February 09, 2021 Practice Points

How to Avoid Corporate Depositions by Adopting Prior Testimony

In appropriate cases, a corporation can avoid the time and expense of an organizational deposition under Federal Rule of Civil Procedure 30(b)(6) by adopting its employees’ prior testimony.

By Jeremy K. Beecher

It is a situation every corporate litigator knows well: Opposing counsel sends a deposition notice to your client under Federal Rule of Civil Procedure 30(b)(6) or a state-law equivalent seeking testimony on a vast array of disparate topics. The burden now falls on you to line up appropriate witnesses to testify on your client’s behalf and ensure they are prepared to testify to the corporation’s knowledge of each topic. Your client is hardly elated that the deposition will divert its employees for multiple days of preparation and testimony, but understands there is no alternative. Or is there?

In many circumstances, there is not. Particularly where a party serves its Rule 30(b)(6) deposition notice at the outset of a case and little or no discovery has yet been taken, you often have no choice but to begin preparing for the deposition in earnest, subject to whatever narrowing in scope you may be able to secure through agreement with opposing counsel or from the court.

But where a Rule 30(b)(6) deposition notice has been served after significant discovery and depositions have already occurred, there may be another option: Adopting prior deposition testimony given by your client’s individual witnesses in lieu of producing a new witness for the Rule 30(b)(6) deposition.

At first glance, the plain language of Federal Rule of Civil Procedure 30(b)(6), which requires a corporation receiving a deposition notice to “designate one or more officers, directors, or managing agents, or designate other persons . . . to testify on its behalf,” does not admit of this approach. But Rule 30(b)(6) depositions, like all other types of discovery, are subject to curtailing where “the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive,” or “the party seeking discovery has had ample opportunity to obtain the information by discovery in the action.” Fed. R. Civ. P. 26(b)(2)(C)(i)-(ii).

Accordingly, courts at times permit corporate parties to designate prior individual deposition testimony as that of the organization. For instance, in Novartis v. Abbot Laboratories, the plaintiff moved to compel a Rule 30(b)(6) deposition even though it already had extensive testimony on the noticed topic from the defendant corporation’s most knowledgeable employee. 203 F.R.D. 159, 162 (D. Del. 2001). The defendant offered to adopt the employee’s prior testimony and argued the Rule 30(b)(6) deposition would therefore be cumulative. The court agreed and denied the motion, noting the previously deposed employee was the defendant’s “most knowledgeable witness in the subject area,” “would have been the designee,” and had already given 80 pages of testimony on the noticed topic.

The court in Kolkebeck v. Home Depot US.A., Inc. reached a similar conclusion where it found the plaintiff’s “true motive” in noticing the Rule 30(b)(6) deposition was to “take a second bite of the proverbial apple.” 2015 WL 6394508, at *2 (D. Utah Oct. 22, 2015). There, as in Novartis, the defendant’s most knowledgeable employees had already testified regarding the noticed topics. The court found their testimony sufficed to satisfy the purpose of Rule 30(b)(6)—i.e. to “provide Plaintiff with assurance that he knows Defendant’s position on these matters”—and observed that while the plaintiff “may be unhappy with the testimony” he had obtained, “the topic was addressed.”

Not all courts, however, will permit a corporation to avoid a duplicative Rule 30(b)(6) deposition on this basis. Some courts have dismissed the idea out of hand as incompatible with the plain language of Rule 30(b)(6). In Taylor v. Shaw, the district court stated that while “preparing for a Rule 30(b)(6) deposition can be burdensome,” that burden is “merely the result of the concomitant obligation from the privilege of being able to use the corporate form in order to conduct business.” 2007 WL 710186, at *1 (D. Nev. Mar. 7, 2007) (quoting United States v. Taylor, 166 F.R.D. 356, 362 (M.D.N.C. 1996)). Likewise, the court in LendingTree, Inc. v. LowerMyBills, Inc. reasoned that “although the Plaintiff would prefer that the Defendant accept Mr. Lebda’s earlier testimony as the Plaintiff's testimony, the Defendant is not required to do so” under Rule 30(b)(6). 2006 WL 2443685, at *3 (W.D.N.C. Aug. 22, 2006).

Other courts have declined to endorse this approach where there is no showing that the corporation’s knowledge on a given topic was, in fact, exhausted by the prior individual testimony. A.I.A. Holdings, S.A. v. Lehman Bros., 2002 WL 1041356, at *3 (S.D.N.Y. May 23, 2002) (noting the corporation made “no affirmative showing” that its knowledge “as an entity, is coextensive with the knowledge of its principals” and that there were “several instances in which [its] principals, testifying as individuals, denied knowledge concerning certain [] books and records, and, thus, it may be impossible . . . to represent that its corporate knowledge is no greater than that of its principals”); Smith v. Gen. Mills, Inc., 2006 WL 7276959, at *6 (S.D. Ohio Apr. 13, 2006) (reasoning that “the 14 witnesses that have been or will be deposed are or were under no duty to educate themselves about all information available to the corporation on a particular topic”).

Others courts have declined to preclude duplicative Rule 30(b)(6) depositions where the corporation merely points to, but does not adopt as its own, the testimony of its individual witnesses. In Difiore v. CSL Behring, U.S., LLC, the court found Novartis “persuasive” but declined to follow it where the defendant did not explicitly agree to be bound by its employees’ prior testimony but instead suggested it was “to some extent binding in the same way as a 30(b)(6) deposition.” 2015 WL 5316479, at *1–2 (E.D. Pa. Sept. 11, 2015). Likewise, the Kolkebeck court’s denial of the plaintiff’s motion to compel was contingent on the defendant adopting its employees’ testimony within 14 days of the court’s order. 2015 WL 6394508 at *3.

In sum, this approach may not work in every situation or in every court. In appropriate cases, however, adopting individuals’ prior testimony on your corporate client’s behalf may be a workable alternative to a duplicative Rule 30(b)(6) deposition and may save your client, and its employees, significant time and expense.

Jeremy K. Beecher is a litigator in the Los Angeles, California, office of Munger, Tolles & Olson.

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