March 20, 2017 Articles

    Three Things Not to Do When Defending a 30(b)(6) Deposition

    Depositions of a corporate designee have the potential to be very useful, even for the party defending the deposition

    by Helene Hechtkopf

    Depositions of a corporate designee pursuant to Federal Rule of Civil Procedure 30(b)(6) have the potential to be very useful, even for the party defending the deposition. It’s an opportunity for the company to put its position on the record and clarify issues that would otherwise remain hazy if left only to traditional fact witnesses. That opportunity can be squandered, however, if you are not prepared for the deposition or try to thwart the deposition because of the scope of the questions asked.

    If you want to take full advantage of the opportunity, here are three things to avoid:

    1. Don’t Forget to Prepare Your Witness

    One of the biggest differences between a traditional deposition and a Rule 30(b)(6) deposition is that at a Rule 30(b)(6) deposition, the responding party chooses the witness. The deposition notice must specify the topics on which testimony will be sought, and the responding party has an obligation to present a witness who will be able to answer questions on those topics. The lawyer for the party being deposed then has a tall task ahead: The witness must be educated on each topic listed in the notice. This can—and should—involve having the witness interview or meet with various people at the company, including former employees when necessary, and having the witness study corporate documents or records or emails. If the witness is not properly prepared, opposing counsel can seek to have another witness deposed on those topics that the first witness was unable to testify about competently.

    In some cases, a witness may already have the substantive knowledge to generally answer the questions that would be expected based on the topics listed in the deposition notice. Nevertheless, the witness needs to be educated anyway, to make sure that the witness’s opinion is consistent with the position of the company as a whole (and, of course, to remind the witness of general deposition demeanor). It is important that the witness understands that his or her opinion is not what is sought in a Rule 30(b)(6) deposition—only the company’s “opinion” matters. Even if the witness has a different personal opinion from that of the company, the witness must testify as to the company’s official opinion.

    2. Don’t Object to Questions Outside the Scope of the Deposition Notice

    Rule 30(b)(6) deposition notices are required to list the topics that the deposition will be about. Nevertheless, it is not uncommon for counsel to stray outside these areas and ask questions outside the scope of the deposition notice. This is not the time to prevent your witness from answering those questions, however. While you would be advised to object to these questions as outside the scope of the deposition notice, your witness should continue to answer these questions. Federal Rule of Civil Procedure 30(c)(2) states that “[a] person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).” This does not allow you to instruct your witness not to answer simply because the question is outside the scope of the deposition notice. Nor is a court likely to issue a protective order. The courts have noted that while Rule 30(b)(6) requires the topics of the deposition to be described with “reasonable particularity,” the deposition notice “establishes the minimum about which the witness must be prepared to testify, not the maximum.” Loop AI Labs v. Gatti, 2016 U.S. Dist. LEXIS 114247 (N.D. Cal. 2016). The deposition notice cannot be used to limit the topics to which the deponent may testify.

    Instead, the court will generally treat the testimony in response to questions outside the scope of the Rule 30(b)(6) deposition notice as personal testimony, rather than corporate testimony. This is a time saver because, otherwise, the opposing counsel could just take a personal deposition of that witness. Testimony on topics outside the scope of the deposition notice will not bind the corporation, however, although they are admissible as admissions of the deponent. Wis. Alumni Research Found. v. Apple, Inc., 2015 U.S. Dist. LEXIS 138745 (W.D. Wis. 2015).

    3. Don’t Forget to Have the Witness Review the Transcript

    As with any deposition, don’t forget to have your witness review the transcript after the deposition is complete. Particularly given the binding effect of a 30(b)(6) deposition on the corporation, it is important to make sure that your only-too-human court reporter correctly recorded the deposition and that the testimony is indeed accurate.

     

    Helene Hechtkopf is a partner at Hoguet Newman Regal & Kenney, LLP, in New York City, New York.

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