"Corporate designee" depositions, taken under the authority of Federal Rule of Civil Procedure 30(b)(6), can be one of the most potent discovery tools available to a party in a lawsuit. For corporate parties, for the same reasons, such depositions can be fraught with peril. Challenging issues include how many corporate representatives to designate and who they should be, what steps to take to prepare the witnesses adequately, how to protect information subject to the attorney-client privilege and the work-product doctrine, and how to manage the significant costs to be incurred in preparing the witnesses. Because the deposition responses are binding on the corporation, the corporation's claims or defenses often hang on the common vulnerabilities of individual witnesses. Although these issues are at the forefront of traditional Rule 30(b)(6) analyses, an important preliminary issue is often overlooked: Is it even appropriate to allow the deposing party to employ the Rule 30(b)(6) mechanism, given the circumstances of the case and the information sought to be discovered? Although there is ample authority suggesting that these depositions are unavoidable and inevitable in any litigation, corporate defense attorneys should not take such conclusions for granted.
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