its designees by having them review available materials, such as fact witness deposition testimony, exhibits to depositions, documents produced in discovery, materials in former employees’ files and, if necessary, interviews of former employees or others with knowledge.10 In other words, a corporation is expected to create an appropriate witness or witnesses from information reasonably available to it if necessary.11
A corporate designee must provide responsive answers even if the information was transmitted through the corporation’s lawyers.12 A corporation may not take the position that its documents state the company’s position and that a corporate deposition is therefore unnecessary. Similarly, a corporation cannot point to interrogatory answers in lieu of producing a live, in-person corporate representative designee.13
If a corporation genuinely cannot provide an appropriate designee because it does not have the information, cannot reasonably obtain it from other sources and still lacks sufficient knowledge after reviewing all available information, then its obligations under the Rule cease.14 However, when a corporation’s designee legitimately lacks the ability to answer relevant questions on listed topics and the corporation cannot better prepare that witness or obtain an adequate substitute, then the “we-don’t-know” response can be binding on the corporation and prohibit it from offering evidence through other witnesses or records at trial on those points. Phrased differently, the lack of knowledge answer is itself an answer which will bind the corporation at trial.15
The Rule Does Not Say Anything About “The Person Most Knowledgeable.”
It has become the standard operating procedure for attorneys to set forth in a Rule 30(b)(6) Notice that either the rule requires “the person most knowledgeable” with the corporation to testify or to include in the topic description a request for “the person most knowledgeable.” Many attorneys accept this language and seem to be unaware that Rule 30 does not have anywhere in its language the term “the person most knowledgeable.” In fact, the very nature and intent of the rule, to designate a witness that will take reasonable steps to acquire the knowledge of the corporation and testify to it, refutes the idea that the most knowledgeable person in the corporation is required, even if requested. It is critically important to object to the use of the term “the person most knowledgeable” in response to any notice.
The Federal Rule provides that “[t]he named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. … The persons designated must testify about information known or reasonably available to the organization.”16 States’ rules generally mirror the federal rule in this regard. The obligation is to provide a person who has learned what is reasonably known or available to the corporation about a specific topic. Neither the Rule, nor the law, requires that a designating party select the most knowledgeable person in the organization. The United States District Court, for the Southern District of Florida, has provided counsel for the designee with this beautiful passage to support objection to a notice’s requirement of the most knowledgeable person:
The rule does not expressly or implicitly require the corporation or entity to produce the “person most knowledgeable” for the corporate deposition. Nevertheless, many lawyers issue notices and subpoenas which purport to require the producing party to provide “the most knowledgeable” witness. Not only does the rule not provide for this type of discovery demand, but the request is also fundamentally inconsistent with the purpose and dynamics of the rule. As noted, the witness/designee need not have any personal knowledge, so the “most knowledgeable” designation is illogical. … Moreover, a corporation may have good grounds not to produce the “most knowledgeable” witness for a 30(b)(6) deposition. For example, that witness might be comparatively inarticulate, he might have a criminal conviction, she might be out of town for an extended trip, he might not be photogenic (for a videotaped deposition), she might prefer to avoid the entire process or the corporation might want to save the witness for trial. From a practical perspective, it might be difficult to determine which witness is the “most” knowledgeable on any given topic. And permitting a requesting party to insist on the production of the most knowledgeable witness could lead to time-wasting disputes over the comparative level of the witness’ knowledge. For example, if the rule authorized a demand for the most knowledgeable witness, then the requesting party could presumably obtain sanctions if the witness produced had the second most amount of knowledge. This result is impractical, inefficient and problematic, but it would be required by a procedure authorizing a demand for the “most” knowledgeable witness. But the rule says no such thing.17
Accordingly, Counsel for the designating entity should object to any topic or question that expressly attempts, or implies, that the designating entity has a duty, or should, produce “the most knowledgeable witness.
Treat the Notice as a Written Discovery Request and Respond in Writing.
A Rule 30(b)(6) Notice will usually have topics and document requests contained within it. A written response to it is strategically important. If you simply show up and present your designee and only object during the deposition, you are arguably late in objecting and have prejudiced opposing counsel. Opposing counsel will argue that if they had known that the entity would refuse to provide certain information or refuse to designate on certain topics the issue could have been brought to the Court before the time and cost of the deposition was incurred. By allowing the deposition to move forward without raising any issues and then objecting or refusing to address certain topics, counsel for the designating entity has been placed at a positional disadvantage in argument before the Court as to whether the topics or requests were actually unfair or improper. Further, the argument can be made that by presenting a witness without objection to designated topics you are accepting the opposing side’s definitions, instructions, topics and language and waiving any objections. Rule 26(c) provides that it is the Court which can proscribe a discovery method, forbid inquiry into certain matters and limit the scope of disclosure in discovery.18 The rule requires the parties to first meet and confer concerning any discovery issues before seeking relief from the Court.19 Waiting until you are in the deposition to object arguably constitutes a failure to abide by the requirements of the Rules of Civil Procedure and sets the table for sanctions Accordingly, the need to respond to an objectionable Rule 30(b)(6) motion in writing well before the date of the deposition is strategically important to protect your client, avoid waiver properly present the issues.
Treat each topic as a written discovery request and object to any inappropriate wording of the topic notice that may be vague, ambiguous, overly broad or unduly burdensome or delve into areas that are not relevant or violate the rule of proportionality. Rule 30 requires that the topics describe “with reasonable particularity the matters on which the examination is requested” and any failure to do so should be objected to in writing immediately. This author would recommend that in addition to setting forth objections to a topic, that counsel for the designating entity should offer a reasonable limitation or clarification with regard to what any witness or designee will be prepared to discuss in response to a particular topic and place the burden on the noticing party to then respond if it disagrees with the limitation or clarification. A response by noticing counsel should allow for negotiations on the scope and extent of testimony and then confirmation in writing of what is agreed upon between the parties. This can be an effective way to avoid problems later on and to limit the scope of testimony to reasonable parameters. If agreement is not reached one can often obtain agreement to proceed with the deposition anyway, with full knowledge of the limitation asserted by the designating entity, to allow the parties to determine how the deposition proceeds and if the topic or limitation was really an issue or not and whether a motion to compel is really necessary. Often, the testimony, even limited, is sufficient and the dispute is resolved. If it is not resolved by the testimony the corporation is in a good position to argue it is not responsible for any fees and costs for any subsequent reconvening of the deposition because noticing counsel proceeded with full knowledge of the limitation and by consent. Similarly, if the noticing party does not respond to the written objection and limitation, there is an argument that it had sufficient notice of a limitation or objection prior to the deposition that if it proceeds with the deposition it has agreed to the limitation or, at the very least, is not entitled to costs and fees for being frustrated in its purpose. However, depending on opposing counsel, your jurisdiction and judge, a significant disagreement or lack of response by noticing counsel may necessitate a motion for a protective order to insure that the designating corporation cannot be sanctioned or deemed to have waived its objections by presenting a witness.
Most Rule 30(b)(6) notices include document requests in conjunction with listed topics. It is important to treat these requests the same as Rule 34 requests for production of documents and respond to them with appropriate objections and productions to avoid waiving such objections. Some defending attorneys produce the documents and written responses at the start of the deposition, as often requested in the notice. However, this practice can result in collection just before the deposition and an inability to use all relevant documents in preparing the designated witnesses. More importantly, in state court this guarantees a review by opposing counsel during the deposition which can unreasonably lengthen the deposition or, if in federal court, long breaks for purposes of review that do not count against the seven (7) hour limitation. Another consequence can be a request or demand that the deposition be left open to allow for questioning about the documents just produced. These scenarios are adverse situations for the designated deponent because they usually lengthen the overall time of the deposition and the chance that the designee may make a mistake and the costs associated with the deposition and discovery process.
Producing documents as if the requests were a Rule 34 request, at least two weeks before the deposition will allow opposing counsel to review them thoroughly before the deposition but that is the usual practice and a scenario that practitioners prepare for with every witness. Early production, with written objections, places the burden on opposing counsel to raise any issue with the production and objections and confer prior to filing any motion and allows the designating party to avoid allegations of “surprise” or demand the deposition be left open until they have the opportunity to review the surprisingly voluminous production. Further, many attorneys, mainly in the personal injury arena, simply won’t review the documents in detail or even realize they have been produced prior to sitting down across the conference room table from the designee. In such situations, many noticing attorneys proceed with the deposition without any of the produced documents present after being told that all of the requested documents had been produced to his or her office two or three weeks prior to the deposition. For such a noticing attorney, leaving the deposition open, motions to compel or for sanctions based on allegations of surprise, are simply not an option.
Considerations for Selecting and Preparing Your Rule 30(b)(6) Designee
The first consideration for selecting a witness is to be aware that you can select anyone. The Federal Rule states that “[t]he named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify.”20 Similarly, in most states and by way of example North Carolina, have similar language in their rules stating “[t]he named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify.”21 The rule allows for parties to go beyond just officers, directors or managing agents and allows “other persons who consent” to testify on behalf of the entity. In addition to officers, directors or managing agents, you can consider retired or former officers, employees and even contractors or consultants that work with the company. In some situations, topics which involve the corporation’s position on technical or scientific data, testing or issues, or you may want to consider identifying a retained expert. The rule does not limit the scope of individuals that can be used other than to require that they consent.
The second consideration in selecting a witness is to select not the most knowledgeable witness but rather the best, most personable and trainable witness. Consultation with company executives and explanation of the rule and the scope of who can be selected is critical to insure they understand that the most well-spoken, teachable and likeable witness is the best witness for a Rule 30(b)(6) deposition, not necessarily the most knowledgeable. An intelligent and well-spoken witness is a better witness, and easier to prepare, than someone in the company who may be the most knowledgeable person but who is easily confused or lead or just unlikeable.
Preparation of a Rule 30(b)(6) witness is critically important. First, well before the initial preparation session the witness should be provided information and documents from and about the case for their review prior to any meeting. Documents would include the pleadings, discovery responses, deposition transcripts and key documents. To the extent it is immediately obvious that investigation needs to occur by the witness, assign that investigation and request it be done prior to any preparation session. Second, more than one session may be necessary. The first session may simply be an initial document review and education session related to the case and depositions generally. You will likely engage in issue spotting and determining what additional investigation and knowledge acquisition is necessary by the witness. It is often necessary to involve other knowledgeable actors within the company or organization in an initial preparation session by either having them attend or conferencing them in remotely to interview them and educate the designee. The second session would then consist of review of all new relevant information and documents gathered and discussing and confirming the corporate position on facts and issues. During each session you should spend time explaining the rules of a deposition and teaching the witness how to be a good witness as well as explaining the special role that a Rule 30(b)(6) witness fulfills in the case. It is critically important to emphasize and drill into the designee that when the questioner says “you,” that question is to the corporation and the witness as the corporate designee is responding as the corporation. In many cases, multiple preparatory sessions are likely necessary. Breaking up the preparation can also assist with retention by the witness of information he or she will be using to respond to questions.
For corporate designees it is reasonable to assume that the Reptile Theory will be employed in their questioning. Preparation of a corporate designee to handle the types of questions that he or she will face if the Reptile Theory questioning is likely to be utilized is worth an entire session by itself. As noted, once the designee has committed the corporation to an admission or even a lack of knowledge, such testimony is usually binding and can be determinative. Preparation of a corporate witness cannot be under emphasized because the failure to properly designate a Rule 30(b)(6) witness can be deemed a nonappearance justifying the imposition of sanctions. The rule provides for a variety of sanctions for a party’s failure to comply with the obligations of Rule 30(b)(6), ranging from the imposition of costs to preclusion of testimony and even entry of default.
Defending a Rule 30(b)(6) Deposition
Your job in defending a corporate designee is to protect the company and the record. It is recommended to divide any individual deposition from the Rule 30(b)(6) deposition. Combination of an individual deposition and a Rule 30(b)(6) deposition often results in confusing testimony that results in a poor record that is unclear as to whether the designee is speaking as an individual or as a corporate representative. This happens even with the most rigorous attempts to insure the record is clear. In addition, confusion often lengthens the deposition with the need for clarifying testimony to explain which hat the witness was wearing in response to a specific question or series of questions. In addition, the witness can become confused and misspeak more easily in a combined deposition situation. Noticing counsel often express a desire to combine the two depositions to save time but defending counsel should insist on two depositions, with a break between them, with two separate transcripts. Often the noticing attorney will take the Rule 30(b)(6) deposition first and then the individual deposition. In these scenarios this author has found the individual deposition to be a very short transcript that does not unreasonably lengthen the process, avoids confusion and often avoids detailed questioning in the individual deposition.
Many times in a Rule 30(b)(6) deposition the noticing attorney will begin the examination by establishing that the designee speaks for the company and understands the duties associated with being a designee. The examiner will even delve into topics without ever marking the notice itself as an exhibit or defining the topics. The record at this point is devoid of anything which enumerates the parameters of the designated testimony and counsel has created the impression the witness speaks for the company on all matters. Do not assume opposing counsel is just overlooking the necessity of marking the notice. The notice itself should be marked and made an exhibit very early in the deposition. If necessary, defending counsel should interrupt the deposition and mark it and make it an exhibit. Further, any letters limiting the topics or reflecting agreements as to the scope of the testimony should also be marked and entered into the record. Entry of the notice and any objections and agreements will keep the record clear and constitute critical evidence of agreements for any reviewing court.
Counsel defending a Rule 30(b)(6) deposition should object to any questions attempting to characterize the witness as the “most knowledgeable witness” in addition to the usual form of the objection questions normally asserted. Questions beyond the range of the topics should be noted and the fact that the witness is not designated for a subject matter, topic or question that strays beyond enumerated the scope of the notice should be made on the record. The rules do not appear to allow for a witness to be instructed not to respond to question beyond the topic, but such questions should be highlighted as beyond the parameters set by the notice, that the preparation of the witness did not encompass the new topic or issues and will not bind the company. This objection is important to avoid confusion or argument later on that the witness did bind the company.
It is not unusual that despite all the preparation, a question or issue that is implicitly within a topic may have been overlooked. If it becomes apparent during the deposition that the designee is unable to adequately respond to relevant questions on listed subjects, then the responding corporation has a duty to timely correct the issue, by agreeing to reconvene the deposition after additional work or designating additional, supplemental witnesses as substitute deponents.22 To avoid a discovery dispute later, it is recommended to note on the record that the designee is not at that time able to respond and offer accommodation that will insure that the topic is covered and a full response provided.
It is in defending the Rule 30(b)(6) deposition that counsel will earn their keep. A Rule 30(b)(6) deposition can be a devastating blow to your client’s case if preparation for it is not taken seriously and appropriate resources allocated to preparing the witness and/or company. Approach a Rule 30(b)(6) notice by viewing it as an aggressive maneuver against your client and insure that you do everything you can to level the playing field and blunt the edge of the weapon aimed at your client.
1 See United States v. Taylor, 166 F.R.D. 356, 361 (M.D. N.C. 1996).
2 Ins. Corp. v. Jorda. Enters., 277 F.R.D. 676, 688-89 (S.D. Fl. 2012).
3 Fed. R. Civ. P. 30(b)(6)(emphasis added).
4 Ins. Corp., 277 F.R.D. at 688-89.
7 Wilson v. Lakner, 228 F.R.D. 524, 528-29 (D. Md. 2005)(“good faith effort” to “find out the relevant facts” and to “collect information, review documents and interview employees with personal knowledge”).
8 Ins. Corp., 277 F.R.D. at 688-91.
15 Id. See also, Wilson, 228 F.R.D. at 530 (“testimony given by the non-responsive deponent (e.g. “I don’t know”) may be deemed “binding on the corporation” so as to prohibit it from offering contrary evidence at trial”).
16 Fed. R. Civ. P. 30(b)(6).
17 QBE Ins. Corp. v. Jorda. Enters., 277 F.R.D. at 688-89 (citing PPM Fin., Inc. v. Norandal USA, Inc., 392 F.3d 889, 894-95 (7th Cir. 2004) (rejecting argument that trial court should not have credited the testimony of a witness who lacked personal knowledge because the witness was a 30(b)(6) witness and “was free to testify to matters outside his personal knowledge as long as they were within the corporate rubric”).
18 Fed. R. Civ. P. 26(c).
20 Fed. R. Civ. P. 30(b)(6).
21 N.C. R. Civ. P. 30(b)(6).
22 Ins. Corp., 277 F.R.D. at 688-89.
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