The Rule 30(B)(6) Deposition: Some Practical Tips To Keep You Ahead Of The Game - ABA YLD 101 Practice Series

By Christine E. Mayle

Federal Rule of Civil Procedure 30(b)(6) allows a party to take the deposition of a corporation, partnership, association, or other entity. The Rule 30(b)(6) deposition is a routine discovery tool in any federal litigation involving a corporate entity. But a Rule 30(b)(6) deposition is not a "routine " deposition. There are unique challenges associated with a Rule 30(b)(6) deposition, and both the attorney and the corporation must fully understand the process and the potential pitfalls it involves.  Below are a few tips to consider if you suddenly face a Rule 30(b)(6) deposition notice.

Review the 30(b)(6) Deposition Notice Carefully, and Communicate with Opposing Counsel If You Have Any Concerns.
A Rule 30(b)(6) deposition notice must describe "with reasonable particularity " the matters on which the corporation's deposition is requested, and the corporation has the right to designate who will testify on its behalf regarding the specified subject matters. Before you and your corporate client even begin to discuss who should be designated to testify, it is essential that you fully understand the scope of testimony that has been requested. If the noticed topics are vague or confusing, attempt to clarify those categories with opposing counsel as soon as possible. If you are unable to resolve the issues, move for a protective order on the corporation's behalf.  Otherwise, you may waive your objections to the deposition notice if you do not raise them with the court prior to the deposition. 1

Carefully Select the Best Witness for the Corporation - Do Not Simply Designate Someone with First-Hand Knowledge of the Issues.
The corporation has an affirmative duty to present a witness who is knowledgeable on the designated topics. But the corporate witness need not be the "most knowledgeable " person on the subjects - i.e., the one with the most direct knowledge of the relevant facts. Indeed, it is perfectly appropriate to designate someone who has no relevant first-hand knowledge. The corporation's only obligation is to designate someone to become educated on the "information known or reasonably available to the organization " 2 before the deposition. Educating someone who lacks personal knowledge commonly occurs when the noticing party seeks information about events that occurred in the distant past about which no one left in the corporation has first-hand knowledge.

Ideally, the corporation should select a designee who has experience testifying, who is sophisticated enough to understand that the testimony is will be given as the corporation's representative (not in an individual capacity), and who has at least some familiarity with the relevant issues.  As part of the selection process, you may want to interview potential candidates with in-house counsel. This is a great way to gather relevant information on the noticed topics while observing the demeanor of potential witnesses first-hand. 

Be Mindful of Additional Costs Associated with Multiple 30(b)(6) Designees - But "If You Must, You Must. "
Although the corporation may split the deposition topics among several designees, you should inform your client of the additional costs associated with doing so. The advisory committee notes to Civil Rule 30(d)(2) state that "the deposition of each person designated under Rule 30(b)(6) should be considered a separate deposition " and therefore subject to an additional 7-hour deposition limit under the federal rules. Be mindful too not only of the additional costs associated with preparing multiple witnesses but also of the additional costs associated with an additional full day of testimony per designee. If, however, you believe that it is necessary to designate more than one witness to give a "complete " response to the Rule 30(b)(6) deposition notice, then the corporation must bear the added expense. "[T]he law is well-settled that corporations have an affirmative duty to make available as many persons as necessary to give complete, knowledgeable, and binding answers " on the corporation's behalf. 3

Prepare, Prepare, Prepare. Then Prepare Some More.
The corporation must prepare its corporate designee thoroughly so that he or she "can answer fully, completely, [and] unevasively the questions posed . . . as to the relevant subject matters. " 4 You should ensure that the corporation has gathered all "known and reasonably available " information on the deposition topics via non-privileged corporate documents, prior deposition transcripts, and, if necessary, discussions with employees and former employees with relevant first-hand knowledge. You should review all of this information with the witness until you are confident that the witness actually understands it all. If the witness is having trouble remembering key information, the witness may prepare his or her own notes, but bear in mind that those notes are discoverable if they are used refresh the witness' recollection before or during the deposition. 5

At the Deposition, Listen Carefully for Questions Beyond the Scope of the Rule 30(b)(6) Notice - and Object!
Courts are divided on whether a party noticing a Rule 30(b)(6) deposition is limited to the topics in the notice. 6 The prevailing view, however, is that questions beyond the scope of the noticed categories are permissible. But the defending attorney must object on the record to clarify that the witness' answers to questions beyond designated categories are given in the witness' personal capacity - in other words, they are not the answers of the corporation.  This objection is crucial because the corporate designee's testimony on the noticed topics binds the corporation to the same extent that an individual deposed under Rule 30(b)(1) is "bound " by his or her testimony at trial. You must clarify that the witness is testifying in an individual capacity whenever a question strays beyond the noticed deposition topics.

Know When "I Don't Know " Is Not An Acceptable Answer.
Although it is often acceptable for a fact witness to truthfully respond "I don't know " or "I don't recall " during a deposition, that is not generally true for Rule 30(b)(6) corporate designee. The corporation runs the risk of incurring hefty sanctions if the witness is unable to give knowledgeable answers on the noticed topics during the deposition. A corporation that fails to produce a knowledgeable corporate witness may be assessed "non-appearance " sanctions because "such an appearance is, for all practical purposes, no appearance at all. " 7 Sanctions may include costs and attorney fees incurred in filing the motion to compel, and even monetary sanctions against the non-complying party and counsel. So, what if, despite all your preparation efforts, your witness answers "I don't know " in response to questions within the noticed deposition categories?  If possible and if permitted by local rule, try to obtain the information for the witness during a break. If the information is not readily available, you may supplement the witness' responses after the deposition. There is nothing sanctionable, of course, if the witness answers "I don't know " in response to a question outside the scope of the Rule 30(b)(6) notice. Just be sure to clarify that the response is given in the witness' individual capacity.

Conclusion
The Rule 30(b)(6) deposition should not be approached as a "routine " deposition.  If you realize that at the outset, you are already ahead of the game. With proper selection and preparation of your corporate designee, the Rule 30(b)(6) deposition provides the corporation with a great opportunity to personalize the corporation through a sophisticated, articulate, and credible witness . . . in other words, an opportunity to use Rule 30(b)(6) to its own advantage! 


1 Fed. R. Civ. P. 30(d)(1).
2 Fed. R. Civ. P. 30(b)(6).
3Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1146 (10th Cir. 2007)
4 Mitsui & Co. (U.S.A.), Inc. v. P.R. Water Res. Auth., 93 F.R.D. 62, 67 (D.P.R. 1981).
5 Fed. R. Evid. 612.
6 See U.S. v. Dianon Sys., Inc., 240 F.R.D. 40, 42 (D. Conn. 2006).
7 Spice v. Universal Forest Prods., Eastern Div., Inc., Civil Action No. 7:07cv462, 2008 WL 4455854 at *4 (W.D. Va. Oct. 1, 2008).

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About the Author

TChristine E. Mayle is a shareholder with Cooper & Walinski LPA in Toledo, Ohio. Her practice is primarily in complex civil litigation, including Section 2 of the Uniform Commercial Code, indemnity disputes, breach of contract, tortious interference with contract, fraud, and other business torts. She also has experience in the areas of product liability and personal injury. She may be reached at mayle@cooperwalinski.com.

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