July 26, 2016 Practice Points

Preparing for a Corporate Representative

By Whitney Frazier Watt

Rule 30(b)(6) obligates a corporation to provide, through one or more designated representatives, its interpretation of events, documents, and positions of other witnesses in the case. This article is intended to provide pointers on how to respond to a 30(b)(6) notice and prepare for the deposition.

Receipt of the 30(b)(6) Notice

  • Carefully review the notice. The 30(b)(6) notice must "describe with reasonable particularity the matters for examination." If there are vague or confusing categories or overly broad designations, consider consulting with opposing counsel to "define" the designated areas. If you cannot reach agreement, consider seeking a protective order. Objecting to the scope of the designated areas does not excuse the duty to comply with the notice.
  • Discuss the notice with your client. Set aside time to address the Rule 30(b)(6) notice with your client. Discuss who should be designated to respond and how the witness(es) will be prepared. It is important that you educate your client concerning the impact of the 30(b)(6) witness' testimony.

Selecting the 30(b)(6) Witness(es)

  • Who can be a 30(b)(6) witness? Anyone can serve as a 30(b)(6) witness as long as that person can be appropriately educated on the areas designated in the notice. This includes: current employees, former employees, and third parties retained by the company.
  • Desirable characteristics. The depth of personal knowledge or position in the company is not crucial in selecting a witness. The 30(b)(6) witness(es) should be articulate, cooperative, credible, likeable, and comfortable in a deposition setting. You want a witness who will tell the organization's story well.

Responding to the 30(b)(6) Notice

  • Confirm agreements relating to the deposition in writing. Identify the areas of disagreement (and agreement) in writing before the deposition and on the record during the deposition. Remember that you might be in front of the court on these issues. Keep in mind that it is always preferable to try to reach an agreement regarding the scope of the deposition.
  • The designated areas, witnesses, and deposition location. After the designated areas have been narrowed and the 30(b)(6) witness(es) have been selected, you must identify the witness(es) for the party who noticed the deposition. For the deposition, choose a location that is convenient for your client's witness(es) and make sure it is a place where the witness(es) will not be distracted by day-to-day work.

Preparing the 30(b)(6) Witness(es)

  • Knowledge required by the witness(es). The witness(es) must have knowledge concerning all responsive information "known or reasonably available" to the organization. If a witness fails to testify appropriately, sanctions are available pursuant to Rule 37.
  • Attorney's role. In preparing the 30(b)(6) witness(es), the attorney should be involved in selecting the documents to be reviewed by the witness, facilitating meetings between the witness(es) and individuals with relevant knowledge, educating the witness on the themes in the case, and making sure that the witness understands the deposition setting and how to respond to the "hard" questions.
  • Privilege waiver. It is important to take into consideration the applicable law on privilege and work product when preparing each witness because in some jurisdictions such privileges may be waived if the witness is shown confidential documents or work product during preparation.
  • Written response as a reference for the witness(es). Consider preparing a written response to each designated topic area in the notice for the witness(es) to use as a reference during the deposition. While discoverable like an interrogatory answer, the responses can make the witness(es) more comfortable.

Practical Tips For the 30(b)(6) Witness

  • The witness should be familiar with the organization's structure, policies, and information on the corporation's website.
  • The witness should present the organization's viewpoint, not his or her own opinions or beliefs.
  • During the deposition, remind the witness to be courteous and respectful and avoid sarcasm and outbursts throughout the questioning. The witness should never be argumentative, just careful.
  • Instruct the witness to disregard comments that are intended to make him or her feel like he or she failed their obligations as a 30(b)(6) witness.
  • Work with the witness to carefully choose his or her words. While words can often "mean" the same thing, their connotative meanings may be vastly different.
  • Have the witness be able to explain why he or she is not testifying on a particular area if articulated in the 30(b)(6) notice. Also review and discuss any prior deposition testimony given by the witness, particularly if in a 30(b)(6) deposition.
  • Tell the witness to tell the truth.

Whitney Frazier Watt is with Stites & Harbison, PLLC, in Louisville, Kentucky.


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