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January 31, 2020 Practice Points

Tips for Taking Rule 30(b)(6) Depositions of Parties or Nonparties

As with any discovery, knowledge of the relevant rules, preparation, and cooperation with opposing counsel are important.

By Andrew M. Toft

Rule 30(b)(6) of the Federal Rules of Civil Procedure (FRCP) authorizes a party to notice or subpoena a business organization, governmental agency, or other entity regarding designated topics of examination. Doing so requires the party noticed, or nonparty subpoenaed, to designate “one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf.” This can be a very useful and productive discovery tool for attorneys familiar with the rule, its comments, and its history. What follows are seven tips for litigators without this baseline familiarity.

  1. Read FRCP 30 and FRCP 26 in their entirety.
  2. Read the advisory committee comments to FRCP 30 and FRCP 26 in their entirety.

    These first two tips seem obvious to an experienced litigator, but consider how many discovery disputes still arise out of the refusal of attorneys to stop making boilerplate discovery objections despite the fact the 2015 amendments to FRCP 26 were intended to stop their use. A thorough knowledge of the text of FRCP 30 and FRCP 26 and their committee comments may help convince opposing counsel to stop obstreperous behavior. If not, the magistrate or judge will appreciate the fact you have read and understand the rules and comments. For example, the notes of the Advisory Committee on Rules for the 1993 Amendments to Rule 30 state in part:

    A deposition under Rule 30(b)(6) should, for purposes of this limit, be treated as a single deposition even though more than one person may be designated to testify

    Just seven years later, the Committee Notes on Rules for the 2000 Amendments to Rule 30 state in part:

    For purposes of this durational limit, the deposition of each person designated under Rule 30(b)(6) should be considered a separate deposition.

    A thorough understanding of rules and their history as discussed in the committee notes is imperative for convincing the judge to interpret and apply the rules in your client’s favor.
  3. If you contemplate taking a Rule 30(b)(6) deposition, start those discussions during the 26(f) conference and consider whether the discovery plan needs to include a provision for how a 30(b)(6) deposition will be viewed for purposes of durational limit and the permitted number of discovery depositions. It is better to have the magistrate or judge provide guidance early in the case if there is a disagreement.
  4. While the individuals designated to testify by a party can be required to bring documents to the Rule 30(b)(6) deposition, it is always the better practice to conduct discovery well in advance of the deposition to obtain the documents to be used during the deposition. Failing to do so will waste valuable time during the deposition.
  5. Beware the opponent who pressures you to take a Rule 30(b)(6) deposition before you have conducted the written discovery you feel is necessary. Based on experience, this can be a signal that there are facts or witnesses that your opponent is trying to shield or otherwise protect from discovery. The louder the protests, the greater the chance that something or someone with as-yet-undiscovered information is being protected.
  6. If a notice or subpoena is issued under Rule 30(b)(6), the rule requires the notice or subpoena describe with reasonable particularity the matters for examination. If the topics for examination are not adequately particularized, a court may deny a motion to compel a 30(b)(6) deposition or it may quash a deposition notice. In addition, a court may limit a Rule 30(b)(6) notice if it requests the organization to designate one or more deponents to testify on topics that are overly broad, vague, or ambiguous. Conferring, or attempting to confer, with opposing counsel if there is a dispute whether topics are described with reasonable particularity may help avoid a hearing.
  7. Case law states that the duty to present and prepare a Rule 30(b)(6) designee goes beyond matters personally known to the designee or to matters in which that designee was personally involved. The party noticed or nonparty subpoenaed must prepare the designee to the extent that information is reasonably available, whether from documents, past employees, or other sources. The rule is clear that the persons designated to testify must testify about information known or reasonably available to the organization, not just based on the designee’s personal knowledge.

As with all parts of pretrial practice and discovery, only by plying your craft and learning from your experiences will you hone you skills for taking a 30(b)(6) deposition.

Andrew M. Toft is an attorney in Denver, Colorado.

Copyright © 2020, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).