Tips for In-House Counsel to Choose a 30(b)(6) Witness

To Educate or Not to Educate?
All things being equal, of course the best witness is one who is both a good witness—one whom you can rely on to have appropriate deposition demeanor and to present professionally (particularly if the deposition will be videotaped)—and who has deep substantive knowledge of all of the areas listed in the deposition notice. But counsel doesn’t always hit the jackpot when it comes to witnesses, and often you must make a strategic choice.

To educate or not to educate? The answer will generally depend on the subject matter being addressed. If the topics are of general corporate background or history, it is relatively easy to educate a witness. For example, if the deposition is of a bank and the topics addressed in the 30(b)(6) notice are things like “the bank’s approval process and standards,” or “the normal timeline and workflow for business loans,” those topics are probably easy enough for an intelligent bank employee to learn. In that case, choose someone you can trust to have the best deposition demeanor, who you think the judge and jury will like and find credible, and educate that person on the substantive area.

By contrast, if the topics are highly detailed, it may simply be too difficult to anticipate the questions enough to educate a witness to speak eloquently about all of them. For example, if the deposition is of a technology company and the topics listed are “system integration validation” and “system architecture validation,” you would probably be best off picking a witness with deep knowledge of these technical areas and trying to counsel the witness on appropriate deposition demeanor.

Ultimately, counsel’s goal should be to avoid a witness’s being unable to answer questions within the subject matter of the deposition notice—because opposing counsel may then be able to seek another deposition with a properly prepared witness. Or even worse, the witness may start guessing at answers and could potentially testify incorrectly on behalf of the company.

When a witness needs to be educated, he or she should meet with as many people in the company as have relevant information, in order to get a full view of the topic. Counsel may even want to consider bringing in people who no longer work for the company to provide historic knowledge for the corporate designee. The designated witness should read whatever documents the company still has. Ordinarily counsel will make the witness a binder or dossier of relevant information to study.

In many ways, then, preparing for the deposition will be like cramming for an exam—the witness needs to learn the material long enough to spit it back out at the deposition. If counsel chooses to educate a witness to testify at a 30(b)(6) deposition, be sure to pick one with a good memory! But a really good 30(b)(6) witness will have good judgment as well, and will know when he or she doesn’t know the answer to the question and how to respond in that situation.

What to Do When No One Witness Will Do?
What if the deposition notice contains topics that no single person can testify about? For example, a notice may seek a witness to testify on the company’s finances as well as the technical development of a technology project. In this situation, the company can designate multiple witnesses, and tell opposing counsel in advance which topics each witness will testify about. The downside to producing multiple witnesses, however, is that each is subject to the seven-hour deposition rule—thereby doubling (or more) opposing counsel’s deposition time with your witnesses. So if it is possible to educate one witness to cover all of the 30(b)(6) topics, that may be preferable to overproducing multiple witnesses.

What if Your Witness Testifies Incorrectly?
One downside to a 30(b)(6) deposition is that it allows a single individual to testify on behalf of the company as a whole. What happens if that individual makes a factual mistake? While the better rule is that the company is not conclusively “bound,” in the sense of a judicial admission, by its representative’s answer, a 30(b)(6) deposition transcript can be used to impeach a witness. Therefore, it is imperative that a 30(b)(6) witness be properly and thoroughly prepared. A 30(b)(6) witness must know and understand that even if the witness disagrees with the company’s official position, the witness must testify as to the company’s position—the testimony is of the company, not the witness personally.

Keywords: litigation, woman advocate, witnesses, 30(b)(6) depositions, corporate depositions, witness preparation

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