November 25, 2020 Practice Points

How to Make the Most Out of a Rule 30(b)(6) Deposition

A guide touching on witnesses, preparation, documents, and remedies to help litigators make the most out of such a deposition.

By Kathryn Knudsen

A Rule 30(b)(6) deposition provides a unique opportunity to obtain admissions from a corporate party, a governmental agency, or other entity. Without it, an adverse party must rely on patchwork testimony from employees or officers. Obtaining valuable, binding testimony from a corporation can be challenging—which may explain why many litigators underutilize this tool.  The following tutorial can help litigators make the most out of such a deposition.

Witnesses

Fed. R. Civ. P. 30(b)(6) requires an entity to “designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; . . . The persons designated must testify about information known or reasonably available to the organization.” It is the duty of the corporation to designate one or more witnesses to provide knowledgeable testimony about all matters set forth in a Rule 30(b)(6) notice. To that end, the corporation is required to undertake a “diligent inquiry” to determine the best person to testify. Poole v. Textron, Inc., 192 F.R.D. 494, 503 (D. Md. 2000) (quoting Civil Discovery Standards, American Bar Association, Section of Litigation, August 1999). When one witness cannot testify about all the notice topics, the corporation must designate as many witnesses as necessary to respond to each area of inquiry. Alexander v. F.B.I., 186 F.R.D. 137, 141 (D.D.C. 1998). If it appears during the deposition that the designated witness is unknowledgeable or unprepared to testify on a certain topic, inquire as to whether there is a more knowledgeable person at the company. If the designee confirms your suspicion, this fact can be used as evidence that the witness was not adequately prepared and may amount to the entity failing to appear for its deposition. See Heartland Surgical Specialty Hosp., LLC v. Midwest Div., Inc., 05-2164-MLB-DWB, 2007 WL 1054279, at *6 (D. Kan. Apr. 9, 2007).

Preparation

Rule 30(b)(6) mandates that the witness be prepared to testify not only about information known to him or her, but also about matters that should be known by the corporation. Alexander, 186 F.R.D. at 141. The purpose of this is fairness—to prevent “sandbagging” of the other party by providing a half-hearted witness at deposition and more thorough and vigorous testimony at trial. United States v. Taylor, 166 F.R.D. 356, 362 (M.D.N.C. 1996). In addition to providing factual testimony, the Rule 30(b)(6) witness must be able to testify about the corporation’s subjective beliefs and opinions. Id. at 361.

Preparation requires the witness to be ready to testify about information reasonably available to the entity, whether the information derives from documents, current or former employees, or other sources. Bank of New York v. Meridian BIAO Bank of Tanzania Ltd., 171 F.R.D. 135, 151 (1997). A corporation cannot refuse to designate witnesses by responding that it cannot produce someone with personal knowledge on the deposition topic. Sprint Commc’ns Co., L.P. v. Theglobe.com, Inc., 236 F.R.D. 524, 528 (D. Kan. 2006). Likewise, that a witness’s deposition preparation might be burdensome is no excuse. Ice Corp. v. Hamilton Sundstrand Corp., 05-4135-JAR, 2007 WL 1500311, at *3 (D. Kan. May 21, 2007).

Documents

Under Fed. R. Civ. P. 30(b)(2), the deposition notice may also include a request for documents. Keep in mind that “[p]roducing documents at the deposition in lieu of testimony . . . is not a substitute for providing an educated deponent. . . . Indeed, such conduct smacks of gamesmanship.” Pioneer Drive, LLC v. Nissan Diesel Am., Inc., 262 F.R.D. 552, 559 (D. Mont. 2009) (citation omitted). Thus, when a Rule 30(b)(6) notice includes document requests, the corporation should produce a witness prepared to discuss both the deposition topics and any corresponding responsive documents.

Remedies

Not all hope is lost when an entity produces an unknowledgeable witness or fails to produce responsive documents. When it becomes obvious during the deposition that the witness is unwilling or unprepared to testify on the notice topics, be sure to obtain admissions on the record establishing the witness’s lack of knowledge, failure to prepare, or failure to search for responsive documents. This will give you the foundation to file a motion to compel and for Rule 37 sanctions because such conduct is tantamount to a failure to appear. In addition to asking for attorney fees and costs related to the deposition, consider requesting an order requiring the entity to designate knowledgeable witnesses to provide additional Rule 30(b)(6) deposition testimony at the entity’s expense. 

Kathryn Knudsen is an attorney at Ruiz & Smart Plaintiff Litigation in Seattle, Washington. 


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