Volume 20, Number 6
September 2003

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By Sidney I. Schenkier

Sidney I. Schenkier is a U.S. magistrate judge for the Northern District of Illinois.

Under Federal Rule of Civil Procedure 30(b)(6), a corporation, partnership, association, or governmental agency is subject to the deposition process. In propounding a Rule 30(b)(6) deposition notice, the requesting party must consider at what stage in discovery to use the deposition, the subject matters on which to seek a Rule 30(b)(6) witness, how to draft the notice, and how to conduct the deposition when the corporation's designated witness is presented in one session for both a Rule 30(b)(6) and an individual-capacity deposition. The responding entity has significant issues to consider as well, such as whether to object to the notice, whom to select as the corporation's designee for the 30(b)(6) deposition, whether to use different individuals to address different Rule 30(b)(6) categories, and how to prepare the witnesses who are designated to fulfill their responsibility to "testify as to matters known or reasonably available to the organization" without compromising attorney- client privilege communications or work product.

Whether a Rule 30(b)(6) deposition is appropriate. What types of issues are suitable for Rule 30(b)(6) depositions? An obvious example is the situation in which the case involves an action by the corporation in which many individuals were involved and it is unclear what role each of them played. Consider, for example, a sexual harassment case in which the corporation asserts as a defense that it promptly conducted a thorough investigation of the charges of sexual harassment and found no action was necessary. The plaintiff has served interrogatories seeking to learn who has knowledge of the investigation and receives a list of ten names, but it is unclear who knows what. A Rule 30(b)(6) deposition provides an efficient way to find out the details about the investigation, and to find out which of the ten people had the kind of involvement that might warrant further exploration through individual depositions. The deposition also may be useful when a party is interested in finding out about conduct that took place years earlier and involved people who may no longer be with the corporation. The common thread connecting these situations is the inability of the requesting party to identify witnesses who plainly can testify about the particular activity or documents.

Considerations in crafting the Rule 30(b)(6) notice. The requesting party should give careful thought to how it describes the subjects to be covered in the deposition. First, the rule requires the requesting party to describe "with reasonable particularity" the subject matter on which testimony is being sought. "Reasonableness" should relate to the underlying purpose of the rule: to shift the burden of determining who is able to provide the information from the requesting party to the corporation. In order for the burden shifting to work, the requesting party must describe what information is being sought in a way that fairly allows the corporation to identify the person(s) able to provide the information, and to prepare them to do so. Second, the obligation of the responding corporation is to present a witness able to testify as to matters "known or reasonably available to the organization." Third, consider how many separate categories you wish to designate in a notice. The more categories that are listed, the more likely it is that the requesting party will buy itself a discovery dispute on the ground that the request is unduly burdensome. Rule 30(b)(6) has no numeric limit on the number of categories that may be contained in a notice, but as with the other discovery rules, it is subject to the discretion of the court. Fourth, a common error in Rule 30(b)(6) notices is the demand that the corporation produce the person(s) "most knowledgeable" about the matter in issue. There is no requirement that the corporation produce the "most knowledgeable" witness. The requirement is that the persons offered by the corporation as the Rule 30(b)(6) designee "shall testify as to matters known or reasonably available to the organization." The person offered by the corporation may be the witness "most knowledgeable," in the sense of the person having the most direct knowledge of the subject, but not always. Fifth, remember that the general requirements for noticing up a deposition also apply to Rule 30(b)(6) depositions.

The identity of the Rule 30(b)(6) witness. A critical consideration is who to designate as the corporate representative. As noted above, the rule does not require the person designated be the individual "most knowledgeable" about the subject matter, but there is nothing to prohibit the corporation from designating that person. Rule 30(b)(6) also does not require that the witness designated by the corporation be one of its employees. The rule indicates that a corporation may designate "other persons who consent to testify on its behalf." Sometimes the person most knowledgeable may not be available, or the corporation may decide that this person would not be the best witness to tell the corporation's story.

The capacity in which the witness is testifying. It is important to clarify, on the record, the capacity in which the witness is testifying. It is frequently the case that the witness offered up by the corporation as its representative to testify about a Rule 30(b)(6) topic is a person whom the requesting party also wants to depose in his or her individual capacity. The parties frequently will agree that the witness can be deposed in one sitting, both as a corporate representative and an individual witness. When that happens, care must be exercised to make it abundantly clear in which capacity the witness is answering certain questions.

Disputes during the deposition. There are two types of disputes that frequently arise during the course of the deposition: whether a particular question is properly within the scope of the matter designated in the notice, and whether the witness has done what is necessary to prepare to testify fairly as to the information known or reasonably available to the corporation. Both have roots in the way the notice is drafted. As the specificity of the notice increases, so, too, does the possibility that during the deposition the deposing attorney will draw the objection that a particular question exceeds the scope of the notice. On the other hand, as the generality of the topic increases, the likelihood of an objection that a particular question exceeds the scope of that general notice decreases, but so does the likelihood increase that a witness is going to answer that he or she did not know that the questioning attorney was looking for that particular detail and thus did not undertake to obtain that information. This tension underscores the importance of drafting the notice with care, to seek an appropriate balance between a notice that is both general enough to cover the topics the requesting attorney wants to learn about, and yet specific enough to give the corporation enough direction to be able to prepare a witness to provide the information that the requesting attorney really wants.

Using Rule 30(b)(6) testimony at trial. If the adverse party uses the Rule 30(b)(6) deposition testimony at trial, can the corporation offer other evidence to contradict it-and impeach what its own witness said during discovery? The courts are divergent on this point. Some courts treat Rule 30(b)(6) testimony as binding on the corporation, precluding it from offering contradictory evidence; others hold that Rule 30(b)(6) deposition testimony has no more preclusive effect than any other deposition testimony.

- This article is an abridged and edited version of one that originally appeared on page 20 of Litigation Magazine, Winter 2003 (29:2).
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