The Importance of 30(b)(6) Designee Decisions

Vol. 16 No. 1

By

Cline Williams Wright Johnson & Oldfather, L.L.P.

Legally formed organizations are “persons” but can only act through the people that run them.  Fed. R. Civ. P. 30(b)(6) (the “Rule”) may be the most effective tool for obtaining an organization’s testimony.  Upon receiving proper notice of the matters for examination, the organization must “designate one or more officers, directors or managing agents, or designate other persons who consent to testify on its behalf . . . .”  A common misapplication of the Rule is a knee-jerk reaction to designate the primary actor in the dispute.  I see at least two problems with this approach.  First, the primary actor will likely be deposed personally.  Designating the primary actor gives the other side two bites at the apple.  Second, the person who committed the act to land the organization in the lawsuit is often not the best choice as the face for the organization. 

Upon receipt of proper notice, the organization should conduct an analysis of which person has the skill set to best reflect the organization’s theme.  If the result is that no one person can tell its story, then the organization should designate more than one person. Finally, as the Rule contemplates, the best choice as the voice for the organization may not even be currently employed by the organization.  The designee decision is an important one.  As the last Knight Templar said to Indiana Jones in The Last Crusade, “You must choose, but choose wisely.”

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