September 06, 2018 Articles

Live Testimony from Rule 30(b)(6) Witnesses at Trial: What’s Fair Game?

How can an opponent compel a 30(b)(6) witness to testify live at trial, and what constraints apply to that testimony?

By Bradford S. Babbitt

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)?

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