You defended a deposition of your client under Federal Rule of Civil Procedure 30(b)(6) months (or years) ago during discovery in a case that is now scheduled for trial in 60 days. You just learned that the deposing party intends to present live testimony at trial from the representative who testified on behalf of your client, rather than the recording of the deposition. Is that allowed? Are you required to produce that witness if the witness lives outside the reach of a Rule 45 subpoena? Does it make a difference if your client is a party in the litigation or merely a third-party witness? If your client’s representative testifies, is the questioner limited to the topics identified before the deposition, or can your client be asked about new and different topics? Is the questioner restricted to the same questions asked at the deposition? What is fair game with respect to testimony at trial from a client representative under Rule 30(b)(6)?
Corporations, partnerships, associations, and agencies have been found, controversially, to have rights similar to the rights of U.S. citizens, but they have not been found to have any of the physical attributes required to testify on their own behalf. Rule 30(b)(6) addresses this anatomical deficiency by allowing a representative chosen by the corporate entity to testify on its behalf. The party taking the deposition must identify “with reasonable particularity” the topics on which the corporate entity will be examined. The entity being deposed must designate a person to testify about information known or reasonably available to the organization regarding the identified topics. The representative’s testimony constitutes the testimony of the organization.
At trial, a party can use the testimony taken under Rule 30(b)(6) against a corporate entity that is a party in the case. Fed. R. Civ. P. 32(a)(3). Testimony of a corporate designee under Rule 30(b)(6) is not limited to impeachment and may be used against the corporate entity “for any purpose,” regardless of the unavailability of the designee. Such testimony is excluded from the definition of hearsay. Fed. R. Evid. 801(d)(2). Thus, a party may record the deposition testimony of an adverse corporate party and may introduce that testimony to the trier of fact at trial. Rule 30(b)(6) testimony of third-party organizations can also be used at trial, provided it is admissible under the Rules of Evidence.
Testimony taken under Rule 30(b)(6) may be presented at trial through a transcript read to the trier of fact or through a recording of the deposition. However, recorded testimony, in any medium, is often less compelling than live testimony. Many will recall their amusement or horror, depending on their role at the time, as a juror nodded off to sleep while a transcript was read or a video deposition was played. To avoid that risk, a party may wish to offer live testimony of a corporate party. Is that allowed? Can a party compel the testimony at trial of an organization?
Rule 30(b)(6) does not apply to trial testimony. The rule is limited to depositions. Hence, a party cannot compel a corporate organization to testify at trial through a subpoena issued under Rule 30(b)(6). Dopson-Troutt v. Novartis Pharms. Corp., 295 F.R.D. 536, 539–40 (M.D. Fla. 2013). No rule requires a corporate entity to designate a representative to testify “vicariously” and in person at trial. Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416, 434 (5th Cir. 2006). The ability to offer at trial the testimony of an organization taken under Rule 30(b)(6) makes such a rule unnecessary.
On the other hand, Rule 30(b)(6) does not prohibit live testimony from a representative of an organization. A party seeking to compel live trial testimony of an organization could issue a subpoena under Federal Rule of Civil Procedure 45 directed to the representative who testified at the 30(b)(6) deposition. A trial subpoena under Rule 45 extends to persons who reside, are employed, or regularly transact business within 100 miles of the trial. Such a subpoena would also encompass a party’s officer who resides, is employed, or regularly transacts business within the state in which the trial will occur. Hence, if an organization’s representative is within 100 miles of the trial or within the state, and the organization is a party, then the representative can be compelled to testify at trial.
The situation becomes more complex if the trial occurs outside the state in which the organization’s representative lives or works, and more than 100 miles away. Courts are split about whether an individual whose deposition was taken on behalf of an organization under Rule 30(b)(6) may be compelled to attend trial even beyond the geographic scope of Rule 45. Some courts hew strictly to the requirements of Rule 45, quashing subpoenas that seek in-person testimony on behalf of a corporate entity if the designee lives or works outside the state and more than 100 miles away from the trial. See, e.g., Dopson-Troutt, 295 F.R.D. at 539–40. Other courts apply Rule 45 more flexibly, opining that a corporate representative whose testimony on behalf of a corporate entity is sought at trial should be considered a “party,” even though the representative is merely a designee of the party, and should be produced regardless of the geographic limits of Rule 45. See, e.g., Conyers v. Balboa Inc. Co., No. 8:12-cv-30-T-33EAJ, 2013 U.S. Dist. LEXIS 78999, at *2–5 (M.D. Fla. June 5, 2013); see also Brazos River Authority, 469 F.3d at 434 (requiring a corporate designee to testify as to corporate information “if the corporation makes the witness available at trial”). The courts that have adopted this more liberal reading of Rule 45 have done so where the organization is a party in the case and not merely a third-party witness.
Once the representative designated under Rule 30(b)(6) to testify for an organization appears at trial, the designee cannot refuse to testify on behalf of the corporate entity. In Brazos River, the 30(b)(6) designee of the corporate party attended trial and testified. The corporate party argued that Rule of Evidence 602 limited him to testifying only as to his personal knowledge and not as to information “known or reasonably available” to the corporate entity, as provided in Rule 30(b)(6). The Fifth Circuit rejected that argument. If “the corporation makes the witness available at trial he should not be able to refuse to testify to matters as to which he testified at the deposition on grounds that he had only corporate knowledge of the issues, not personal knowledge.” Brazos River Authority, 469 F.3d at 434. The court based its ruling on trial courts’ practical preference for live testimony rather than testimony by transcript or recording. The court also invoked the Rule 30(b)(6) “framework” to subordinate the limitation of Rule 602—that a witness testify only to personal knowledge—to the designee’s obligation to testify as to information reasonably known to the corporate entity. The Fifth Circuit extended the duty to testify on behalf of the organization beyond the 30(b)(6) deposition all the way to trial. If “a rule 30(b)(6) witness is made available at trial, he should be allowed to testify as to matters within corporate knowledge to which he testified in deposition.” Id.; see also Univ. Healthsystem Consortium v. UnitedHealth Grp., Inc., 68 F. Supp. 3d 917, 921 (N.D. Ill. Sept. 19, 2014) (noting that a 30(b)(6) witness may testify at deposition and at trial as to information not within personal knowledge, as required by Rule 602). Another court has sanctioned a party for failing to prepare its 30(b)(6) witness to testify at “deposition and trial.” Sciaretta v. Lincoln Nat’l Life Ins. Co., No. 9:11-cv-80427-DMM, 2013 U.S. Dist. LEXIS 190412, at *19–20 (S.D. Fla. May 6, 2013), aff’d, 778 F.3d 1205 (11th Cir. 2015).
The obligation to testify on behalf of the corporate party does not resolve the issue of the scope of the testimony required from the designee. Can a 30(b)(6) corporate representative be asked about new topics at trial, or is the scope of trial testimony limited by the topics identified before the deposition? The Brazos River decision required that the corporate designee testify “as to matters within corporate knowledge to which he testified in deposition.” Brazos River Authority, 469 F.3d at 434 (emphasis added). The last phrase arguably prevents the party seeking the testimony from asking the designee to testify at trial about topics not identified before the deposition in accordance with Rule 30(b)(6). Some courts have gone farther, in reliance on Brazos River, ruling that trial subpoenas on corporate designees are proper only to the degree that they seek testimony within the scope of the 30(b)(6) deposition. See, e.g., MC Asset Recovery, LLC v. Castex Energy, Inc., No. 4:07-cv-076-Y, 2013 U.S. Dist. LEXIS 197278, at *3 (N.D. Tex. Jan. 7, 2013). These courts have quashed trial subpoenas that extend beyond the topics identified for the 30(b)(6) deposition. It is important to note that none of these courts have limited the trial examination to the same questions asked at the 30(b)(6) deposition. Thus, careful examination of the topics of a 30(b)(6) deposition is required to prepare not only for the deposition but also for trial.
Rule 30(b)(6) does not directly authorize corporate testimony at trial. Used in conjunction with Rule 45, however, Rule 30(b)(6) is a powerful tool not only for discovery but also for trial. Depending on its geographic location and its status as a party or third party, an organization can be compelled to provide live testimony at trial. This can change the nature of a 30(b)(6) deposition from a trial deposition to a discovery deposition, freeing the examiner to explore uncertain areas, develop themes, and probe for weakness. The 30(b)(6) deposition becomes a way to set up testimony at trial, at which a revised, honed, and sharpened examination can be employed to great effect.
Bradford S. Babbitt is a partner with Robinson & Cole LLP in Hartford, Connecticut.
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