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January 31, 2018 Practice Points

Making Sure the Correct 30(b)(6) Witness Is Produced in Response to Your Notice

A dispute routinely arises even among the most seasoned litigators as to what the text of the rule actually means and who the corporation must designate to testify on its behalf.

By Michelle Molinaro Burke

We all know that Federal Rule of Civil Procedure 30(b)(6) permits a party to notice or subpoena the deposition of “a public or private corporation, a partnership, an association, a governmental agency or other entity and must describe with reasonable particularity the matters for examination.” (emphasis added). In response, the named organization “must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify.” Once noticed, “[t]he persona designated must testify about information known or reasonably available to the organization.” (emphasis added).

However, a dispute routinely arises even among the most seasoned litigators as to what this actually means and who the corporation must designate to testify on its behalf. This rule simply requires that the organization designate someone to testify on behalf of the corporation. It does not mean that the organization must literally produce for deposition the person with the most knowledge on a particular subject. The witness ultimately chosen will give testimony that binds the corporation, and as such, the witness can be anyone of the organization’s choosing—current employees, former employees, or anyone on the outside—who agrees to testify on behalf of the organization. Thus, the other side should have no say on the identity or position of the witness that is ultimately produced. The organization then has an obligation to educate the witness on the requested topics so that the witness can testify as the organization’s knowledge, not to be confused with the witness’s knowledge, on the subject.

Key to ensuring that the deposition garners the information you are looking for is crafting a suitable notice of deposition with specific topics that you intend to explore at the deposition. The topics should be “reasonably particular” as the rules require, but should also be loosely drafted to avoid an objection that the topic sought to be covered was not part of the deposition notice. To this point, it may be helpful to prepare the deposition outline before preparing the deposition notice. 

The timing of the 30(b)(6) deposition should also be considered. If noticed at the beginning of a case, the deposition could provide a roadmap for you to conduct remaining discovery against the organization and could help identify fact witnesses that should be deposed, as well as corporate document-retention policies that could help focus future requests for production. At the end of the case, the deposition could help fill gaps created by documents or other testimony. Thus, careful timing of the deposition could help streamline the issues and avoid future claims that discovery sought against the organization is a fishing expedition. 

Once the deposition is underway, and it is clear that the witness that has been produced has not been prepared to testify about the topics in the deposition notice, a decision must be made: (1) Attempt to establish that the witness is not the “right” witness to testify on the requested issues; or (2) Attempt to establish that the witness is the “right” witness to testify, and then establish that the witness is not knowledgeable on the issues. The former approach should be used when the deposition is a needed fact-finding mission and as a way to set up a motion to compel the appearance of a different witness. In this case, once it is determined that the witness is not the right one, it is important to not ask too many questions that will give away your approach to the deposition if a new witness is produced. The latter should be employed when the witness’s lack of information is advantageous to the other side. If the witness does not have knowledge, and is unable to ascertain information from corporate records, then the organization may be precluded from introducing testimony on these areas at trial. QBE Ins. Corp. v. Jorda Enterprises, Inc., Case No. 10-21107-CIV, ___F.R.D.___, 2012 WL 266431 (S.D. Fla., Jan. 30, 2012) and United States v. Taylor, 166 F.R.D. 356, 361 (M.D. N.C. 1996).

Michelle Molinaro Burke is with Porzio, Bromberg & Newman, P.C. in Morristown, New Jersey and New York, New York.

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