Anyone who has defended a deposition pursuant to Federal Rule of Civil Procedure 30(b)(6) has worried about harmful or deficient testimony that will come back to haunt the client. Of course, obtaining that harmful testimony is a primary goal of the lawyer sitting on the other side of the table. There is no question that such testimony is “binding on the corporation.” But what precisely does that mean? Does the adversary have a free pass either to exclude contrary evidence or to use the damaging testimony without challenge at trial? It depends. Often the extent to which a court will allow a party to introduce contrary evidence seems to correlate directly with the degree to which a 30(b)(6) witness was adequately prepared and, thus, is intertwined with sanctions. This article addresses the differing approaches taken by courts and suggests possible ways to remedy harmful 30(b)(6) testimony before trial or motion practice. These issues are of particular importance to law firms, accounting firms, and other institutional clients, given the proliferation of Rule 30(b)(6) practice in professional liability cases.
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