October 27, 2011 Articles

Protecting Work Product in Rule 30(b)(6) Depositions

There is a particular attorney work-product objection to keep in mind if you have received, or are working to prepare, a 30(b)(6) deposition notice.

By Gillian G. W. Egan

A deposition notice of a corporate designee under Federal Rule of Civil Procedure 30(b)(6) can be a common source for objections based on the attorney work-product doctrine. The very nature of a 30(b)(6) deposition makes it almost certain that the deponent has had to review documents or other discovery with the corporation’s attorney during deposition preparation. There is a particular attorney work-product objection to keep in mind if you have received, or are working to prepare, a 30(b)(6) deposition notice. It is called the “selection and compilation” theory of discovery documents, and it has been widely cited nationwide in cases involving discovery disputes, even cases in which opposing counsel invoked Rule 612 of the Federal Rules of Evidence in an attempt to compel production of collected documents.

In many jurisdictions, if a Rule 30(b)(6) deposition notice asks the corporate designee to produce or provide a list of documents that the corporate attorney has culled from a larger body of documents, the attorney may object even if the documents are otherwise discoverable. The corporate attorney’s strategy, focus, and case theory may all potentially be learned by reviewing what portions of the case file he or she finds noteworthy enough to provide to the corporate designee for review before the deposition. This is especially true if the overall discovery process has yielded voluminous documents. It takes time and legal skill to review hundreds of thousands of documents and select a few hundred that are most relevant, and many courts will protect the application of such legal analysis by denying requests for lists or collections of documents pulled by an attorney out of the general discovery pile, even in the face of rules providing that documents used to prepare for testimony must ordinarily be disclosed at the time of the testimony.

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