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September 22, 2014 Articles

Practice Tips and Developments in Handling 30(b)(6) Depositions, Part I

Some of the most challenging issues that arise in connection with the statute of repose are determining when the statute of repose begins to run and resolving apportionment issues when some but not all potentially liable parties are protected by the statute of repose

by Michael R. Gordon and Claudia De Palma

More than most other procedural rules, Rule 30(b)(6) of the Federal Rules of Civil Procedure, at least in theory, embodies the ultimate aim of the Federal Rules: to “secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1. But as is true of so many other discovery-related rules, Rule 30(b)(6) has evolved into something different than what its creators no doubt envisioned, as litigation counsel on both sides of the deposition table have, over the years, sought to press that rule’s boundaries—sometimes at the expense of justice, speed, and budget. The purpose of this article and a second article to be published in the next issue of the news letter is to review the more significant developments that have taken place in the 30(b)(6) arena and suggest some practice tips that we believe can improve the effectiveness and efficiency of the discovery process.

 Essentially, Rule 30(b)(6) allows a party to depose an organization through one or more witnesses designated by that organization. Contrast this with the ordinary Rule 30(b)(1) deposition of a witness who happens to work for an organization and who might or might not have the information sought by the interrogating party. The differences are tremendous. Most notably, while a litigation party can depose just about anyone pursuant to Rule 30(a), there is no requirement that the deponent subject to such a deposition do anything to prepare for the deposition. In fact, it probably would not be much of a stretch to say that most litigators prepare their clients, if they are being deposed in their individual capacities, to get comfortable with the holy trinity of deposition responses: “Yes—no—I don’t know.”

Rule 30(b)(6) has no truck with such tactics. The rule provides not only that an organization must produce witnesses knowledgeable about the issues in the case (presumably set forth in the deposition notice, but that is the subject of some contention, as we will discuss below); not only that the witness must be appropriately prepared to testify about those matters, even if the witness starts out with little or no personal knowledge on the issues; the rule also provides that the organization will be held strictly accountable for the deponent’s poor performance. The 30(b)(6) deposition is, therefore, a powerful tool in the litigator’s arsenal and one that, if used effectively, can quickly drive a case to the resolution of key factual disputes. Consider: A well-schooled Rule 30(b)(1) witness can leave an interrogator entirely frustrated and with little ammunition to use on summary judgment or at trial. An evasive answer here, a lack of recollection there, a professed lack of understanding of the questioning, and, voilà, a muddy and barely usable transcript. Yes, a skilled litigator can perhaps cut through this kind of obfuscation; and, yes, a skilled litigator can use the witness’s reticence or intermittent amnesia to his or her tactical advantage, but that’s not always the case. Sometimes the witness just won’t provide the information the litigator needs, and so the litigator must resort to other means, often at great expense, to make up the evidentiary gap.

This is where the 30(b)(6) deposition comes in. It allows the lawyer squaring off against an organization, be it a corporation or partnership or some other organization, to demand straightforward answers to straightforward questions from witnesses who are commanded to be prepared to give straightforward answers. Of course, litigators are a clever bunch, and so things are not always as easy and straightforward as they might be. But there are techniques that can be used to ensure that the 30(b)(6) deposition is used most effectively and economically, whether on the taking or defending side. We discuss those techniques in Part II of this article. But first, in Part I, we cover the legal framework of Federal Rule of Civil Procedure 30(b)(6).

The Legal Framework

Rule 30(b)(6) was added to the Federal Rules of Civil Procedure as part of the 1970 amendment package. The primary purpose of the rule was, according to the official advisory committee notes, to end the exasperating practice of “bandying,” whereby organizations would produce deposition witness after deposition witness, each disclaiming knowledge of facts that, obviously, someone in the organization had to know. See Fed. R. Civ. P. 30(b)(6) advisory committee’s note, subdiv. (b)(6) (1970). Prior to the promulgation of Rule 30(b)(6), the state of play was one game of 21 questions within another. First, the interrogator had to figure out whom to depose and the order in which to take the depositions. Second, the interrogator had to frame the deposition questions so that those questions elicited the necessary information from the appropriately knowledgeable witness. The problem for the interrogator, of course, was that the information sought might not be readily available from any one person, with the result that either insufficient information was provided or countless officers and employees had to be deposed.

Rule 30(b)(6) was intended to cut through the tactics of bandying by introducing the concept of an organizational deposition: While a human being would testify, that human was appearing not in his or her individual capacity but as the voice of the corporation or partnership or whatever form the deposed organization took. The concept is similar to the interrogatory, as the advisory committee noted, but with sharper teeth (because the sworn statement provided is given in the context of a live deposition being taken by a presumably attentive lawyer able to follow up on less-than-clear answers). Rule 30(b)(6) states as follows:

In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. A subpoena must advise a nonparty organization of its duty to make this designation. The persons designated must testify about information known or reasonably available to the organization. This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules.

The procedure by which a 30(b)(6) deposition generally proceeds is as follows:

  • A party serves a deposition notice under Rule 30(b)(6) by naming the subject organization, which can be a party or nonparty, as the deponent, and sets forth, either in the notice or subpoena or a rider thereto, particular topics as to which the organization must testify.

  • In response to the 30(b)(6) deposition notice, the organization designates one or more individuals to testify on behalf of the organization with respect to the topics identified in the deposition notice. The organization can object to the topics as overbroad or otherwise improper (e.g., the topics improperly call for privileged information).

  • The designated witness or witnesses must testify about information known or reasonably available to the organization. Critically, a 30(b)(6) witness is not disqualified for lack of personal knowledge about the matters as to which he or she will testify and need not be the most knowledgeable witness for the topics; therefore, it is possible (and not uncommon) for corporate employees to be educated as to the relevant topics and thus transformed into suitable 30(b)(6) witnesses.

One of the best recent decisions outlining the parameters of Rule30(b)(6) is a Florida district court case by the name of QBE Insurance Corp. v. Jorda Enterprises, Inc., 277 F.R.D. 676 (S.D. Fla. 2012), a subrogation action in which the plaintiff insurer sought to recover from the defendant subcontractor the sum that the plaintiff paid to its insured following a loss. The defendant sought sanctions because the plaintiff refused to produce a suitably knowledgeable witness on various 30(b)(6) topics. Id. at 683. In 39 clearly delineated steps (was the court a secret Hitchcock fan?), the QBE court set forth its “de facto Bible” governing organizational depositions. Id. at 687–91.

The QBE court first explained that the purpose of Rule 30(b)(6) is to “streamline the discovery process.” Id. at 687. The court then went on to offer, in sum and substance, the following key observations:

  • The primary purpose of the rule is to prevent the situation in which a stream of proffered witnesses lack sufficient knowledge about relevant topics.

  • The rule affords an organization being deposed considerable leeway in designating its own witnesses to represent the organization.

  • The organization being deposed may (and must) identify as many witnesses as necessary to be responsive.

  • The organization being deposed need not produce the most knowledgeable person, provided that the witness designated is prepared to testify “fully and non-evasively about the subjects” of the deposition, even if that means having the witness do as much homework as necessary to become a suitable witness.

  • The witness’s answers are binding on the organization.

  • Sanctions are available for noncompliance with the rule.

  • The organization being deposed has the right to seek a protective order if the deposition notice is overbroad or otherwise improper.

Id. at 687–91.

After reviewing what certainly seemed to be some rather evasive testimony by the plaintiff’s designee, the QBE court granted the defendant’s motion in part, precluded the plaintiff from taking certain positions at trial, and imposed a financial sanction to boot. Id. at 698. The point stressed by the court was that there are severe litigation consequences to ignoring the letter and the spirit of Rule 30(b)(6).

United States v. Taylor, a District Court for the Middle District of North Carolina decision concerning 30(b)(6) depositions in a Comprehensive Environmental Response, Compensation, and Liability Act action, remains another leading case on the subject and provides another good outline of how the rule works.166 F.R.D. 356 (M.D.N.C. 1996). The Taylor court was faced with a defendant’s reluctance to prepare its 30(b)(6) designees to the extent demanded by the U.S. government, the plaintiff. The crux of the issue was, as the court put it, “the extent of the duty which Fed. R. Civ. P. 30(b)(6) imposes on a corporation . . . to conduct an investigation prior to its deposition.” Id. at 358.

The court began its analysis by observing, quite aptly, that “[f]or a Rule 30(b)(6) deposition to operate effectively, the deposing party must designate the areas of inquiry with reasonable particularity, and the corporation must designate and adequately prepare witnesses to address these matters.” Id. at 360. The court then went on to articulate its own guidelines for 30(b)(6) depositions:

  • The party responding to a 30(b)(6) deposition must produce a witness who will speak “‘for the corporation’” and not merely for himself or herself.

  • If the designees do not have the requisite knowledge, the organization must prepare the designees “so that they may give complete, knowledgeable and binding answers on behalf of the corporation.”

  • The designees can be queried about facts as well as opinions and beliefs of the organization.

Id. at 361.

The point, explained the court, is that the 30(b)(6) designee testifies as if he or she is the organization itself—“[t]he corporation appears vicariously through its designee.” Id. Accordingly, any burden that the organization must bear—such as requiring the designee to review prior deposition testimony, documents, and deposition exhibits so that he or she can testify as to the organization’s position on various topics—“is merely the result of the concomitant obligation from the privilege of being able to use the corporate form in order to conduct business.” Id. at 362.

The Deposition Notice

What does a proper 30(b)(6) deposition notice look like? As with a 30(b)(1) notice, it contains the name of the organization to be deposed and provides the date and time of the deposition. Unlike with the 30(b)(1) notice, though, Rule 30(b)(6) provides, either within the notice itself or as a rider to the notice, a list of topics that will be the subject of the deposition. What is most important, Rule 30(b)(6) requires that this list identifying the topics of inquiry—which serve as the core of the deponent’s preparation road map—be articulated with “reasonable particularity.” Fed. R. Civ. P. 30(b)(6). So what is “reasonable particularity”?

As discussed below, although there is no universally accepted, black-letter definition of this standard, it can be fairly said that reasonably particularized topic lists are those that call for information that has a logical bearing on the claims and defenses in the case. While that definition might seem somewhat vague, unreasonably overbroad topic lists can be easy to spot.

For example, “reasonable particularity” is not a list of things “including but not limited to,” that favorite phrase of insecure litigators who worry that, no matter how carefully drafted, their discovery lists are somehow missing something. Tri-State Hosp. Supply Corp. v. United States, 226 F.R.D. 118, 125 (D.D.C. 2005). Thus, a 30(b)(6) deposition notice may not require testimony on a theoretically limitless list of topics “including but not limited to x, y, and z”; nor can it pretend to suggest a finite list of topics, each of which in turn calls for information “including but not limited to x, y, and z.” For the first version of this ploy, see the District of Kansas’s opinion in Reed v. Bennett, which held that deposition topic lists must have discernible parameters and that “[w]here . . . the defendant cannot identify the outer limits of the areas of inquiry noticed, compliant designation is not feasible.” 193 F.R.D. 689, 692 (D. Kan. 2000); but see Cotton v. Costco Wholesale Corp., No. 12-2731-JWL, 2013 WL 3819975, at *2 (D. Kan. July 24, 2013). For the latter, see the District of Columbia District Court’s commentary in Tri-State Hospital Supply Corp. v. United States, , which dealt with a 30(b)(6) notice that listed certain topics and used that phrase “including but not limited to” in order to try to capture other, related topics. 226 F.R.D. at 125. Relying on Reed v. Bennett, the Tri-State Hospital court struck the “including but not limited to” verbiage on the ground that “[l]isting several categories and stating that the inquiry may extend beyond the enumerated topics defeats the purpose of having any topics at all.” Id.

Another category of unspecified and therefore unacceptable topic lists is a request for testimony on “any matters relevant.” In Alexander v. Federal Bureau of Investigation, a case that dealt with the FBI’s alleged release of private information on political appointees and employees under prior administrations, the plaintiff served a 30(b)(6) notice calling for testimony and documents regarding eight specific topics and, as a ninth, “any other matters relevant to this case, or which may lead to the discovery of relevant evidence.” 188 F.R.D. 111, 114 (D. D.C. 1998). As the Alexander court observed, because this ninth category was, “from the face of [it],” noncompliant with the particularity rule, the request was effectively stricken and the defendants freed of the obligation to respond to it with 30(b)(6) testimony or documents. Id. at 121.

To return to the main question, what is sufficient particularization? The court in Prokosch v. Catalina Lighting, Inc. held that it is a level of detail that shows a “conscientious effort to focus” on discrete subject areas that are substantively and temporally relevant to the claims at issue. 193 F.R.D. 633, 639 (D. Minn. 2000). Other courts, perhaps more concerned about the potential for abuse by the interrogator, have looked for something a bit more—“painstaking specificity,” as a series of Kansas District Court decisions has put it. See McBride v. Medicalodges, Inc., 250 F.R.D. 581, 584 (D. Kan. 2008); EEOC v. Thorman & Wright Corp., 243 F.R.D. 421, 426 (D. Kan. 2007); Sprint Commc’ns v. TheGlobe.Com, Inc., 236 F.R.D. 524, 528 (D. Kan. 2006). But see Espy v. Mformation Techs., No. 08-2211-EFM-DWB, 2010 WL 1488555, at *2 (D. Kan. 2010).

At bottom, the consensus among most courts seems to be that, as is true of many legal standards predicated on the concept of reasonableness, the right result is the Goldilocks approach: not too vague (that would be unfair to the deponent) and not too restrictive (that would be unfair to the interrogator), but just right.

It should be noted that moderation is not necessarily required in the number of 30(b)(6) topics that can be designated; unlike the rule governing interrogatories, there is no limit on the number of topics that can be included in the 30(b)(6) notice. In Heartland Surgical Specialty Hospital v. Midwest Division, Inc., for example, the Kansas District Court sustained a topic list that contained 55 separate topics. No. 05-2164-MLB-DWD, 2007 WL 1054279, at *1 (D. Kan. Apr. 9, 2007). In QBE Insurance Corp., the Southern District of Florida approved 47 topics. 277 F.R.D. at 681. And in Banks v. Office of the Senate Sergeant-At-Arms, the District of Columbia District Court approved a notice with 35 topics (although it found some of those topics to be flawed because they were intrinsically overbroad). 222 F.R.D. 7, 18 (D.D.C. 2004).

The Organization’s Obligation to Be Prepared

Turning next to the organization’s obligation to prepare for a 30(b)(6) deposition, the first job is to designate a suitable representative to testify as a witness for the organization. There is some value in being able to self-designate. Remember that with 30(b)(1) depositions, the deponent is named by the interrogating party. With 30(b)(6) depositions, it is up to the organization being deposed to designate the witness or witnesses necessary to provide the requested information. However, the organization must be prepared to call as many witnesses as necessary. So, for example, in another opinion issued in Alexander v. Federal Bureau of Investigation, the court held that “the designating party is under the duty to designate more than one deponent if it would be necessary to do so in order to respond to the relevant areas of inquiry that are specified with reasonable particularity by the [requesting parties].” 186 F.R.D. at 141. Furthermore, a defendant cannot attempt to limit the number of witnesses deposed on the basis that it had the right to decide how many such witnesses to produce. Buycks-Roberson v. Citibank Fed. Sav. Bank, 162 F.R.D. 338, 343 (N.D. Ill. 1995). The number of witnesses that must be produced is the number of witnesses it takes to provide the information sought by the interrogating party, no more and no less.     

As a threshold matter, the burden is on the organization being deposed to make a good faith effort to identify potential witnesses with knowledge of the topics that will be the subject of the deposition. See, e.g., Starlight Int’l, Inc. v. Herlihy, 186 F.R.D. 626, 639 (D. Kan. 1999). At the same time, the organization has an affirmative duty to prepare such witnesses. Id. This duty to prepare “goes beyond matters personally known to [the] designee . . . if necessary the deponent must use documents, past employees or other sources to obtain responsive information.” Harris v. New Jersey, 259 F.R.D. 89, 92 (D.N.J. 2007). It encompasses whatever information is reasonably at the disposal of the organization.

To reiterate, it is of no moment that the designee does not have personal knowledge of the topic at hand. Rather, when a witness is designated under Rule 30(b)(6), the witness is authorized “to testify not only to matters within his personal knowledge but also to ‘matters known or reasonably available to the organization.’ . . . Thus, [the witness] [i]s free to testify to matters outside his personal knowledge as long as they [a]re within the corporate rubric.” PPM Fin., Inc. v. Norandal USA, Inc., 392 F.3d 889, 894 (7th Cir. 2004) (internal citation omitted); cf. Carriage Hills Condo., Inc. v. JBH Roofing & Constructors, Inc., 109 So. 3d 329, 332 (Fla. Dist. Ct. App. 2013), review dismissed, No. SC13-809, 2013 WL 2157852 (Fla. May 17, 2013), reh’g denied (Nov. 7, 2013). Consequently, the interrogating party cannot object to a designee if that witness lacks personal knowledge; but by the same token, the designating party (at least as to party 30(b)(6) witnesses) cannot claim that it is unable to produce a witness because none of its employees has personal knowledge.

As the rule plainly states, the organization being deposed must make sure that its designee is appropriately knowledgeable. That means the witness may have to be educated—to the extent the information to be provided to the designee is “known or reasonably available.” See Reilly v. Natwest Mkts. Grp., Inc., 181 F.3d 253 (2d Cir. 1999); EEOC v. Thorman & Wright Corp., 243 F.R.D. at 425 (quoting from Fed. R. Civ. P. 30(b)(6)); Booker v. Mass. Dept. of Pub. Health, 246 F.R.D. 387, 389 (D. Mass. 2007); Quantachrome Corp. v. Micrometrics Instrument Corp., 189 F.R.D. 697, 699 (S.D. Fla. 1999). It should come as no surprise that this issue has generated considerable litigation and decisional law because what is “reasonably known” to the organization can be, and often is, a hotly contested issue. In some cases, the lack of preparation is obvious, as in Starlight International, in which certain defendants failed to make any good faith effort to produce 30(b)(6) designees who were educated as to the subject matter at hand. 186 F.R.D. at 635–38. Nor can a witness who simply reads from an outline consider himself or herself to be “prepared” within the meaning of the rule. In re Neurontin Antitrust Litig., No. 02-1390, 2011 WL 2357793, at *2–3 (D.N.J. June 9, 2011). In other cases, however, the question is much closer and turns on issues such as the availability of documents, other employees, former employees, and other sources of information that the organization can marshal and deliver to the designee: For example, the witness must review outside documents reasonably available to the company. Fabiano, Calzaturficio S.C.A.R.P.A. S.P.A. v. Fabiano Shoe Co., Inc., 201 F.R.D. 33, 38­–39 (D. Mass. 2001). That might very well include prior deposition testimony, documents, and exhibits. Taylor, 166 F.R.D. at 362.

One additional point bears mention: The extent to which a responding organization must prepare its witnesses will depend on whether or not the organization is a party to the action. As the court in Wultz v. Bank of China observed, a 30(b)(6) deposition notice served on a nonparty must comply with the overarching and overriding requirements of Federal Rule of Civil Procedure 45, which in all cases governs nonparty discovery. 293 F.R.D. 677, 680 (S.D.N.Y. 2013). Accordingly, the Wultz court held, a nonparty 30(b)(6) target need not take any steps that would not be required by Rule 45. So, for example, the organization would not be required to designate a witness located beyond the 100-mile territorial boundary established by Rule 45. Id. at 679–80. And, by extension, the court held, if the 30(b)(6) subpoena called for testimony on topics that only employees located outside the 100-mile marker could handle, that subpoena would be unenforceable because of the absolute territorial limits imposed by Rule 45. Id. at 360.

But what about Rule 30(b)(6)’s requirement that an organization educate its employees about the matters known to the nonresident employees? Isn’t an organization that receives a 30(b)(6) notice under such circumstances in the same position as an organization that receives a 30(b)(6) notice and the only knowledgeable employee has left the organization? In the latter situation, the organization is required to educate a currently employed employee to testify on the subject topic. Wouldn’t the same logic require the organization to prepare a witness if the only knowledgeable employees are located outside the 100-mile restriction?

That was precisely the argument the Bank of China made in Wultz, an argument that was soundly rejected by Magistrate Judge Gorenstein, who wrote:

Certainly, Rule 30(b)(6) imposes upon subpoenaed corporations the duty to make a conscientious good-faith endeavor to designate the persons having knowledge of the matters sought . . . and to prepare those persons in order that they can answer fully, completely, unevasively, the questions posed . . . . However, in the case of nonparties subpoenaed pursuant to Rule 45, a corporation’s duty to respond to a subpoena is subject to the requirements of Rules 45(c)(1) and 45(c)(3)(A)(iv), which mandate that a court must quash a subpoena that subjects a person to “undue burden.”

Wultz, 293 F.R.D. at 360 (internal citations omitted).

In short, at least to some courts, there is a special “nonparty” blanket of “undue burden protection” that insulates nonparty 30(b)(6) organizations from the full extent of the 30(b)(6) preparation rule.

There has been some effort to codify greater protections for the nonparty 30(b)(6) deponent. In 2013, the Committee on Federal Courts of the Association of the Bar of the City of New York proposed an amendment to Rule 45 “to provide nonparties who are served with Rule 30(b)(6) deposition subpoenas with greater protections against undue burdens.” See Letter from the Committee on Federal Courts of the Association of the Bar of the City of New York to the Secretary of the Committee on Rules of Practice and Procedure, Administrative Office of the United States Courts (Apr. 3, 2013) [hereinafter ABCNY letter].

Neither the Wultz court nor the Association of the Bar of the City of New York has articulated a clear reason why the burdens imposed by Rule 30(b)(6) on nonparties are different from or greater than the burdens that the rule imposes on party deponents. It would seem that the rationale behind the desire to shield nonparties from the high-cost, high-stakes world of the 30(b)(6) deposition may simply be that it seems, at a gut level, unfair to impose the costs and stakes of litigation on organizations that have no stake in the outcome of the case.

Rule 30(b)(6) Motion Practice

Although the parameters governing the 30(b)(6) deposition are unique, the procedural vehicles for blocking or inducing its use are not. A party can make a motion to compel pursuant to Federal Rule of Civil Procedure 37(a)(3), and an organization that has been noticed for a deposition can seek a protective order pursuant to Federal Rule of Civil Procedure  26(c). See, e.g., Interstate Narrow Fabrics, Inc. v. Century USA, Inc., 218 F.R.D. 455, 462 (M.D.N.C. 2003) (discussing a motion to compel); EEOC v. Thurston Motor Lines, Inc., 124 F.R.D. 110, 114–15 (M.D.N.C. 1989) (discussing a protective order).

The protective order motion is an especially important device in the 30(b)(6) context because of the impact of organizational testimony, which arguably is more powerful than individual testimony. Generally speaking, if the organization being deposed does not take the proverbial bull by the horns and make such a motion in advance of the date for the deposition, it cannot, at least as a technical matter, refuse to comply with the 30(b)(6) deposition notice. See, e.g., Pioche Mines Consol., Inc. v. Dolman, 333 F.2d 257, 269 (9th Cir. 1964); see also Fernandez v. Penske Truck Leasing Co., 00295-JCM-GWF, 2013 WL 438669, at *2 (D. Nev. Feb. 1, 2013); Petersen v. DaimlerChrysler Corp., No. 06-cv-0108, 2007 WL 2391151, at *5 (D. Utah Aug. 17, 2007). This is of particular concern in the 30(b)(6) context, given the amount of preparation the deponent must do in advance of the deposition. In that regard, the Committee on Federal Courts of the Association of the Bar of the City of New York’s proposed amendment to Rule 45 suggested a remedy. (See ABCNY letter.) Citing the “greater burdens of compliance” imposed by a 30(b)(6) deposition, the committee proposed a minimum notice period for 30(b)(6) depositions of nonparties and an automatic stay of such depositions upon the filing of a motion for a protective order. Id. As of the writing of the article, the rules remain unchanged. Therefore, organizations that have received deposition notices need to consider carefully the consequences of not appearing for a 30(b)(6) deposition absent an order suspending or cancelling the deposition.

The Consequences of Providing (and Failing to Provide) 30(b)(6) Testimony

As already mentioned, there are important, sometimes case-altering, consequences (what Vincent Gambini in that favorite courtroom comedy movie My Cousin Vinny called “the case cracker”) to the testimony proffered by 30(b)(6) designees.

First, 30(b)(6) answers are generally deemed to be binding upon and attributed to the organization. See, e.g., Hyde v. Stanley Tools, 107 F. Supp. 2d 992, 993 (E.D. La. 2000), aff’d, 31 F. App’x 151 (5th Cir. 2001) (“The designee testifies on behalf of the corporation and holds it accountable accordingly.”); Rainey v. Am. Forest & Paper Ass’n, 26 F. Supp. 2d 82, 94–95 (D.D.C. 1998). Most (but not all) courts will treat the statements not as judicial admissions, but rather as deposition testimony (like any other deposition testimony) theoretically (but not practically) subject to contradiction on summary judgment or at trial. See, e.g., Indus. Hard Chrome, Ltd. v. Hetran, Inc., 92 F. Supp. 2d 786, 791 (N.D. Ill. 2000) (“The testimony given at a Rule 30(b)(6) deposition is evidence which, like any other deposition testimony, can be contradicted and used for impeachment purposes.”); W.R. Grace & Co. v. Viskase Corp., No. 90-C-5383, 1991 WL 211647, at *2 (N.D. Ill. Oct. 15, 1991); Marker v. Union Fid. Life Ins. Co., 125 F.R.D. 121, 126 (M.D.N.C. 1989); but see Taylor, 166 F.R.D. at 362; Ierardi v. Lorillard, No. 90-7049, 1991 WL 158911, at *3 (E.D. Pa. Aug. 13, 1991). In this sense, and in most cases, 30(b)(6) testimony has remarkable adhesive qualities: If the 30(b)(6) witness makes damaging statements or gives bad testimony, the organization that proffered the witness likely is going to be stuck with it. See, e.g., Ierardi, 1991 WL 158911, at *3. The party might be able to explain away the testimony, but the testimony cannot be rejected by the organization.

Second, the consequences of unresponsiveness are important because sanctions under Federal Rule of Civil Procedure 37(b)(2)(A) are a real possibility. Thus, the failure to produce a knowledgeable 30(b)(6) designee has been treated as a failure to appear for the deposition. In Starlight International, the court imposed sanctions because the witness failed to make any inquiries about the topics of the deposition and made no effort to review any relevant files other than those provided by counsel. 186 F.R.D. at 635–38. See also Taylor, 166 F.R.D. at 363; Resolution Trust Co. v. S. Union Co., 985 F.2d 196, 197 (5th Cir. 1993). Failure to comply with a proper 30(b)(6) notice may also result in the matters covered by the order being taken as established (Kyoei Fire & Marine Ins. Co., Ltd. v. M/V Mar. Antalya, 248 F.R.D. 126, 153 (S.D.N.Y. 2007)); an order prohibiting the disobedient party from supporting or opposing designated claims or defenses (Barrett v. Atl. Richfield Co., 95 F.3d 375, 380 (5th Cir. 1996)); an order precluding the disobedient party from introducing evidence on that topic (Ierardi, 1991 WL 158911, at *3); or in the most extreme cases, dismissal of the action or a default judgment entry against the recalcitrant party (Banco Del Atlantico, S.A. v. Woods Indus., Inc., 519 F.3d 350 (7th Cir. 2008); Commodity Futures Trading Comm’n v. Noble Metals Int’l, Inc., 67 F.3d 766, 770–71 (9th Cir. 1995)).A court might even consider a failure to comply with Rule 30(b)(6) to be a contempt of court. See, e.g., Pioneer Drive, LLC v. Nissan Diesel Am., Inc., 262 F.R.D. 552, 560–61 (D. Mont. 2009).

The most common form of a response to a violation of Rule 30(b)(6) is a sanctions order under Rule 11, Rule 37(d), or both. That being said, courts generally will take into account the good faith of the organization when considering sanctions. For example, in Banks v. Office of the Senate Sergeant-At-Arms, the court chose not to issue a preclusion order at trial because the significance of the subject evidence, which covered “every issue in the lawsuit,” would have made its preclusion tantamount to a default judgment, an excessive sanction. See 222 F.R.D. at 19. Similarly, the court in EEOC v. Lockheed Martin observed that “the harshest sanctions are inappropriate if the failure to comply was due to a party’s inability to comply or to circumstances beyond the party’s control,” as opposed to a refusal to comply. No. CIV. 05-00479 SPK-LEK, 2007 WL 1521252, at *9 (D. Haw. May 22, 2007), supplemented,No. 05-00496 SPK-LEK, 2007 WL 1576467 (D. Haw. May 29, 2007). In these cases, courts have other tools at their disposal to correct noncompliance. The court can order the organization being deposed to redesignate a witness. See Dey, L.P. v. Eon Labs, Inc., No. SACV 04-00243 CJC (FMOx), 2005 WL 3578120, at *6 (C.D. Cal. Dec. 22, 2005). Or the court might decide that on the whole the witness has met the mark, and order the deposing party to submit any remaining questions in the form of interrogatories or as a request for document production. Alexander, 186 F.R.D. at 142–43; see also United States v. Mass. Indus. Fin. Agency, 162 F.R.D. 410, 412 (D. Mass. 1995).

As in most matters involving the question of discovery compliance vel non, it is critical in the 30(b)(6) context that counsel on both sides of a motion to compel (or, for that matter, for a protective order) consider not only the merits of their respective positions but also the impact of local rules, the rules of practice of the presiding judge, and the predilections and leanings of the judge who will be deciding the motion. That takes us to our next discussion: the ways in which 30(b)(6) depositions are being used in practice or, as one might say, in the field.

Keywords: litigation, Federal Rules of Civil Procedure, Rule 30(b)(6), deposition, interrogatories, discovery, protective order, sanction


Michael R. Gordon and Claudia De Palma are with Manatt, Phelps & Phillips, LLP, in
New York City, New York.

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