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.”

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