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November 27, 2018 Practice Points

Adequately Preparing a Corporate Representative for Deposition

By Ilana Drescher

Your corporate client just received a notice pursuant to Rule 30(b)(6) directing its corporate representative to be prepared to testify about every time a past, present, or future employee of the company sneezed over the last 15 years. Now what?

Before you start frantically collecting decades-old records from the nurse’s station for the witness to memorize, take a moment to review the relevant statute and recent case law.

Pursuant to Federal Rule of Civil Procedure 30(b)(6), an organization must “designate one or more officers, directors, or . . . other persons . . . to testify on its behalf” and these persons “must testify about information known or reasonably available to the organization.” If you’ve received a Rule 30(b)(6) deposition notice that seems unreasonable, the first step may be to pick up the phone and call opposing counsel. You can remind your opponent that a corporate deponent must be prepared to answer questions concerning relevant facts reasonably known to the corporation, but need not be prepared to answer questions about any potentially relevant fact known by any employee of the corporation. See Penn Mutual Life Ins. Co., v. Imperial Premium Finance, LLC, No. 11-80818-MC, 2011 WL 13228574, *4 (S.D. Fla. Sept. 14, 2011) (citing Banks v. Office of the Senate Sergeant-At-Arms, 241 F.R.D. 370, 373-75 (D.D.C. 2007)). Hopefully, you will be able to reach an amicable agreement about the reasonable bounds of the corporate representative’s testimony.

If such an agreement is not possible, the Southern District of Florida recently addressed the question of what constitutes adequate preparation of a corporate witness. See Lebron v. Royal Caribbean, 16-24687-CIV (S.D. Fl. Sept. 6, 2018). In that case, the plaintiff’s Rule 30(b)(6) notice listed 41 broad areas of inquiry. After the deposition, the plaintiff moved for sanctions and to compel a second corporate deposition, alleging that the corporate representative was not adequately prepared to testify.

The court denied the plaintiff’s motion. In doing so, the court relied on three key principles: (1) Rule 30(b)(6) does not require a corporate representative to provide testimony regarding information that the corporation does not have, but rather requires an organization to testify about information known or reasonably available to the organization; (2) Rule 30(b)(6) does not require a deponent to testify with computer-like detail as to unreasonably broad topics; and (3) Rule 30(b)(6), pursuant to Federal Rule of Civil Procedure 26, does not require a deponent to be prepared to testify to matters that are not relevant to any party's claim or defense.

In sum, the court stated that “the deponent’s inability to answer all of Plaintiff's Counsel’s questions was primarily due to the vague and broad descriptions for the areas of inquiry, coupled with the Plaintiff's unreasonable expectation that the witness should have been able to provide detailed answers to questions that were only tangentially related to the claims and defenses raised by the Parties.”

So, the next time you receive a deposition notice pursuant to Rule 30(b)(6), before preparing your witness, be sure to ask yourself whether the designated areas of inquiry are reasonable both in scope and description. “Rule 30(b)(6) is not designed to be a memory contest,” and a deponent does not have to successfully answer every question posed by the opposing party to complete a deposition. Penn Mutual, 2011 WL 13228574 at *4.

Ilana Drescher is an associate with Bilzin Sumberg Baena Price & Axelrod LLP in Miami, Florida.

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